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BNP Health Plans™*, Continuous Glucose Monitor (CGM) and Review; Lab Reviews HIPAA & Purchase Terms Agreement

*Previously called BNP Health™ Memberships or BNP Programs™

Welcome, we are thrilled to have you choose our team to take the next step forward on your journey to better health. By purchasing, you (“Participant”) agree that these materials are copyrighted by Ashley Koff Better Nutrition Program LLC d/b/a The Better Nutrition Program, an Ohio Limited Liability Company (“BNP” or “Company”) and subject to the following terms.

All BNP sales are final and non-refundable. With your purchase, you are agreeing to pay the initial or total fee for your BNP Health Plan™ or Continuous Glucose Monitor (CGM) and Lab Review package in full and recognize that all sales are final. There are no partial or full refunds for cancellations or any other reason. Additionally, you understand that your Plan, CGM or Lab Review purchase is non-transferable and intended solely for your personal use. Any materials or resources provided are for individual use only and may not be shared or distributed. If you are a practitioner seeking to utilize these tools professionally, The BNP Toolkit™ is available for purchase separately. Payment is due in full upon purchase.

The purchase date is the official starting date of your Plan, Continuous Glucose Monitor (CGM) and Lab Review Program.

For all BNP Health Plans™, the auto-renewal date is the date of purchase each month. For clarification, this means the following:

If you purchased on a date in the month, for example 4th, 12th, 20th, you will be charged at the same time on that date the following month. So if you buy on June 4th you will be charged on July 4th etc.
If your purchase date is the last day of a month such as the 28th (February non-leap year), 30th or 31st, you will be charged on the last day of the next month. For example, a January 31st purchase date will auto-renew on February 28th or 29th (if a leap year).

Cancellation of your membership: To avoid being charged for the next month's fee, you must cancel your membership through your online portal. Cancellations will not be processed via email, and refunds will not be issued for those who claim they intended to cancel or who request cancellation via email. If you have any questions about the cancellation process, please contact us within 72 business hours of your renewal date to ensure the issue is resolved before the renewal is processed. The contact email is hello@thebetternutritionprogram.com

NOTES:

Continuous Glucose Monitor (CGM) and Lab Reviews expire: You have 90 days from the purchase of the Continuous Glucose Monitor (CGM) and Lab Reviews to initiate and complete the program unless otherwise agreed upon in writing with an approved BNP team member.
BNP Health Plan™ pause request: BNP reserves all rights to approve a pause for your membership. If a pause is agreed upon in writing with an approved BNP team member you will be notified of the restart and subsequent auto-renewal dates; otherwise, your membership will auto-renew on the day purchased. You can lock in your pricing for up to a 3 month pause.

BNP Health Plans™

A participant is making a one-time purchase. Purchase includes (i) Access to your BNP Clinical and Care Team during the program; (ii) Access to the Coach or Clinician (for the number of sessions specific to your purchase and unlimited messaging for the duration of the Program) and new content for the duration of the Program; and (iii) Access to the BNP Coaching™ live group sessions or to ask questions of the BNP Clinical Team™ via your Coach for the duration of the Program.

Continuous Glucose Monitor (CGM) and Review, Lab Reviews

A participant is making a one-time purchase. Purchase includes (i) Access to the BNP Continuous Glucose Monitor (CGM) and Review and the Theia app for tracking and communication with the BNP team. (ii) A minimum of 2 reviews of data by a BNP Clinical Team™ member (iii) a live 30-minute virtual 1:1 session with a BNP Clinical Team™ member (iv) Access to BNP Care Team™ members for customer support for the 30 days of your program (v) if your purchase included a CGM sensor it will be delivered to your address of choice. Replacements for faulty sensors are at the discretion of Theia, the dispensing company, with a maximum of two sensors per customer.

BNP reserves the right to discontinue services if the Participant no-shows or does not provide 24-hour cancellation notice for live sessions or if the Participant communicates abusive or otherwise inappropriate messages or statements (BNP reserves the sole right to determine this) via the app or in live sessions.

Once a Participant in Continuous Glucose Monitor (CGM) and Review you may choose to purchase sensors directly through the Theia app with or without adding the BNP services. You may also request that BNP remove your data from the app at any time, noting that request during your program will impact the ability to provide feedback.

Practitioner Information and Sharing PHI: If you use a Practitioner Code when purchasing or provide your Practitioner’s information below, you agree that the BNP Clinical Team™ or a BNP administrator may ask your Practitioner questions on your behalf during the term of the Program. You also authorize the release of your PHI by BNP, as necessary, including at the conclusion of your Membership or Program, so BNP can share a final report on your performance and recommendations for next steps with your Practitioner.

If you have questions about your goals, better nutrition, and/or lifestyle choices during your Membership or Program you will relay your questions to the BNP Care Team™ member or any BNP Team™ member with whom you can access who will contact a BNP Clinical Team™ member who will then reach out to your Practitioner. You agree that they may share your Personal Health Information (“PHI”) for the purposes of the Program.

In the event you no longer want information shared with your Practitioner, you agree to notify your Coach and email care@thebetternutritionprogram.com.

Fees and Costs:

BNP is entitled to costs and fees associated with financial transactions such as returned checks and chargebacks and to reasonable attorney fees and expenses if collection activities are necessary. Participant agrees that if payment is made by debit card, credit card, or other electronic means, such payments cannot be revoked or reversed in any manner by Participant. In the event that Participant breaches any of the promises made in, or any of the terms of, this Agreement, and Company investigates, defends, or pursues any charge, suit, complaint, claim, or grievance as a result, Participant shall be liable to Company for all damages, attorneys’ fees, expenses, and costs (including discovery costs) incurred by it in investigating, enforcing, defending, or pursuing the same. Further, Participant agrees that they will indemnify and hold harmless the Company from and against all liability, costs, and expenses, including attorneys’ fees, arising out of said breach, charge, suit, complaint, claim, or grievance.

Taxes: Prices and all other charges are exclusive of sales tax, which shall, if applicable, be chargeable to the Participant.

THE SECTION BELOW TITLED “CLASS ACTION WAIVER” CONTAINS A CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS. PLEASE READ IT.

Pursuant to this Agreement, Participant may have access to various proprietary assets of BNP, including certain BNP owned content assets and BNP Intellectual Property (as defined below) (collectively, “BNP Assets”). The BNP Assets are subject to revision or supplementation by BNP at any time, without notice. You agree to not use, edit or disclose the content of the BNP Assets, resell, publish or otherwise use any BNP Assets for any benefit other than for your own personal use during the term of this Agreement.

DEFINITIONS

“Confidential Information” shall have the meaning set forth in Paragraph 4 herein.

“Effective Date” shall mean the date purchased.

“BNP Intellectual Property” shall mean BNP owned content assets, including, for example, The Better Nutrition Program, BNP program content, and all foreign, federal, state and common law trademarks, service marks, domain names, Internet path names and addresses of whatsoever nature, trade dress, copyrights, know-how, show-how, patents, Inventions (whether or not patentable), mask works, software, proprietary data, customer lists, strategic plans, financial data, trade secrets, all other intangible assets of whatsoever nature and all applications for registration and/or issuance with respect to all the foregoing and whether or not any of the foregoing is registerable or patentable, including, without limitation, with respect to all of the foregoing: (a) all goodwill associated with any and all of the foregoing; (b) all patents, continuations, continuations in part, divisionals, reissues and extensions; and (c) all moral rights associated with any and all of the foregoing.

BNP ASSETS

Section 1.1 Ownership. Participant acknowledges that Company is the sole and exclusive owner of the BNP Assets. Participant agrees that it has no right, title or interest in or to any BNP Assets. Participant agrees not to share their login information with any other person or entity. The right to access the Program is exclusive to Participant.

LIMITATION OF LIABILITY AND ACTION; INDEMNITY

Section 2.1 Company Disclaimer of Warranties. Company, and its owners, employees or agents, does not diagnose, prescribe, or make medical recommendations. Company provides education and coaching only. In the event Participant chooses to take any action from the education and coaching received as part of the Program, Participant does so of their own accord and any changes should be discussed with a Practitioner.

Section 2.2 Limitations on Liability. In no event shall Participant be entitled to recover from Company any monetary award that exceeds the amount of monetary consideration paid to Company pursuant to this Agreement.

Section 2.3 Limitations on Action. ANY CAUSE OF ACTION OF CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

III. TERM AND TERMINATION

Section 3.1 Term. Except as otherwise provided herein, this Agreement shall have a term of one (1) year from the effective date.

Section 3.2 Termination. This Agreement may be terminated by Company without prior notice or legal action upon breach of this Agreement by Participant, including, without limitation, nonpayment or untimely payment of any fees due to Company.

MISCELLANEOUS PROVISIONS

Section 4.1 Confidential Information.

4.1.1. The Parties agree that any information disclosed by Company pursuant to this Agreement, including without limitation the BNP Assets, videos, and all information related to the Program (collectively herein “Confidential Information”) shall be maintained in confidence and not disclosed to any third party for any reason whatsoever, excluding such counsel, agents, or consultants necessary for performance of this Agreement, without the written authorization of the disclosing Party.

4.1.2. Notwithstanding the foregoing, in the event a Party becomes legally compelled to disclose any Confidential Information, such Party shall provide the other with prompt prior written notice of such requirement so that the other Party may seek a protective order or other appropriate remedy to minimize disclosure of the Confidential Information. In the event that such protective order or other remedy is not obtained, or the other Party approves the disclosure, the disclosing Party agrees to furnish only that portion of the Confidential Information that the disclosing Party in good faith believes is legally required and shall reasonably request that confidential treatment be accorded of such information.

4.1.3. Each Party shall cease use of all Confidential Information that any Party has obtained from the other upon the expiration or earlier termination of this Agreement.

4.1.4. Notwithstanding the foregoing, nothing in this Section 4.1 shall require the recipient Party of any information to hold such information in confidence or otherwise protect it from unauthorized use or disclosure in the event it (i) is known to the recipient at the time of receipt; (ii) is or becomes publicly available through no wrongful act of the recipient; (iii) is rightfully received by the recipient from a third party without restriction and without breach of any agreement; (iv) is independently developed by the recipient without breach of this Agreement or (v) is furnished by the disclosing Party to a third party without restriction.

Section 4.2 Assignment; Sub-Licensing. None of the rights, benefits, or obligations of this Agreement shall be assigned or transferred by Participant. Any purported assignment or sublicense by Participant shall be null and void.

Section 4.3 Notices. All notices, requests and communications to any Party hereunder shall be in writing and shall be provided either (i) by personal delivery, (ii) by reliable overnight courier service, with written delivery confirmation, (iii) by facsimile transmission, (iv) by electronic mail, with written receipt confirmation from the recipient Party, or (v) by certified, registered or express U.S. Postal Mail or reliable overnight courier service, with written delivery confirmation.

Section 4.4 Entirety of Agreement. This Agreement constitutes the entire agreement and understanding between the parties related to the Program, and supersedes any prior or contemporaneous agreement or understanding related to the subject matter addressed herein. There are no oral understandings, terms or conditions, and neither Party has relied upon any representations, express or implied, other than those set forth in this Agreement. All modifications to this Agreement must be made in a writing executed by both Parties.

Section 4.5 No Third Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the parties hereto and nothing herein is intended to give or shall be construed to give to any person or entity other than the parties hereto any additional rights or remedies hereunder.

Section 4.6 Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be legally unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.

Section 4.7 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Ohio without regard to its conflicts of law provisions. The Parties agree that the jurisdiction and venue of any action with respect to this Agreement shall be in a court of competent subject matter jurisdiction located in the United States District Court of the Southern District of Ohio, or the Court of Common Pleas, Franklin County, Ohio. The Parties hereby consent to personal jurisdiction and proper venue in the courts in the United States District Court of the Southern District of Ohio, or the Court of Common Pleas, Franklin County, Ohio.

Section 4.8 Survival. Any term or condition of this Agreement, which by its nature is intended to survive termination of this Agreement, shall survive such termination.

Section 4.9 Disclaimer of Warranties. THE CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND TO THE EXTENT PERMITTED BY LAW. COMPANY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: COMPANY AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE CONTENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE CONTENT SHALL BE LIMITED TO THE FEES YOU HAVE PAID COMPANY IN CONNECTION WITH ANY PURCHASES YOU HAVE MADE FROM COMPANY DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.

Section 4.10 Equitable Relief. Participant acknowledges that if he/she breaches this Agreement that the determination of damages suffered by Company as a result of the breach would be speculative. Participant agrees that in the event he/she breaches any of the covenants and premises contained in this Agreement, that Company shall be entitled to an Order of the Court prohibiting Participant from continuing to breach any of the covenants and premises set forth herein. This covenant, on the part of Participant, shall be construed as an agreement independent of any other provision of this Agreement; and the existence of any claim or cause of action of Participant against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to Company's enforcement of this Agreement or right to injunctive relief. If Company seeks injunctive relief, the prevailing party shall be entitled to recovery, as party of their damages, attorney fees and expenses for the enforcement of this Agreement.

Section 4.11 Class Action Waiver. You agree that any claim, action, proceeding or arbitration shall be limited to the Dispute between Company and you individually. To the full extent permitted by law, (i) no claim, action, proceeding or arbitration shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST COMPANY ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

Section 4.12 Unenforceability of Provisions. If a Court determines that any provision(s) of this Agreement is, in whole or in part, not valid or enforceable, such decision shall not affect the validity or enforceability of the remaining provisions of this Agreement. IF AND TO THE EXTENT ANY WAIVER, EXCLUSION, LIMITATION, INDEMNITY, OR OTHER PROVISION IN ANY EXHIBIT, ADDENDUM, THIS AGREEMENT OR ANY OTHER CONTRACT DOCUMENTS FAILS TO COMPLY WITH THE LAW OF THE STATE UNDER WHICH IT IS CONSTRUED DUE TO THE ABSENCE OF CAPITALIZATION OR OTHER GRAPHIC EMPHASIS, EACH PARTY WAIVES OBJECTION TO THE PROVISION ON THAT BASIS TO THE EXTENT PERMITTED BY LAW AND OTHERWISE AGREES TO BE ESTOPPED FROM RAISING SUCH OBJECTION IN ANY JUDICIAL PROCEEDING.

Section 4.13 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by an authorized agent of Company. Failure to exercise a right or remedy granted hereunder shall not be deemed a waiver of such right or remedy.

I acknowledge that I have thoroughly read the terms and conditions above including those on renewal, cancellations, refunds, and late fees. I understand all sales are final and non-refundable.

This agreement is accepted upon purchase.

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June 3, 2022 2:45 pm EDT

BNP Health Plans™*, Continuous Glucose Monitor (CGM) and Review; Lab Reviews HIPAA & Purchase Terms Agreement Uploaded by Ashley Koff - hello@thebetternutritionprogram.com IP 64.246.107.97