Product Purchase Agreement Terms and Conditions
This Product Purchase Agreement Terms and Conditions (“Agreement”) outlines the terms and conditions that govern the purchase of ariessence® pure PDGF+ (“Product”) from LRM Aesthetics, Inc., a wholly owned subsidiary of Lynch Regenerative Medicine, LLC. By agreeing to and accepting purchases of Product, you, the Customer, agree to be bound by the terms and conditions herein. If you, as the Customer, do not agree with these terms and conditions, including any term or conditions incorporated herein by reference, do not place orders for Product through LRM Aesthetics.
1. Product.
1.1. Product Use. Customer acknowledges and understands that Product is marketed solely as a topical cosmetic product and is not intended for any other use, including administration via injection. Product is not approved by the U.S. Food and Drug Administration (“FDA”) for the diagnosis, cure, mitigation, treatment, or prevention of any disease or condition, or to affect the structure or function of the body. Further, Customer acknowledges that individual results vary. Customer is responsible for accurately and truthfully informing the end-patient of material facts about Product, including any benefits and risks.
1.2. Compliance with Applicable Law and Labeling. Customer agrees to comply with all applicable laws relating to the use of Product, including without limitation any federal, state and/or local laws and regulations relating to product storage and handling, as well as any Product labeling instructions.
2. Product Orders, Shipping, and Invoicing.
2.1. Customer Eligibility. Product ordered shall be used by Customer solely for its patients and shall not be acquired for (a) any unlawful purpose or use; or (b) commercial resale, transfer, or trade (except to the end-patient).
2.2. Product Orders. All Product orders shall be submitted to LRM Aesthetics and shall be governed by this Agreement. LRM Aesthetics’ acceptance of any Customer order is hereby expressly made in reliance on Customer’s compliance with this Agreement. LRM Aesthetics reserves the right to accept or reject any Customer order in whole or in part for any reason.
2.3. Product Availability. Customer acknowledges and agrees that Product orders are subject to product availability. In situations of short supply, orders for Product from customers may have to be reduced in order for LRM Aesthetics to apportion available Product among its customers. LRM Aesthetics will take reasonable steps to provide Product in short supply to all of its customers. Nothing in this Agreement shall be construed to limit or restrict LRM Aesthetics’ right, at its sole discretion, to discontinue the manufacture, sale, and/or distribution of Product at any time during the Agreement.
2.4. Shipping. All Product orders will be delivered F.O.B. destination. Product will be delivered by standard ground shipping. Any expedited shipping may be subject to additional charges. LRM Aesthetics reserves the right to make partial shipments. Any quoted shipping dates are based on estimates at the time of quote. LRM Aesthetics will use commercially reasonable efforts to meet quoted shipping dates but does not guarantee any shipping or delivery date. LRM Aesthetics assumes no liability for any costs or damage resulting from any late delivery of Product.
2.5. Invoicing. LRM Aesthetics shall issue invoices to Customer on a per shipment basis for the Product contained in each shipment promptly following Product shipment. LRM Aesthetics will use commercially reasonable efforts to issue each invoice on the date of Product shipment but does not guarantee same day billing during high volume order periods.
2.6. Returns. All returns may be made pursuant to the current Return Policy, which is incorporated herein by reference. The current Return Policy is available on ariessence pure PDGF+’s website. LRM Aesthetics reserves the right to update the Return Policy from time to time without notice to Customer.
3. Payment Terms.
3.1. Payment Terms. Customer agrees to pay all invoices within thirty days (30) from the invoice date. Payment amounts exclude, and Customer shall pay, all sales, use and other taxes, export and import fees, customs duties, and similar charges applicable to the purchase, unless Customer provides LRM Aesthetics with an appropriate exemption certificate. All payments shall be made in U.S. dollars. Outstanding balances shall accrue interest at a rate equal to the lesser of one- and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, from the due date until paid. In addition, LRM Aesthetics reserves all other rights granted to a seller under the Uniform Commercial Code with regard to any nonpayment by Customer or any other breach of this Agreement by Customer.
4. Intellectual Property.
4.1. The sale and purchase of Product shall not confer upon Customer any license to manufacture any product under any patents or proprietary rights owned or controlled by LRM Aesthetics, its subsidiaries, affiliates, or suppliers. Customer acknowledges and agrees that all such rights are reserved to LRM Aesthetics.
4.2. Neither party will utilize any patented, trade names, trademarked, service marked or copyrighted material or property belonging to the other party, except as expressly permitted by the other party in writing prior to such use.
5. Warranty.
5.1. LRM Aesthetics warrants to Customer that Product conforms to its published specifications. LRM Aesthetics shall, as its sole obligation and Customer’s sole and exclusive remedy for any breach of this warranty, replace the Product which gave rise to the breach or, at LRM Aesthetics’ option, refund the amounts paid by Customer for the non-conforming Product. EXCEPT AS EXPRESSLY SET FORTH HEREIN, LRM AESTHETICS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
6. Miscellaneous.
6.1. Modification. LRM Aesthetics reserves the right to unilaterally update this Agreement without notice to Customer. Terms and conditions in this Agreement that were in effect on the date of the Product order shall control that specific Product purchase. LRM Aesthetics recommends reviewing the current Product Purchase Terms and Conditions before placing an order for Product. The current Product Purchase Terms and Conditions will be available online or included with the applicable order form.
6.2. Design Changes. LRM Aesthetics reserves the right, at its sole discretion, to improve, alter, modify, or redesign the Product without prior notice or any other obligation to Customer with respect to any such improvement, alteration, modification, or redesign.
6.3. Governing Law. This agreement shall be governed by and construed in accordance with the laws of the United States.[KD1]
6.4. Relationship of Parties. The relationship of the parties established under this Agreement is that of buyer and seller. Neither party is a partner, employee, or agent of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
6.5. Force Majeure. Neither party shall be responsible for any failure to comply with the terms of this Agreement or for any delay or failure of performance resulting from any cause beyond such party’s reasonable control, including the weather, civil disturbances, pandemics, supply shortages, acts of civil or military authorities or acts of God. If one or more causes are asserted by either party as a basis for non-performance of this Agreement for a period of greater than thirty (30) days, either party shall have the right to terminate the Agreement or product order by giving written notice to the other party within five (5) days following the end of such thirty (30) day period.
6.6. Waiver. Any waiver or failure to enforce any provision of the Agreement by either party on one or more occasions shall not be deemed a waiver of any other provision or of such provision on any other occasion.