eStore Terms and Conditions

Terms and Conditions

Metagenics Canada OnlineTM Webpage Agreement – ReSaleeStore

THIS METAGENICS CANADA ONLINETM WEBPAGE AGREEMENT – RESALE ESTORE (this “Agreement”) is effective as of the date signed by Practitioner (the “Effective Date”) by and between Metagenics Canada, Inc., a corporation organized and existing under the laws of the Province of Ontario, with offices at 3250 Ridgeway Drive, Unit 15, Mississauga, ON L5L 5Y6, Canada (“Metagenics”), and the undersigned Practitioner (“Practitioner”).


A.        Metagenics is a life sciences company that manufactures natural health products, nutritional products, dietary supplements, dietary ingredients, and medical foods for sale in commerce based upon Metagenics’ own formulas or recipes or upon formulas or recipes obtained pursuant to license (or which exist in the public domain).

B.        Metagenics has developed software (the “Software”) for the establishment and operation of separate webpages for the sale of Metagenics products by healthcare practitioners, which webpages are identified specifically to an individual healthcare practitioner and serve the needs of such individual practitioner’s own patients.

C.        Practitioner is interested in establishing a unique webpage (the “Webpage”) on Metagenics’ website, through which Practitioner will sell Metagenics dietary supplements and medical foods to Practitioner’s patients, for the purposes of (i) providing patient convenience, (ii) meeting specified nutritional protocols established by Practitioner, (iii) improving patient compliance with such recommended protocols, and (iv) tracking patients’ actual compliance with such protocols.

D.        Metagenics desires to use Practitioner’s name and logo on the Webpage, and Practitioner is willing to grant Metagenics the right to use Practitioner’s name and logo on the Webpage, pursuant to the terms and conditions of this Agreement.

NOW, THEREFORE, the parties hereto hereby agree as follows:

  1. DEFINITIONS.  The terms set forth below shall be defined as follows:
    1. Confidential Information” of a party is information which the party claiming confidentiality designates as “Confidential,” including without limitation any computer code, Content (as described below), other content, documentation, marketing plans or other similar information.  “Confidential Information” of Metagenics includes the source code of the Software.
    2. Software” shall mean all software and any software tools, both in object code and source code form, which Metagenics has already developed (or which Metagenics subsequently develops) or which Metagenics licenses from a third party, for establishing and maintaining Practitioner’s Webpage.
    3. Webpage” shall mean the unique page established using Practitioner’s name and logo, on Metagenics’ own website, using the Software, and maintained and supported on the Metagenics server.
    1. Purpose.  The purpose of Practitioner’s Webpage shall include, without limitation, the dissemination of information, the display of Metagenics products for order and purchase, the presentation of advertising, and other purposes.
    2. License.  Practitioner hereby grants to Metagenics a non-exclusive, non-assignable license to use Practitioner’s name and logo for all uses necessary or appropriate to the operation of Practitioner’s Webpage, in accordance with the terms and conditions of this Agreement.
    3. Content of the Webpage.  The Webpage will be based upon Metagenics content.  The Webpage will use the Software to implement product purchasing, data collection, and Practitioner-authorized information tracking.
    4. Server for the Webpage.  The Software and the Webpage will reside upon a server provided by Metagenics.
    5. Development Services.  Metagenics will provide design, programming, development and other services relating to the Webpage.


Metagenics shall provide the following ongoing Webpage support to Practitioner.

  1. Establishment of Webpage on Metagenics Server.  Metagenics will establish Practitioner’s Webpage as part of Metagenics’ own website, which is on a server provided by Metagenics and under Metagenics’ control, support, and maintenance.
  2. Availability.  Unless otherwise agreed between the parties, Metagenics shall use commercially reasonable efforts to make Practitioner’s Webpage publicly available to users twenty-four (24) hours per day, seven (7) days per week.
  3. Content.  Practitioner shall not supplement, modify or alter any content on Practitioner’s Webpage, unless any such change has been consented to by Metagenics.  Metagenics will provide password protected access for Practitioner.
  4. Backup.  Metagenics shall maintain a complete and current copy of Metagenics’ website on a separate server.  In the event that service is interrupted to Metagenics’ website, the separate server shall be activated so that public access to Practitioner’s Webpage may continue uninterrupted or as close as possible under the circumstances.
  5. Privacy Policy; Patient Data.  The parties agree that a privacy policy shall exist that conforms with applicable privacy laws (“Privacy Laws”) and shall maintain that policy with respect to Practitioner’s Webpage.  Such privacy policy shall be subject to any additional privacy limitations placed by MasterCard, Visa or other Internet payment processing companies through which sales on Practitioner’s Webpage may be charged.  Patient data will be maintained on a secure server provided by Metagenics.  Metagenics will use commercially reasonable efforts to provide Practitioner access to the patient data twenty four (24) hours per day, seven (7) days per week, and Metagenics will provide Practitioner with passcodes and technical assistance as may be necessary for permitting such access.  The parties agree to the Data Protection Addendum attached hereto and incorporated herein by this reference.


  1. Shopping Cart Features.  Metagenics will use its online shopping cart application which will be customized for Practitioner’s Webpage to manage the shopping experience of visitors to Practitioner’s Webpage.
  2. Product Selection for the Webpage.  Practitioner is responsible for determining the applicable nutritional protocol, and for selecting the natural health products, to support the needs of the patients who will be directed to Practitioner’s Webpage to purchase products.  Metagenics maintains an on-line catalog of products from which Practitioner may select to make Practitioner’s recommendations.
  3. Ordering from the Webpage.  Completed orders will be communicated from Practitioner’s Webpage directly to Metagenics’ distribution center.  Products will be shipped from the distribution center to the patient using shipping documents and shipping labels that include Practitioner’s name and Metagenics’ return address.
  4. Inventory Levels.  Throughout the Term of this Agreement, Metagenics shall use commercially reasonable efforts to maintain appropriate levels of inventory at the Metagenics distribution center to meet patients’ demand for the products listed on Practitioner’s Webpage.  Metagenics will assist in establishing inventory levels to reflect the actual sales performance of each product SKU.
  5. Shipping Charges; Undeliverable Shipments; Satisfaction Guarantee; Product Recalls.
    1. Shipping charges (from the Metagenics distribution center) will be paid by the patient.  Metagenics will determine and charge the appropriate shipping/handling charge per outgoing order.
    2. Metagenics will be responsible for undeliverable or damaged shipments from Metagenics to patients, and Metagenics will handle such damaged shipments according to its then-current policy regarding such shipments.
    3. Practitioner will specify the satisfaction guarantee policy to which products will be subject or, in the absence of such specification, the then-current Metagenics satisfaction guarantee policy.
    4. Metagenics will be responsible for product recalls.
  6. Product Pricing.  Metagenics will recommend to Practitioner a suggested retail price (SRP) for each product SKU offered on Practitioner’s Webpage, but it shall be Practitioner’s responsibility to set the actual retail price to patients.


  1. Products.  The price from Metagenics to Practitioner for products purchased by patients from Practitioner’s Webpage shall be Metagenics’ then-current practitioner price for such products.
  2. Reporting.  Practitioner will have access to sales reports.  Within twenty (20) calendar days after the close of each calendar quarter, Metagenics will provide Practitioner with an accounting of sales made from Practitioner’s Webpage.
  3. Payment.  Practitioner will open Practitioner’s own individual account with the WePay processing service (“WePay”).  Patients will purchase products from Practitioner’s Webpage through Practitioner’s WePay account.  Patients will make payments for products by an approved method of payment, which shall include providing the Patient’s credit card information to WePay.  WePay shall deduct its transaction fees and, on behalf of Practitioner, WePay shall remit to Metagenics the applicable price for the products purchased by patients on Practitioner’s Webpage.
    1. Bank fees, credit card transaction fees, and WePay transaction fees are included in the price paid by the patient.
  4. Credit and Collections.  Practitioner shall be responsible for credits and collections relating to products purchased through Practitioner’s WePay account.

5.5       Sales Taxes.  In all jurisdictions that permit or require a marketplace facilitator, marketplace provider, or other similar person to collect and remit sales, use, transaction privilege, gross receipts, value-added, provincial, excise or similar transaction taxes (collectively, “Sales Taxes”), Metagenics will collect and remit Sales Taxes to the appropriate taxing authority.  Practitioner agrees to provide Metagenics with all information or documentation to support such treatment, including its Sales Tax registration numbers.

In all other jurisdictions or where Metagenics is not acting as a marketplace facilitator or other similar person, Practitioner shall be responsible to collect and remit Sales Taxes to the appropriate taxing authority.  In such non-marketplace facilitator jurisdictions or where Metagenics is not acting as a marketplace facilitator or similar person, Practitioner agrees that Practitioner will indemnify Metagenics for all Sales Tax, interest, and penalties asserted or assessed against Metagenics by a taxing authority with respect to Practitioner’s sales, as well as for reasonable costs to defend against such assertions or assessments.

In all jurisdictions, Practitioner agrees that Practitioner will indemnify and hold harmless Metagenics from all losses related to assessments, false claims, qui tam, and class action lawsuits with respect to Practitioner’s sales that may arise in such jurisdictions and that relate to the correct taxability of an item or the correct tax rate.



  1. Practitioner Responsibility.  Practitioner shall be responsible for recommending particular products for use by the patient, including how much, how often, and for how long such products should be used.  Practitioner will be responsible for tracking protocol compliance on the part of patients.
  2. Metagenics Responsibility.  Metagenics shall be responsible for providing customer service for patients ordering products through Practitioner’s Webpage, as said service relates to informing patients of product specifications, shipment status, return authorizations, product promotions, and similar matters.
  3. Communications.  Throughout each business day, on a necessary and appropriate basis (and in real time, if required), each party will keep the other informed of the support provided to patients.


  1. Term.  This Agreement shall have an initial term of one (1) year from the Effective Date (the “Initial Term”); thereafter, this Agreement may be renewed for additional terms of one (1) year (each, a “Renewal Term” and, together with the Initial Term, the “Term”) and shall be considered automatically so renewed if neither party has given the other written notice of intention to terminate this Agreement at least sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term.
  2. Termination for Cause.  Either party may terminate this Agreement upon a material breach of this Agreement by the other party (or, in the case of a breach by Practitioner, the breach by Practitioner of an applicable Metagenics policy), if such breach remains uncured for thirty (30) days following written notice to the breaching party.
  3. Termination without Cause.  Either party may terminate this Agreement, at any time, without cause, by giving at least ninety (90) days’ prior written notice to the other party.
  4. Effect of Termination.

7.4.1    Removal of Name and logo.  Upon the termination of this Agreement for any reason, Metagenics shall promptly remove Practitioner’s name and logo from the Webpage and shall use commercially reasonable efforts to remove any references to Practitioner’s name and logo from Metagenics’ website.

7.4.2    Termination of Licenses.  Upon termination of this Agreement for any reason, any license granted hereunder shall terminate.

7.4.3    Survival.  Sections 10, 11, 12, and 13 shall survive any termination or expiration of this Agreement.


  1. Work Product Warranties.  Metagenics represents and warrants to Practitioner that the Software, the Webpage, and Metagenics-made changes to the Webpage do not and will not (a) infringe on the intellectual property rights of any third party or (b) violate any law or regulation.
  2. Support and Maintenance Warranties.  Metagenics further represents and warrants to Practitioner that, at all times during which Metagenics provides web-hosting services pursuant to Section 3 of this Agreement, it will use commercially reasonable efforts to ensure the following:
    1. Availability of the Webpage.  The Webpage will be publicly available to users a minimum of ninety-five percent (95%) of the time, seven (7) days per week, twenty-four (24) hours per day.  Customer Service will be available during business hours, Monday through Friday, 8:00 am – 5:00 pm (Pacific Time).
    2. Bandwidth of Metagenics’ Website.  The Metagenics website’s connection to the Internet shall be sufficient to provide accessibility commensurate with that expected by the consuming public and of a grade equal to that provided by similar sites.  The goal shall be to prevent any user delays from accessing Practitioner’s Webpage, subject to Internet-related delays that are not within Metagenics’ control.
    3. Security of Metagenics’ Website.  Metagenics shall prevent unauthorized access to any shadow site of its website, other restricted areas of its website, and any databases or other sensitive material generated from or used in conjunction with its website, provided, however, that Practitioner understands and acknowledges that Metagenics shall not be held responsible for the effects of malicious hacking or other concerted criminal and illegal activities on the part of third parties in relation hereto.


Practitioner represents and warrants that Practitioner will not use any advertising material with respect to the products available on Practitioner’s Webpage that:  (a) infringes any intellectual property right of any third party, (b) is false or provides a misleading statement of material fact or (c) violates any law or regulation.


  1. Ownership of the Website.  Practitioner acknowledges and agrees that Metagenics owns the Software and all of the computer code on and relating to Metagenics’ website.
  2. Ownership of Content.  All content contributed by Metagenics shall be owned by Metagenics.  Practitioner acknowledges and agrees that any content used on Practitioner’s Webpage shall at all times remain the property of Metagenics (or its licensor).  Practitioner shall have no rights in such content, other than the limited right to use such content for the purposes expressly set forth in this Agreement.


  1. Metagenics Indemnification.  Metagenics shall defend and hold harmless Practitioner against any third party claim, action, suit or proceeding (each, a “Claim”) (a) arising from any breach of this Agreement by Metagenics, (b) arising from the negligent acts or omissions or the willful misconduct of Metagenics or (c) alleging product liability or other Claim relating to the integrity of a Metagenics product.  Metagenics shall indemnify Practitioner for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Practitioner in defending against any such Claim.
  2. Practitioner Indemnification.  Practitioner shall defend and hold harmless Metagenics against any Claim (a) arising from any breach of this Agreement by Practitioner or (b) arising from the negligent acts or omissions or the willful misconduct of Practitioner.  Practitioner shall indemnify Metagenics for losses, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) and costs incurred by Metagenics in defending against any such Claim.
  3. Mechanics of Indemnification.  The indemnified party’s obligations are conditioned upon the indemnified party:  (a) giving the indemnifying party prompt written notice of any Claim for which the indemnified party is seeking indemnity; (b) granting control of the defense and settlement of such Claim to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.


Each party shall hold the Confidential Information of the other party in confidence and shall not (i) disclose the other party’s Confidential Information to third parties or (ii) use the other party’s Confidential Information for any purpose other than the purposes of this Agreement.  Such restrictions shall not apply to information which (a) is already known by the recipient; (b) becomes, through no act or fault of the recipient, publicly known; (c) is received by the recipient from a third party without a restriction on disclosure or use; or (d) is independently developed by the recipient without reference to the other party’s Confidential Information.




Practitioner acknowledges that Metagenics is in the business of developing its own website and of providing associated services on a commercial basis and that, accordingly, Metagenics has developed, and will continue to develop, webpages for other parties whom Practitioner may consider competitive to Practitioner’s business.  Practitioner agrees that Metagenics shall continue to be free to develop webpages for other clients.  Metagenics shall not share with its other clients any identifiable data pertaining to Practitioner’s Webpage.


Each party shall perform its respective obligations under this Agreement in compliance with the applicable laws of the jurisdictions in which this Agreement is intended to be performed.


  1. Governing Law; Venue.  This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario, without regard to conflict of law principles.  In the event that any dispute arises under this Agreement, the parties agree that proceedings will take place exclusively in Peel County, Ontario.
  2. Severability; No Waiver.  If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.  The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.  A waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
  3. Independent Contractors.  The parties to this Agreement are independent contractors and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.  Except as contemplated by the obligations of each party under this Agreement, neither party shall have the power to obligate or bind the other party.  Personnel supplied by Metagenics shall work exclusively for Metagenics and shall not, for any purpose, be considered employees or agents of Practitioner.
  4. Entire Agreement; Amendment.  This Agreement, including any exhibits attached hereto, and the provisions reference in such exhibits, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement.  Any amendments or changes to this Agreement must be in writing and signed by both parties.


IN WITNESS WHEREOF, the parties hereto have duly executed this METAGENICS CANADA ONLINETM WEBPAGE AGREEMENT – RESALE ESTORE, effective as of the Effective Date.


This Data Protection Addendum (this “DPA”) is incorporated into, and forms part of, the Metagenics Canada Online Webpage Agreement–ReSaleeStore (the “Webpage Agreement”) between Metagenics Canada, Inc. (“Metagenics”) and the signing Practitioner (“Practitioner”) to which it is attached.


  1. The objective of this DPA is to establish the rules governing the collection, use, storage, protection, and disclosure of personal health information and personal information (collectively, “PHI”) by Metagenics on behalf of Practitioner.

  2. The guiding principles of this DPA are those found in Privacy Laws, including the collection, use, and disclosure of the minimum PHI necessary to achieve the purposes set out in the Webpage Agreement.


  1. Practitioner hereby appoints Metagenics as Practitioner’s agent for the purposes of providing Practitioner with services in accordance with the Webpage Agreement, including this DPA (the “Services”), and Metagenics hereby accepts such appointment.

  2. Metagenics may collect PHI from Practitioner’s clients, from Practitioner, and from Practitioner’s employees and independent contractors as necessary for the purposes of providing the Services to Practitioner.

  3. Metagenics is authorized to collect, use, store, and disclose PHI as necessary to perform the Services in accordance with the Webpage Agreement and this DPA, as otherwise instructed by Practitioner, or as required by law.

  4. Metagenics acknowledges and agrees that PHI at all times shall remain under the control of Practitioner and that Metagenics acquires no independent right to PHI except with respect to PHI that has been rendered non-identifiable as provided for in Subsection C(1)(a) of this DPA.

  5. Metagenics agrees to provide Practitioner with unfettered access to PHI at all times.


  1. Metagenics agrees that in respect of PHI, it shall:
    1. not use PHI for any purpose other than as necessary to perform the Services, provided, however, that Metagenics may de-identify PHI such that it is rendered non-identifiable, and may use and disclose non-identifiable information for any lawful purpose;
    2. not disclose PHI to any person except:

(i)      as expressly permitted or instructed by Practitioner; or

(ii)     as required to comply with applicable laws or regulations or a valid court order or other binding requirement of a competent governmental authority.

  1. use reasonable physical, organizational, and technological security measures that are appropriate having regard to the sensitivity of the information to protect PHI against loss, theft, and unauthorized access, disclosure, copying, use, modification or disposal;
  2. restrict access to PHI to only those authorized employees and permitted agents and subcontractors who require access to such information to fulfil their job requirements and who are subject to binding obligations of confidentiality and data protection consistent with those of this DPA; and
  3. inform Practitioner at the first reasonable opportunity after becoming aware of any unauthorized access to, or use or disclosure of, PHI (each, an “Incident”), provide Practitioner with all relevant particulars of any Incident, and work with Practitioner to take reasonable steps to contain and remediate such Incident and to prevent future Incidents.


  1. Metagenics shall work with Practitioner to promote and demonstrate compliance with Privacy Laws and this DPA.

  2. Metagenics shall provide all necessary and reasonable information and co-operation to Practitioner, and to any regulatory or other governmental bodies or authorities with jurisdiction or oversight over Privacy Laws, in connection with any investigations, audits or inquiries.

  3. Metagenics shall provide all reasonable and necessary information and documentation to Practitioner to allow Practitioner to verify Metagenics’ compliance with this DPA.

  4. Metagenics shall designate and identify to Practitioner an individual to be accountable for Metagenics’ compliance with this DPA.


  1. If Metagenics receives (i) a request from a client of Practitioner for access to such client’s PHI, or to make corrections or amendments to such PHI, or (ii) an express wish from a client of Practitioner relating to disclosure of such client’s PHI, Metagenics shall inform the client that the client must make such request or express wish directly to Practitioner.  Metagenics and Practitioner shall work together to respond to such request or express wish in accordance with the requirements of Privacy Laws.


  1. Metagenics shall not destroy or dispose of any PHI, except with the express written consent of Practitioner or in accordance with this DPA or an approved data retention schedule.

  2. Upon termination of the Webpage Agreement or upon request of Practitioner at any time, Metagenics shall cease all use of, and return, dispose of, destroy, or render permanently non-identifiable, all PHI.


  1. Metagenics shall comply with Privacy Laws in providing the Services.

  2. To the extent of any inconsistency between the terms in this DPA and the terms of the Webpage Agreement as such terms may relate to PHI, the terms of this DPA shall prevail.

  3. Practitioner may terminate the Webpage Agreement immediately, upon written notice, if Metagenics fails to comply with this DPA.

  4. This DPA shall terminate upon termination of the Webpage Agreement.  Notwithstanding any termination of this DPA, the provisions of this DPA that govern Metagenics’ collection, use, disclosure, protection, and other processing of PHI shall survive until PHI is returned, disposed of, destroyed or rendered permanently non-identifiable in accordance with Section F(2) of this DPA.