BRAND PROTECTION POLICY FOR DISTRIBUTORS
EFFECTIVE AS OF June 1st, 2018
BNG Enterprises, Inc. (“BNG”) has unilaterally adopted this Brand Protection Policy for Distributors (this “Policy”) effective as of June 1st, 2018 (the “Policy Effective Date”), which is applicable to each Distributor.
For purposes of this Policy, a “Distributor” (“Distributors” in the plural) means a reseller located in the United States of America (“USA”) that directly or indirectly promotes and sells to others for resale one or more products offered by BNG regardless of brand (collectively, “BNG Products”).
1. Purpose. BNG is an established leader for natural remedies and herbal supplements, known for unique, effective formulas that use only the finest ingredients and processes, as well as superior customer service. In an effort to help safeguard the reputation of BNG, ensure the long-term viability of each of its brands and protect the investment of those Distributors that provide valuable services to customers, BNG has adopted this Policy which will determine the sale and distribution of all BNG Products to and through the BNG distribution channels including, but not limited to brick and mortar retailers, online retailer, e-commerce, and all 3rd Party Marketplaces.
2. Intellectual Properties (IP). Because BNG has significant investments in Intellectual Properties (IP) including, but not limited to patents, trade names, packaging, formulas, trademarks, imagery, logos etc., BNG reserves the right to review any and all distributor and retailer advertisements, product training, product knowledge and marketing material. If BNG, at its sole discretion, determines any distributor and/or reseller violates harms or compromises any of these IP’s, BNG reserves the unilateral right to suspend shipments of products.
3. MAP Policy (MAP). Distributor agrees to communicate BNG’s MAP Policy to all resellers plus post the MAP Policy on the distributor’s website. Distributor agrees to honor BNG’s Do Not Sell List (DNS). If a distributor sells BNG product(s) to any reseller on the DNS List, BNG reserves the unilateral right to suspend shipments of all BNG products to the distributor. In the event the Distributor is not compliant with the Map Policy, BNG will suspend shipments of all BNG products and will be put on BNG’s Do Not Sell (DNS) List.
4. Distributor Sales. Distributor is only authorized to resell BNG products to brick and mortar retailers. If a Distributor is found to be selling directly to consumers on any 3rd Party Marketplace, BNG will have cause to terminate all shipments to the Distributor indefinitely.
a. Sales to e-commerce 3rd party marketplace platform resellers including, but not limited to Amazon.com, eBay and Jet.com are prohibited unless approved by BNG. A brick and mortar retailer website is acceptable as long as the MAP Policy if followed.
b. If a brick and mortar retailer is found to be selling on any 3rd Party Marketplace, the retailer will be given an opportunity to remove the BNG product(s) from such marketplace. If the retailer fails to comply, they will be placed on the DNS list and the Distributor will be required to discontinue any further shipments plus cancel any open purchase orders of BNG products from the retailer.
5. Expired Product. The sale of expired product is prohibited.
6. Discontinued Product. The sale of discontinued product and/or packaging by a distributor or reseller without BNG’s prior approval is prohibited.
7. Reports. Distributor is required to supply BNG a customer list including customer name, address, city/state and BNG products purchased with volumes at a minimum of quarterly or upon BNG’s request.
8. Minimum Resale Price (MRP). Although each Distributor remains free to establish its own resale prices, BNG may elect to implement (MRP) if it is determined by BNG, at its sole discretion, that Distributors are advertising or selling BNG products as loss leaders, promoting or applying unfair discounts or otherwise engaging in conduct that BNG finds inconsistent with BNG or its products.
9. Distributor Website. If a Distributor’s website is password protected, a working and up-dated password will be provided to BNG. BNG will have the identical website access as a Distributor retail customer.
10. Sales Staff. A Distributor is required to maintain a trained sales staff for BNG products.
11. Distributor Orders. Distributor is required to order in case quantities.
12. Retail Stores. If a brick and mortar retailer is found to be selling on an 3rd Party Marketplace, including but not limited to, Amazon.com, Jet.com, Walmart.com, the retailer will be given an opportunity to remove the BNG product(s) from such Marketplace. If the retailer fails to comply, they will be placed on the DNS List and risks suspension and ultimately termination of all BNG Product shipments.
13. Valid UPC’s. The only valid UPC’s available to be sold through any 3rd Party Marketplace are listed here. If a seller is selling a UPC that is not listed, you are considered to be infringing on this policy by selling expired or discontinued items.
14. Consequences of Violating this Policy. One or more of the following will occur following verification by BNG, to its satisfaction, that a Distributor has violated this Policy.
BNG will provide notice of such violation to such Distributor and may request that such Distributor remove or stop, or cause to be removed or stopped within the time period specified in such notice, which typically will be one of the following: (a) no later than forty-eight (48) hours (usually for a violation involving Electronic Content) or (b) by conclusion of the period otherwise specified by BNG (regardless whether any action need be taken, a violation has been accrued). If Distributor does not correct the specific violation within the specified time, the authorization of such Distributor to purchase any or all of the BNG Products designated by BNG (the “Designated Products”) will be immediately revoked by BNG, so that all pending orders (even if accepted) from such Distributor will be cancelled and no new orders will be accepted from such Distributor for any or all of the Designated Products.
Effective as of the date specified in notice from BNG to such Distributor and continuing for the next one hundred and twenty days (120) days, the authorization of such Distributor to purchase any or all of the BNG Products will be immediately revoked by BNG, so that all pending orders (even if accepted) from such Distributor will be cancelled and no new orders will be accepted from such Distributor.
Effective as of the date specified in notice from BNG to such Distributor and continuing until BNG provides notice to such Distributor otherwise, if ever, the authorization of such Distributor to purchase any or all of the BNG Products designated by BNG (the “Designated Products”) will be immediately revoked by BNG, so that all pending orders (even if accepted) from such Distributor will be cancelled and no new orders will be accepted from such Distributor for any or all of the Designated Products.
15. Treatment of Violations. Each violation of this Policy is cumulative. Except as noted, the consequences of each violation can take effect regardless whether the consequences for the preceding violation(s) are still running. The same act(s) or failure(s) to act may result in multiple violations.
16. Certain Definitions. For purposes of this Policy (and regardless whether appearing in bold italics): (a) “Approved Secure Website” means a website that (i) is accessible only by a Distributor, the Authorized Retailers and BNG through the use of unique and secure passwords (a working, up-date password therefor will be provided to BNG) and (ii) is expressly approved by BNG for online advertising, promotion and selling and which approval has not been rescinded by BNG Notice; (b) each reseller permitted by this Policy to be sold by a Distributor will be considered an Authorized Retailer), but only to the extent that such reseller is not on the then-current Do Not Sell List; (c) the “Distributor Policies” means, taken together, each then-current version of the announcements and policies (whether in the form of correspondence, memoranda, notices or otherwise) expressly labeled as a policy or policies (or the substantive equivalent as determined by BNG) and from time to time issued by BNG Notice from the BNG Policy administrator (or the designee(s) or successor(s) thereof) and intended by BNG for a Distributor, including without limitation this Policy; (d) “Do Not Sell List” means BNG Notice which indicates that (i) one or more individuals or entities is or are not authorized by BNG to promote or resell any or all BNG Products (individually, an “Unauthorized Retailer”) in or through all promotional or sales media or just that or those designated by BNG (such as, but not necessarily limited to the internet) or (ii) the designation of an Authorized Retailer as such has been revoked with respect to all BNG Products (“Complete Revocation”) for all such media or revoked only with respect to the Select Products (“Partial Revocation”) for all such media or just that or those designated by BNG; (e) “negligently” means or refers to a should-have-known (as determined by BNG) standard; (f) the “Select Products” means those items of BNG Products specified on a Do Not Sell List consisting of fewer than all items of BNG Products; (g) the “Special Accounts” means, collectively, each individual or entity so designated by BNG Notice; and (h) “BNG Notice” means notice from BNG to a Distributor provided or made available electronically or otherwise.
17. Other Terms and Conditions. Effective as of the Policy Effective Date, this Policy supersedes and cancels each other policy applicable to each Distributor from BNG for any or all BNG Products, if any, regarding Minimum Advertised Price (MAP), resale price or, to the extent covered by this Policy, the other matters referred to herein. For any reason(s) deemed appropriate by BNG (including without limitation based the request of a Distributor for BNG to consider such things as, but not necessarily restricted to, limited-time promotional offers for a Distributor event or otherwise), but in no case other than as the unilateral decision of BNG, this Policy may be modified, extended, waived, suspended, discontinued or rescinded in whole or part by notice from BNG at any time (including without limitation during any BNG-designated promotional period(s)), with such action(s) effective immediately or as otherwise described by BNG. If BNG negotiates price(s) with a customer that is or are less than the MRP(s) and offers a Distributor the opportunity to fulfill one or more orders at such price(s), acceptance by such Distributor of such opportunity will not constitute a violation of this Policy.
In the event that BNG receives one or more orders (or similar or related documents) from a Distributor which contain one or more provisions which are inconsistent with or in addition to any or all provisions of the Distributor Policies: (a) each such order (or document) will be conclusively deemed to be governed by the Distributor Policies; (b) each such inconsistent or additional provision will be deemed stricken; and (c) no order submitted to BNG by such Distributor will be deemed to be governed by any provision(s) other than that or those contained in the Distributor Policies, unless and until a written agreement is duly executed by BNG and such Distributor which expressly adopts such provision(s). The availability of any or all items of BNG Products may be changed by BNG anytime, in which case, BNG may without liability or penalty do either or both of the following: (a) cancel all pending orders (even if accepted) from a Distributor for such changed item(s) and (b) refuse to accept any new orders from a Distributor for such item(s). If and as requested by BNG, a Distributor will sell or cause the sale to BNG of and, as directed by BNG and at the expense of BNG, ship or cause to be shipped to BNG or its designee(s) each of the items of BNG Products in the inventory of such Distributor (free of all liens, security interests, claims and encumbrances, other than that or those in favor of BNG) which is acceptable (as determined by BNG) at a price equal to the price paid to BNG therefor or, if unpaid, in lieu of the amount due to BNG therefor, less in either case a restocking charge equal to the amount, if any, described in the Distributor Policies.
Unless BNG designates otherwise, for purposes of compliance with the Distributor Policies, each business (regardless of the name(s) used and location(s)) directly or indirectly owned, operated or associated with a Distributor (as determined by BNG) will be considered to part of such Distributor, so that each violation by any such business will be aggregated with that or those of each other such business and attributed to such Distributor. If the approval of BNG under this Policy is sought by a Distributor, the failure to obtain it no later than seven (7) days after the date of such request will be deemed to be a disapproval of each thing for which such approval is sought. Regardless whether expressly indicated in this Policy, each notice referred to herein (including without limitation BNG Notice): (a) may, as determined by BNG, be given in writing or electronically and (b) will be considered to be received as designated by BNG. In the event of any disagreement over the interpretation or enforcement of this Policy, the view of BNG will control. If BNG determines that a Distributor does not qualify for or abused any or all of the exemptions, such exemption(s) with respect to such Distributor will be deemed withdrawn by BNG retroactive to the Policy Effective Date or such other date specified by BNG. Except in extraordinary circumstances, BNG will not consider any requests for other exemptions. The consequences of violating this Policy are non-exclusive and do not limit or waive in any way the legal, equitable and other remedies available to BNG, particularly for conduct relating to BNG intellectual property. If applicable law contains any requirement or prohibition that is inconsistent with this Policy, BNG may, effective as designated by BNG, add or substitute such requirement, accommodate such prohibition or rescind this Policy in whole or part.
BNG will not discuss any conditions of acceptance related to the MRP Policy. In addition, BNG neither solicits, nor will it accept, any assurance of compliance with the MRP Policy. Notwithstanding anything to the contrary which may be expressed or implied in or by one or more agreements between a Distributor and BNG, nothing therein shall constitute an agreement by such Distributor to comply with the MRP Policy, as, among other things, the MRP Policy is not and should not be construed to be one of the BNG Policies (as such term or the equivalent is or may be used in any or all of such agreements) where such compliance is mandatory.
18. Questions, Additional Information or Information Regarding Potential Violations. All questions or requests for additional information regarding this Policy and all information regarding potential violations of this Policy must be in writing and are to be addressed to the following person at BNG responsible for this Policy (“Policy Administrator”):
Policy Administrator, BNG Enterprises, Inc., 1430 W. Auto Drive, Suite 109, Tempe, AZ 85284
Only the Policy Administrator or the Policy Administrator’s designated representative(s) is or are authorized by BNG to answer questions regarding this Policy, to comment on this Policy or to accept information regarding potential violations. Except for the Policy Administrator and such representative(s), no BNG employee or independent sales representative has authority to comment upon or to take any action under this Policy.