Dermelect® Legal Notices
MASTER RESELLER STANDARD TERMS AND CONDITIONS OF SALE IN UNITED STATES Purchaser agrees to be bound by the following Terms and Conditions (this "Agreement") in connection with the purchase of any Dermelect® products from Dermelect Cosmeceuticals, Inc., a New York corporation ("Seller"):
1. ACCEPTANCE. Purchaser has read and understands these Terms and Conditions. Any terms and conditions, and/or provisions of Purchaser's purchase order or other written form that are in any way inconsistent with or in addition to these Terms and Conditions shall not bind Seller, and in no event shall any such inconsistent or additional term and/or condition of Purchaser's order, whether by acknowledgment or otherwise, become a part of these Terms and Conditions. These Master Reseller Standard Terms and Conditions of Sale are incorporated by reference and shall apply to each order and sale of the product to Purchaser as if set forth in each order from Purchaser and each sale of product to Purchaser. If Purchaser objects to one or more of the terms herein, such objection must be in writing and received by and accepted by Seller in writing prior to the commencement of performance by Seller. Acceptance and/or relocation of any Dermelect® products or an installment thereof delivered by Seller shall be conclusively deemed acceptance of the Terms and Conditions by Purchaser. Seller is under no obligation to provide Purchaser with product and may accept or reject any order, in Seller's sole discretion. Any purchase order or other written form of Purchaser shall be construed as an offer and shall not become an effective binding part of these Terms and Conditions, unless signed by an authorized officer of Seller, together with a written agreement that it is incorporated into these Terms and Conditions.
2. VALIDITY OF QUOTATION. Prices quoted by Seller are valid for thirty (30) days from the date of proposal and must be accepted in writing within that time period. Seller reserves the right to correct clerical or typographical errors at any time, even after acceptance.
3. TAXES EXCLUDED. Seller's price does not include taxes or assessments imposed by any government or subdivision thereof, including, without limitation, any local, state or federal sales, revenue, excise, use or other tax or fee applicable to the purchase, sale, resale or use of the Dermelect® products. Purchaser agrees to pay any and all such taxes and assessments, and to reimburse Seller for any and all such taxes or assessments that Seller is required to pay. Any Purchaser who is purchasing for resale represents and warrants to Seller that he/she/it has purchased the Dermelect® products for resale to customers under valid seller's permits (or equivalent documents required by any federal, state or local government agency in any location in which Purchaser conducts business) and must provide Seller with written documentation of any valid seller's permit or equivalent documents within ten (10) days of Purchaser's acceptance of this Agreement. If Purchaser does not resell any Dermelect® products, but uses, donates or otherwise transfers the Dermelect® products, Purchaser must pay any taxes and assessments arising from such use, donation or transfer.
4. PAYMENTS; SECURITY. All payments shall be made in U.S. Dollars. Unless otherwise specified in writing, Seller's standard payment terms are all cash, payment in full upon acceptance of a Sales Order and prior to shipment by Seller. If the Dermelect® products are not paid for in full, Seller retains a purchase money security interest in the Dermelect® products and shall have all rights of a secured party thereon pursuant to the provisions of the Applicable Uniform Commercial Code (the "Code"). Purchaser, as debtor, hereby grants to Seller a purchase money security interest in all Dermelect® products already purchased or hereinafter purchased by Purchaser to secure payment of any amounts due to Seller under this Agreement. Purchaser shall, upon request of Seller, execute any Security Agreement, Financing Statement or other document required by the Code, and Seller shall have the right to require receipt of such executed Security Agreement, Financing Statement or other document prior to shipment of Dermelect® products. In furtherance of the foregoing, an irrevocable power, coupled with an interest, is hereby granted and reserved unto Seller to execute such Security Agreement, Financing Statement or other document on Purchaser's behalf and stead. If, in the opinion of Seller, at any time after issuance of the Sales Order, reasonable grounds for insecurity arise with respect to Purchaser's ability to make required payments, Seller may demand adequate assurance of payment in writing. If adequate assurance is not given within ten (10) days of demand, Seller may require full or partial payment in cash or satisfactory security at such time and prior to delivery by Seller.
5. TERMS OF DELIVERY; PASSAGE OF TITLE; RISK OF LOSS. F.O.B. GREAT NECK, NEW YORK. "F.O.B." means that Seller shall arrange delivery with a common carrier ("Shipper") but Purchaser shall be solely responsible for all costs and expenses of delivery. Shipping dates and/or delivery dates are quoted based on conditions prevailing on the date of the quotations. The time of delivery shall be deemed to have been complied with if the Dermelect® products have been delivered to the custody of the Shipper before expiration of the time of delivery. Seller need not ship or deliver as quoted if Purchaser has not met its payment (including late fees and interest) or other contractual obligations. "F.O.B." means that title and right of possession passes upon delivery to Shipper or payment in full to Seller, whichever occurs last. Purchaser agrees to perform all acts necessary to protect and maintain Seller's title and right. Passage or non-passage of title shall not affect risk of loss. "F.O.B." means that Purchaser bears the risk of loss or damage to the Dermelect® products from the time that Seller delivers the Dermelect® products to Shipper, and during all transportation and subsequent delivery to Purchaser. If Purchaser delays delivery and Seller stores the Dermelect® products, Purchaser must pay for all storage costs.
6. REPORTING DAMAGE, LOSS OR SHORTAGE. A claim relating to the shipment or packaging of the Dermelect® products must be made within five (5) days of receipt of the Dermelect® products by Purchaser at Shipper's destination point or the claim relating to shipment or packaging is waived and released by Purchaser.
7. SET-OFF. Purchaser shall not, at any time, be entitled to set off any amount owed by Seller to Purchaser against any amount payable by Purchaser to Seller.
8. ADVERTISING. Seller may advertise or publish the fact that Seller has contracted to furnish Dermelect® products to Purchaser. Purchaser acknowledges and agrees that Seller is the exclusive owner of the trademark Dermelect®. Subject to the terms and conditions hereof, Seller hereby grants to Purchaser and Purchaser accepts from Seller, a limited, non-exclusive, non-transferable license to use the name Dermelect® for the term of this Agreement as applied to Dermelect® products and in any sign or advertising during the term of this Agreement, and may prepare a business card identifying Purchaser as "a Reseller of Dermelect®," but shall not use the name or wordmark Dermelect® for any other purpose or usage.
9. FORCE MAJEURE. Purchaser agrees that Seller is excused from performance and shall not be liable for delays due to causes beyond its reasonable control or due to acts of Purchaser, acts of God, changes in local, state or federal laws or regulations, fires, strikes, floods, epidemics, quarantine restrictions, riot or other civil unrest, war, acts of violence, freight embargoes, delays in transportation, etc., or its inability to obtain labor, materials or manufacturing facilities despite reasonable commercial efforts.
10. LIMITED WARRANTY OF QUALITY. Seller warrants that the Dermelect® products that it sells to Purchaser shall be free from defects in workmanship or materials on the date of sale. No other express warranty is given and no authorization of Seller, by words or action, will constitute a warranty. In the event that any Dermelect® products prove to be defective in workmanship or materials on the date of sale by Seller, Seller shall replace the Dermelect® products without cost to Purchaser or refund the purchase price, at Seller's sole discretion, so long as Purchaser brings the defect to Seller's attention within sixty (60) days of the date of sale. THE FOREGOING LIMITED WARRANTY IN THIS PARAGRAPH 10 IS IN LIEU OF ALL OTHER WARRANTIES. ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE DISCLAIMED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE. There are no warranties that extend beyond the description on the face hereof. The refund of the purchase price (less shipping and handling) or replacement of the Dermelect® products is the only remedy available to any person or entity for breach of limited warranty by Seller. In addition to the Disclaimer of Warranty in this paragraph 10, Purchaser acknowledges and agrees that Seller does not warrant against: (a) injury to persons or damage to property resulting from the failure of the Dermelect® products to provide a desired or presumed result, or from any other cause; (b) damage caused by use of the Dermelect® products for purposes other than eyelash conditioning; (c) damage caused by abuse, accident, modification or use of the Dermelect® products with other products; (d) damage of the Dermelect® products during shipment; or (e) any other abuse or misuse of the Dermelect® products by Purchaser or others.
11. LIMITATION OF ALL REMEDIES. IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY TO THE FULLEST EXTENT PERMITTED BY LAW. DAMAGES THAT SELLER WILL NOT BE RESPONSIBLE FOR INCLUDE, BUT ARE NOT LIMITED TO: LOSS OF PROFITS; LOSS OF SAVINGS OR REVENUE; LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT; COST OF CAPITAL; COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES; DOWNTIME; CLAIMS OF THIRD PARTIES; INJURY TO PERSONS OR PROPERTY; INTERRUPTION OF BUSINESS; DAMAGES DUE TO DELAYS; COSTS RESULTING FROM THE INCORPORATION OF THE DEFECTIVE DERMELECT® PRODUCTS INTO OTHER PRODUCTS; DEFECT INVESTIGATIONS; BUSINESS GOODWILL; EXTRA WORK; AND PUNITIVE DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PURCHASER EXPRESSLY AGREES THAT SELLER'S SOLE MAXIMUM LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO THE PURCHASE PRICE OF THE DERMELECT® PRODUCTS, AND WHEN PURCHASER ACCEPTS DERMELECT® PRODUCTS UNDER THESE TERMS AND CONDITIONS, PURCHASER IS PRECLUDED FROM SEEKING ANY OTHER DAMAGES AGAINST SELLER.
12. ALLOCATION OF RISKS. These Terms and Conditions allocate the risks of Dermelect® product failure or deficiency between Seller and Purchaser. This allocation is recognized by both parties and is reflected in the price of the Dermelect® products. Purchaser acknowledges that he/she/it has read these Terms and Conditions, including paragraphs 10 and 11, understands them and is bound by them.
13. INDEMNIFICATION. Purchaser agrees to indemnify, defend and hold harmless Seller, and its officers, directors, shareholders, employees, agents and representatives (collectively, "Indemnitees"), from any and all actions, claims, demands, losses, costs, expenses, obligations, liabilities, damages (including incidental, special, punitive and consequential damages), recoveries, settlements and deficiencies, including interest, penalties, accounting fees and expert witness fees incurred by Indemnitees, known or unknown, contingent or otherwise, as a result of a third party claim against Indemnitees, or any of them, directly or indirectly related to or arising from any of the following: (a) personal injury of any person relating to or arising out of any alteration, change or mishandling of any Dermelect® product by Purchaser; or (b) any violation of Section 19 by Purchaser. This indemnification shall be enforceable only to the extent permitted by Nevada law.
14. INSURANCE. For all times that this Agreement shall remain in effect, Purchaser shall maintain comprehensive Commercial General Liability Insurance for Purchaser, its agents, and employees, with a liability limit of not less than One Million Dollars ($1,000,000) per occurrence and no less than Two Million Dollars ($2,000,000) annual aggregate limit, which policy shall include "product liability" insurance coverage. Purchaser shall obtain all insurance policies from carriers with A.M. Best Financial Strength Ratings of A-IX or better. Seller shall be named as an additional named insured on such commercial general liability policy. The requirement of commercial general liability insurance (including product liability coverage) under this Section 14 shall apply for all orders of product, irrespective of the number of units purchased. Purchaser shall be solely responsible for damage, fire, theft or other casualty loss, and negligence of Purchaser's agents, servants or employees (a) during collection and/or shipment, (b) with respect to Dermelect® products held by Seller in storage prior to shipment if shipment is delayed by Purchaser, and (c) to cover any Dermelect® products in the care, custody and control of Purchaser, until title has passed to Purchaser. For any order of five hundred (500) or more units of product, Purchaser agrees to also obtain at its sole cost "all risk" liability insurance to cover the full value of each shipment of the Dermelect® products. For any product purchased on credit, Seller shall be named as a loss payee and an additional named insured on any "all risk", transit or personal property insurance of Purchaser. Purchaser shall provide Seller with Certificates of Insurance for the insurance required under this Section 14.
15. TERMINATION. Purchaser may terminate this Agreement upon thirty (30) days advance written notice to Seller. Seller, at its sole discretion, may immediately terminate these Terms and Conditions without liability to Purchaser for any reason, including, without limitation, in any of the following or any other comparable events: (a) insolvency of Purchaser; (b) filing of a voluntary petition in bankruptcy by Purchaser; (c) filing of any involuntary petition in bankruptcy against Purchaser; (d) appointment of a receiver or trustee for Purchaser; or (e) execution of an assignment for the benefit of creditors by Purchaser, provided that such petition, appointment or assignment is not vacated or nullified within thirty (30) days of such event (each an "Insolvency"). Purchaser shall reimburse Seller for all expenses, costs, losses and liabilities incurred by Seller in connection with termination of this Agreement in the event of Insolvency. At no time after termination of this Agreement shall Purchaser use Seller's confidential and proprietary information or trade secrets to (a) obtain business from the customers or clients of Seller, (b) induce or intend to induce any employees of Seller to leave its employment, (c) assist others to obtain business from Seller's customers or recruit Seller's employees, or (d) engage in any other activity that is harmful to the interests of Seller.
16. NO INTERNET SALES AND NO INTERNATIONAL SALES. Purchaser agrees, represents and warrants that he/she/it will not sell the Dermelect® products purchased pursuant to this Agreement on the Internet. RESELLER IS NOT AUTHORIZED TO SELL DERMELECT® ON THE INTERNET OR ON ANY ONLINE AUCTION HOUSE SUCH AS EBAY, OR IN A CATALOGUE. Reseller will not sell to jobbers or other resellers, including but not limited to, Reseller will not sell to department stores, family stores, clubs or discount stores. PURCHASER IS NOT AUTHORIZED TO MAKE ANY SALES OF THE DERMELECT® PRODUCTS ON THE INTERNET UNLESS PURCHASER HAS SIGNED A SEPARATE INTERNET SALES AGREEMENT. Purchaser further agrees, represents and warrants that he/she/it will not export or otherwise sell the Dermelect® products outside of the United States, or to persons or entities who it knows or reasonably believes intend to resell the Dermelect® products outside of the United States or on the Internet. IF PURCHASER WISHES TO EXPORT OR OTHERWISE SELL THE DERMELECT® PRODUCTS OUTSIDE OF THE UNITED STATES, PURCHASER MUST BE AUTHORIZED TO EXPORT OR SELL OUTSIDE OF THE UNITED STATES PURSUANT TO A SEPARATE SELLER'S INTERNATIONAL TERMS AND CONDITIONS OF SALE.
A breach of this Section 16 is a material breach of this Agreement. Purchaser acknowledges and agrees that, in addition to all other rights that Seller has, in the event of a breach of this Section 16, Seller may immediately terminate this Agreement.
Purchaser agrees that it will not sell the Dermelect® products: (a) to any other resellers, or (b) to any individual or entity that Purchaser knows or should reasonably have known intends to resell, ship or export the Dermelect® products to a location outside the United States, or (b) to any individual or entity that Purchaser knows or should reasonably have known intends to resell the Dermelect® products on the Internet. Seller hereby advises Purchaser that Seller intends to repurchase any Dermelect® products sold, transferred, shipped, diverted or exported to any person or entity in violation of this Section 16. Purchaser therefore agrees that if Purchaser sells, transfers, ships, diverts or exports the Dermelect® products to an individual or entity in violation of this Section 16, Purchaser will reimburse Seller for any and all costs and expenses incurred by Seller to repurchase the Dermelect® products so sold, transferred, shipped, diverted or exported.
17. INTEREST. If Purchaser does not make payments when due, he/she/it shall without formal notice be liable to pay interest on overdue amounts from the due date, at a rate of one and one-half percent (1.5%) per month, or the maximum amount allowed by the law, whichever is less.
18. RETURN OR CANCELLATION. Accepted Sales Orders for Dermelect® products cannot be cancelled by Purchaser. Dermelect® products cannot be returned by Purchaser to Seller, unless the Dermelect® products are defective or damaged.
19. NO REPRESENTATIONS OR MODIFICATIONS. Purchaser may not make any representations or warranties to any resale customer or other third party regarding Dermelect® products, except for those specified in writing by Seller. Purchaser agrees to deliver to its customers all product warranties, specifications, instructions and warnings that Seller specifies, including those supplied with the Dermelect® product. NO PERSON, AGENT, OR REPRESENTATIVE OF PURCHASER IS AUTHORIZED TO MAKE ANY WARRANTY ON THE DERMELECT® PRODUCT OR ASSUME FOR SELLER ANY LIABILITY OTHER THAN AS SET FORTH IN SUCH DOCUMENTS SPECIFIED BY SELLER. Purchaser shall sell the Dermelect® products only in packages, and under labels and packaging design, that have been provided by or approved in advance by Seller. At no time will Purchaser make any alteration or modification to any container, packaging, label, or insert of the Dermelect® products purchased under this Agreement. The Dermelect® product is marketed as a cosmetic under the federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., and comparable state laws. It is intended only to promote the attractiveness, enhance the beauty, and improve the appearance of the person that is using it. All claims for the Dermelect® product shall be limited to these intended uses. Seller makes no warranties or claims, either explicit or implied in its labeling, advertising promotion, offering for sale, sale, or distribution, that Dermelect® products will produce any physical results, whether structural or functional. Seller further disclaims any comments or reports by Dermelect® products resellers and end users regarding any specific results pertaining to Dermelect® products. Purchaser further represents and warrants that Purchaser will not state or imply that the Dermelect® products are useful for any purposes, save and except for conditioning and will not make any warranty or claim, either explicit or implied in its labeling, advertising promotion, offering for sale, sale, or distribution, that Dermelect® products will produce any physical results, whether structural or functional.
20. ARBITRATION. Any controversy or claim arising out of or relating to these Terms and Conditions, or relating to or concerning the Dermelect® products, shall be submitted to final and binding arbitration by an arbitrator appointed by the American Arbitration Association ("AAA") in accordance with the AAA's Commercial Arbitration Rules. The decision rendered by the arbitrator shall be final and binding upon the parties without the right to appeal to the courts. The award rendered by the arbitrator shall be final, and judgment thereon may be entered in any court having jurisdiction thereof. The award of the arbitrator may include compensatory damages against either party, but under no circumstances will the arbitrator be authorized to, nor shall he, award punitive damages or multiple damages against either party. Either party may pursue injunctive or other equitable relief without first submitting the claim or controversy to arbitration. The cost of the arbitration shall be paid equally by the parties to the arbitration.
21. ENTIRE TERMS AND CONDITIONS. These Terms and Conditions and the Sales Order or other quotations and order confirmations of Seller under which they have been deemed applicable supersede all prior and contemporaneous communications, understandings and Terms and Conditions of Purchaser and Seller (verbal and written).
22. MODIFICATION. These Terms and Conditions may not be modified or amended in any way unless such modification or amendment is in writing and signed by an authorized officer of each Seller and Purchaser.
23. SEVERABILITY. If any provision of these Terms and Conditions is determined by a court of competent jurisdiction to be invalid under any applicable law, the portion deemed to be invalid will be deemed omitted, and the remainder of these Terms and Conditions shall remain enforceable.
24. GOVERNING LAW; JURISDICTION; VENUE. These Terms and Conditions are entered into in New York, NY, and in all respects shall be construed and governed by the laws of the State of New York, excluding its conflict of laws principles. By transmittal and acceptance of a Sales Order, Purchaser and Seller agree and accept that any legal action or proceeding with respect to these Terms and Conditions shall be brought in the state courts for the State of New York, County of Nassau, or in the Federal District Court for Nassau County, New York, and the parties expressly waive any objection based on personal jurisdiction, venue or forum non conveniens. The parties further agree that these Terms and Conditions and the rights and obligation of the parties hereunder, shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period, as amended.
25. NO IMPLIED WAIVER. The failure of either party at any time to require performance by the other party or make any election under any provision of these Terms and Conditions shall in no way affect the party's right to require such performance or make such election at any time thereafter, nor shall the waiver of either party of a breach of any provision of these Terms and Conditions constitute a waiver of any succeeding breach of the same or any other provision.
26. COMMUNICATIONS. A party may communicate by electronic communication, including, but not limited to, email and facsimile, so long as the party can generate or receive proof of transmission.
27. DAYS. "Days," as used in these Terms and Conditions, shall mean business days.
28. RELATIONSHIP OF PARTIES. Seller and Purchaser are independent contracting parties and nothing in these Terms and Conditions shall make either party the agent, joint venturer or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
29. FURTHER ASSURANCES. The parties agree to execute any further documents and provide any requested assurance reasonably necessary for the parties to effectuate the purpose of these Terms and Conditions.
30. SUGGESTED SALES PRICE ON RESALE OF THE PRODUCT. Seller shall furnish to Purchaser a current list of suggested retail selling prices for the Dermelect® product.
31. DISCONTINUANCE OF USE OF NAMES. Upon termination or expiration of this Agreement, Purchaser will immediately discontinue every use of all trademarks of Seller, whether registered at the time of signing or thereafter, including without limitation, the name Dermelect® and shall immediately discontinue the use of any language stating or suggesting that Purchaser is a reseller of Seller or affiliated in any way with Seller and thereafter shall not use the name Dermelect® directly or indirectly in connection with its business, nor use any other name, title or expression so nearly resembling the name Dermelect® as would be likely to lead to confusion or uncertainty as to deceive the public; provided, however, that Purchaser shall be allowed to continue to use the name Dermelect® in connection with the sale of the Dermelect® products delivered to Purchaser prior to such expiration or termination provided all such sales are in compliance with these Terms and Conditions.
32. BINDING ON AFFILIATES. This Agreement shall be binding on any parent, subsidiary or affiliate of Purchaser. Any such parent, subsidiary or affiliate shall be bound by all of the terms and conditions of this Agreement as if an original party hereto. "Affiliate", for purposes of this Agreement, shall mean any individual or entity who, directly or indirectly, through one or more intermediaries, is controlling, is controlled by, or is under common control with the Purchaser. The term "control" (including the terms "controlled by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an individual or entity, whether through membership, title or position, ownership of voting securities, by contract, or otherwise.
33. INJUNCTIVE RELIEF. Purchaser acknowledges that its compliance with this Agreement is necessary to protect the business of Seller and that a breach by Purchaser will irreparably and continually damage Seller. Seller would encounter extreme difficulty in attempting to prove the actual amount of damages suffered by it as a result of such breach. In such event, Seller would not have an adequate remedy at law and, therefore, in addition to any other remedy it may have at law or in equity, in the event of any such breach or threatened breach of this Agreement, Seller shall be entitled to seek and receive, (i) specific performance, (ii) a preliminary or permanent injunction in order to prevent the breach or threatened breach or (iii) both (i) and (ii) above.
The parties enter into and make effective these Terms and Conditions as of the date indicated below, or if Purchaser shall sign this Agreement by electronic acknowledgement, the date of such electronic acceptance. |
