503 W Robinson Street
Orlando, FL 32801
This Agreement (“Agreement”) is between Kaerwell, Inc, (“Kaerwell”, “us”, “we”, “our”) and the certified health care provider (“you”, “healthcare practitioner”, “health professional”, “user”) engaging in our Service (“Service”) as described in this Agreement. You affirm that you are a certified health care provider in the state, province or country in which you practice, and you agree to provide a W-9 and a copy of your license or credentials prior to being approved to use our Service.
By signing up for the Service, you agree that you have read, understood and agree to the terms and conditions herein.
Overview: Kaerwell offers a continuously updated upcoming and archived industry events platform, customizable online storefront and order fulfillment, payment processing, and related services (“Services”) for medical practitioners and other service providers to provide supplements to their clients and patients (“Patients”). We provide product ordering and fulfillment services so your patients can purchase any nutritional supplement within the brands you select. We will provide you with a unique web address through which your patients may place orders after registering using a Registration Code we assign to you. U.S. patients may also order toll-free by phone or email.
Arbitration Notice: These Terms contain a binding arbitration provision. You agree that, except for certain types of disputes described in the arbitration provision below, all disputes between you and Kaerwell will be resolved by mandatory binding arbitration and you waive any right to participate in a class action lawsuit or class-wide arbitration.
Eligibility: In order to use our Service, you must be a licensed Healthcare Practitioner. Furthermore, you understand that you will only be able to sell the professional brands that have allowed for their products to be sold under your licensure. Kaerwell reserves the right to refuse service to any healthcare practitioner for any reason.
Right to Access and Rules of Use: Subject to the terms and conditions of these Terms of Service, Kaerwell hereby grants to you, during the term of this Agreement, a limited, personal, revocable, non-exclusive, non-transferable right to access and use the Site solely for your internal business purposes.
In addition to meeting the eligibility requirements discussed above, you agree to comply with the following rules governing your use of our Services:
You hereby expressly acknowledge that you are solely and exclusively responsible for your compliance with any and all applicable Laws and that Kaerwell does not purport to offer any advice or information concerning potentially applicable Laws or compliance therewith. The reference to specific laws or regulations in this section or elsewhere in this Agreement shall not be read or construed to imply that such laws or regulations are applicable to you, nor that other laws or regulations are not applicable to you. Further, Kaerwell expresses no opinion with respect to the appropriateness or legality of the resale or recommendation of Products to Patients by a Health Professional. It is Your responsibility to consult with appropriate legal counsel as necessary to ensure that You are informed of and in compliance.
Patients using our service will be deemed our customers, and we reserve the right to interact with them as needed to provide the Service. However, we do not provide health advice or product/dosage recommendations, we will not send unwanted email (spam) to your patients, and we will not promote products or services to your patients unless you have authorized such promotion in advance.
We will not share personally identifying information about you or your patients with any third party without your permission, except that we may share sales information with suppliers whose products you sell through our Service (needed so vendors can compensate their sales reps.)
You agree not to display your registration code or any product price or offer associated with our Service which is lower than MSRP on any website. You further agree not to promote or attempt to sell product from our Service through any website not directly affiliated with you, such as Amazon or Ebay.
Our service fee is calculated on the gross profit. That allows you to offer thousands of more brands than using a traditional distributor. Our standard service fee is calculated as 50% of the gross profit on each sale as defined below. Healthcare practitioners with anticipated volume over $2,000 in retail monthly sales qualify for a custom pricing service fee. By the 10th of each month or the first business day thereafter, we will issue payment for your store’s aggregated gross profit from the prior month minus our service fee. Products will be priced at the Manufacturer Suggested Retail Price (MSRP). Gross profit is defined as the MSRP minus the wholesale price (of a single item with no volume discounts) and will be reduced by patient coupon usage, subsidized shipping costs (if elected to do so) and applicable inbound shipping costs. Shipping and sales tax are not included. Your payment will be reduced for any fraudulent orders, returns, refunds and chargebacks.
Consignment products and reimbursement:
Consignment product is defined as customer owned product provided to Kaerwell for warehousing and fulfillment. Kaerwell agrees to store such product in a climate controlled environment. Products that require refrigeration will be stored under refrigeration and shipped with an ice pack. Kaerwell will provide customer with a periodic inventory report and full accounting of sales. Customer can also request an inventory report and Kaerwell will provide it to customer within 1 business day. Kaerwell will pay customer the stated manufacturer wholesale value of any products sold in a month by the 10th of the following month or the first business day thereafter. That payment will be in addition to any gross profit owed to customer after Kaerwell’s service fee as stated in the paragraph above.
If a chargeback or other payment reversal is initiated by a Patient, or a payment from a Patient is not successful, and the Product in relation to that payment is nonetheless shipped to the Patient, You agree that You are jointly and severally liable to Kaerwell with the Vendor and/or the Patient for the amount which Kaerwell has actually lost as a result of that transaction. You may attempt to pursue legal action independently of Kaerwell to recover any losses from Vendors and/or Patients.
Discounts from coupons created at your request will be deducted from your payment. Discounts that Kaerwell chooses to extend to your patients will not be deducted from your payment.
U.S. shipping is $6.95 per order or free over $100. International shipping is on a case by case basis, and the patient will be responsible for the full shipping cost of the order.
Patients may enroll one or more products to be sent on a recurring basis. Patients have the option of choosing custom autoship schedule. Patients will be able to cancel at any time.
We retain all rights and control of our website (“Site”). We will make commercially reasonable efforts to minimize downtime, but we will have no liability if it occurs.
Our Intellectual Property:
You are responsible for the payment of all applicable Federal, State, and local income taxes on earnings paid under this Agreement. We will issue a Form 1099 to you, if required in compliance with Federal and State tax laws.
We may amend this Agreement from time to time. When we amend this Agreement, we will notify you via e-mail that there has been a change. Your continued use of our services following such notice shall be deemed an acceptance by you of the changes to this Agreement, and such changes shall be binding to you.
Kaerwell reserves all rights afforded to us under this Agreement as well as under the provisions of any applicable Laws. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable Laws shall not be construed as a waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
Termination of Service:
Either party may terminate this Agreement at any time, for any reason, by giving the other party a 30 days written notice. You will be paid for sales through the termination date. We may withhold final payment for up to 30 days after the termination date to account for any fraudulent orders, charge-backs, returns, refunds or other adjustments. We reserve the right to offer product discounts to your patients up to 30 days prior to the termination date so that we can sell down inventory acquired exclusively for you. No less than 30 days after notification of termination, your store will be shut down and will no longer be accessible to your patients. Under no circumstances, including termination or cancellation of our Services to you, we will be liable for any losses related to actions of other users.
KAERWELL MAKES ALL COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT ALL MATERIAL, INFORMATION AND DATA ON THE KAERWELL SITE ARE ACCURATE AND RELIABLE. HOWEVER, ACCURACY CANNOT BE GUARANTEED. THE KAERWELL SERVICES AND PRODUCTS ARE PROVIDED BY KAERWELL ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KAERWELL DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE KAERWELL SERVICES AND PRODUCTS, INCLUDING WITHOUT LIMITATION ALL WARRANTIES REGARDING SUITABILITY, EFFICACY, AVAILABILITY, QUALITY, ACCURACY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. KAERWELL MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE KAERWELL SERVICES, PRODUCTS, OR USE OF MATERIAL, INFORMATION OR DATA DOWNLOADED OR OTHERWISE OBTAINED FROM THE KAERWELL SITE, OR REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE KAERWELL SITE. KAERWELL DOES NOT WARRANT OR GUARANTEE (1) THE ACCURACY, COMPLETENESS, CORRECTNESS, TIMELINESS, OR USEFULNESS OF THE KAERWELL SERVICES, PRODUCTS, OR ANY MATERIAL, INFORMATION OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE KAERWELL SITE OR (2) THAT USE OF THE KAERWELL SERVICES, PRODUCTS, OR ANY MATERIALS ON THE KAERWELL SITE WILL MEET ANY USER’S REQUIREMENT BY UNINTERRUPTED, TIMELY, SECURE OR ERROR- FREE. KAERWELL WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY OR FAILURE TO STORE ANY USER COMMUNICATION.
YOU ACKNOWLEDGE AND AGREE (1) THAT YOUR USE OF THE KAERWELL SERVICES AND PRODUCTS IS AT YOUR OWN DISCRETION AND RISK, (2) THAT USE OF ANY PRODUCTS, MATERIAL, INFORMATION OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE KAERWELL SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND (3) THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM FOR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL, INFORMATION OR DATA, AND FOR ANY OTHER FORM OF DAMAGE THAT MAY BE INCURRED. KAERWELL DOES NOT WARRANT OR GUARANTEE THAT FILES OR OTHER MATERIALS AND INFORMATION AVAILABLE THROUGH THE KAERWELL SITE WILL BE FREE OF INFECTIONS, VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT COULD BE HARMFUL TO YOUR COMPUTER SYSTEM. NONE OF THE PARTIES INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE KAERWELL SITE OR ITS CONTENT, INCLUDING WITHOUT LIMITATION KAERWELL, WILL BE RESPONSIBLE FOR THE CONDUCT OF USERS OF THE KAERWELL SITE OR FOR INFORMATION POSTED OR EXCHANGED ON THE KAERWELL SITE.
YOU SHOULD ALWAYS CONSULT YOUR HEALTH CARE PROVIDER REGARDING ANY MEDICAL OR HEALTH-RELATED DIAGNOSIS OR TREATMENT OPTIONS AND BEFORE TAKING ANY DIETARY, NUTRITIONAL, HERBAL, OR HOMEOPATHIC SUPPLEMENT. YOU SHOULD ALSO ALWAYS READ INFORMATION PROVIDED BY THE PRODUCT MANUFACTURER AND ANY PRODUCT LABEL OR PACKAGING, PRIOR TO USING ANY MEDICATION OR DIETARY, NUTRITIONAL, HERBAL, OR HOMEOPATHIC SUPPLEMENT PRODUCT.
THE PRODUCTS AND INFORMATION PROVIDED ABOUT SPECIFIC PRODUCTS ON OR THROUGH THE KAERWELL SITE HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KAERWELL OR IN ANY MANNER FROM THE KAERWELL SERVICES WILL CREATE ANY WARRANTY.
LIMITATION OF LIABILITY
IN NO EVENT WILL KAERWELL OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, INFORMATION, PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE KAERWELL SERVICES, KAERWELL’S OBLIGATIONS UNDER THESE TERMS, YOUR USE OF THE KAERWELL SERVICES, ANY LINKED WEBSITE, OR ANY MATERIAL, INFORMATION, DATA, PRODUCTS, OR SERVICES OBTAINED THROUGH THE KAERWELL SITE, OR OTHERWISE ARISING OUT OF YOUR USE OF THE KAERWELL SERVICES, YOUR INABILITY TO USE THE KAERWELL SITE OR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE OF ANY INFORMATION, ADVICE OR MATERIALS PROVIDED ON OR VIA THE KAERWELL SERVICES, WHETHER SUCH DAMAGES ARE BASED IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF KAERWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR ACCESS TO AND USE OF THE KAERWELL SERVICES. KAERWELL DISCLAIMS ALL LIABILITY FOR BODILY INJURY OR DEATH DUE TO THE USE OF THE PRODUCTS PURCHASED THROUGH OUR PLATFORM. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL KAERWELL’S LIABILITY TO YOU EXCEED $100, EVEN IF THIS REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
THE STATEMENTS MADE ON THE SITE AND ON THE PRODUCTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION. PRODUCTS ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT DISEASE.
The relationship of the parties will be that of independent contractors. Nothing in these Terms will be construed to constitute a partnership between or joint venture between the parties, nor will either party be deemed the agent of the other party or have the right to act on behalf of or bind the other party in any way without the prior written consent of such party.
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
These Terms are governed by the laws of the United States and the State of Florida law, without regard to any conflict of laws provisions. Venue will be proper exclusively in Orange County, Florida, with respect to any dispute arising under these Terms, unless otherwise specifically agreed by Kaerwell in its sole discretion.
Class Waiver; Waiver of Trial by Jury: Please read the following paragraphs carefully because they require you to arbitrate disputes with Kaerwell and limit the manner in which you can seek relief from us.Applicability. Any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity of these Terms (together, “Disputes”) will be resolved by binding arbitration on an individual basis as set forth in these Terms (this “Arbitration Agreement”). But, in the event of any actual, alleged, or threatened violation of confidentiality or violation of Kaerwell’s intellectual property or other proprietary rights, Kaerwell may immediately resort to court proceedings in a court of competent jurisdiction in order to seek immediate injunctive relief without posting bond, proving damages, or meeting any similar requirement. Any institution of any action for injunctive relief will not constitute a waiver of the right or obligation of either party to submit any claim seeking relief other than injunctive relief to arbitration. This Arbitration Agreement applies to you; Kaerwell; Kaerwell’s affiliates; Kaerwell s and its affiliates’ respective directors, officers, employees, owners, agents, predecessors in interest, successors in interest, and assigns; authorized and unauthorized users or beneficiaries of the Kaerwell Services; and any third-party beneficiaries.
Arbitration proceedings will be administered by the American Arbitration Association (“AAA”) before an arbitrator chosen by agreement of the parties. If the parties fail to reach agreement on the arbitrator within 30 days after service of the demand for arbitration, the arbitrator will be chosen by the AAA. The decision of the arbitrator will be final and binding. Any final award or judgment may be filed and enforced in any court of competent jurisdiction. The prevailing party will be entitled to recovery for its attorneys’ fees and costs. Any arbitration proceeding may not be consolidated or joined with any other proceeding and will not proceed as a class action. The parties understand that they would have had a right or opportunity to litigate disputes through a court, to have a judge or jury decide their case, and to participate in a class action or other proceeding involving multiple claimants, but they have instead chosen to have all Disputes decided through individual arbitration.
Place. The place of arbitration will be Orange County, Florida, unless otherwise agreed to in writing by all parties to the arbitration. This Arbitration Agreement evidences a transaction involving interstate commerce and the Federal Arbitration Act, 9 U.S.C. Sections 1-16, will govern the interpretation, enforcement, and proceedings pursuant to this Arbitration Agreement. Any and all actions taken under this Arbitration Agreement, including all filings, orders, judgments, and awards made in any arbitration proceeding, are confidential and may not be disclosed to any third party.
Time Limitation on Claims.
Arbitration proceedings must be initiated within one year after any Dispute arises; otherwise, the Dispute is permanently barred.
If any provision of these Terms is deemed unenforceable or invalid by a court or arbitrator, then the court or arbitrator will modify such provision to the minimum extent necessary to make such provision enforceable and valid. Should such modification prove impossible or impracticable then the provision will be severed, and the remaining terms of these Terms will be interpreted and read to give them maximum enforceability. Clerical errors are subject to correction. Any cause of action or claim with respect to the Kaerwell Services must be commenced within one (1) year after the action or claim arises.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it. If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Kaerwell shall have the sole right to elect which provision remains in force.
This Agreement represents the entire Agreement between you and us and supersedes any other verbal or written agreements. Our entire liability to you arising from this Agreement, whether in contract or tort, will not exceed any amounts outstanding and payable to you as set forth in this Agreement.
You acknowledge that these Terms are a valid and binding agreement. To the fullest extent permitted by law, you agree that these Terms and any other documentation, agreements, notices or communication between you and Kaerwell may be provided to you electronically. Please print a copy of all such documentation, agreements, notices or other communications for your reference.
Last Updated: November 16, 2020