This Professional Account Agreement (this “Agreement”) is entered into by and between Dermafirm USA, Inc., a Massachusetts corporation located at 9 Bartlet St. Suite# 259, Andover, MA 01810 (“Dermafirmusa”) and Account located at address below (“Account”). This Agreement is effective as of 2020-02-20.
Now, therefore, in accordance with the foregoing, and in exchange for good and valuable consideration, the adequacy and sufficiency of which is hereby recognized, the parties agree as follows.
“Confidential Information” includes all information, data, materials and knowledge which may be disclosed by Dermafirmusa to Account in confidence, or which Account may learn about, concerning the Products, Dermafirmusa, or Dermafirmusa’s Affiliate and should reasonably understand to be confidential. Confidential Information includes, without limitation: (i) any information which concerns the formulae, ingredients, source of ingredients, recipes, specifications, manufacturing processes, or cost data for the manufacture and production of the Products, (ii) performance and market testing of the Products, (iii) Dermafirmusa’s business plans, (iv) wholesale or unpublished price lists of the Products, (v) knowledge of the sales, profit performance or other results of operations of Dermafirmusa, including financial results, (vi) results of customer and market surveys, (vii) knowledge of supply relationships, and (viii) this Agreement.
“Product”: All Dermafirm brand products. Product is comprised of Retail Products and Professional Products.
1. Professional Skin Therapists. Account will ensure that its Location retains the services of a full-time, state-licensed, professional skin therapist (“PST”). The PST will be available to deliver professional skincare treatments and services at least 60% of the business hours of the Location. In the event that Account does not have a full-time PST at the Location, Account must replace the PST within 30 days of the date last worked by the previous full-time PST.
2. Education. All PSTs will complete the following educational requirements.
a. Initial Education. All PSTs will go through Dermafirmusa on-line core training provided by Dermafirm USA, Inc. No Product will be shipped to Account if it fails to satisfy these core education requirements.
b. Continuing Education. Those PSTs who have completed the Core Classes will attend two additional classes per year. At the sole option of Dermafirmusa, these continuing education requirements may be met via on-site training or online training. No Product will be shipped to Account if it fails to satisfy these continuing education requirements.
c. Other staff. Staff members other than the PST are encouraged to attend the Dermafirm USA provided courses.
3. Account and the Location must comply with all applicable licensing or certification requirements governing (i) the provision of professional skin treatments and services, and (ii) the sale of retail products.
4. Efforts. The account will use best efforts to professionally market the Products. Account will ensure that it and each of its employees, agents, and contractors use and recommend the Products in a responsible manner and in accordance with Dermafirm USA’s’ then-current training. The parties agree that failure to comply with Dermafirmusa training is presumptively negligent.
5. Retail Product Selection. The account will ensure that its Location stocks and offers for sale, at a minimum, all core mandatory lines of Retail Products. Account will also ensure that its Location stocks and uses a reasonable number of tester products to promote trial. Finally, Account will ensure that its Location stocks, and prominently displays in a professional fashion, brochures for all Retail Products stocked by Account.
6. Menu. The account will ensure that its Location posts a prominent menu that lists the description and cost of each professional skin treatment service offered to its customers.
7. Product Returns. Dermafirmusa provides a 100% satisfaction guarantee for its Retail Products. If one of Account’s customers has a complaint about any Retail Product, the customer will be permitted to return any unused portion of the Retail Product for an exchange. Dermafirmusa will provide Account with replacement Retail Products returned in accordance with Dermafirmusa’s return policy. In order to process returns, Account will contact Dermafirmusa’s customer service department. Dermafirmusa will not accept returns for Professional Product. In the event of product abuse, Dermafirmusa has right to refuse product returns upon inspection.
8. The account will immediately report to Dermafirmusa’s Customer Support team with any information regarding a possible defect in the Products or a possible adverse reaction to the Products.
9. Product Changes. Dermafirmusa reserves the right, in its sole discretion, to change its products, formulations, packaging, and labeling without liability to Account or Account’s customers.
10. New Products. In the event that Dermafirmusa introduces new brand products during the Term, Dermafirmusa may give notice of such new products to Account. The parties agree that notice under this Section 10 will serve to amend this Agreement to include these new products. If new products require training, Dermafirmusa will notify Accounts to go through appropriate training courses.
11. Opening Order. Concurrently with the execution of this Agreement, Account will submit an opening order minimum of $1,000 USD to provide its Location with the minimum requirements of Retail and Professional Products. Opening Orders must be paid by credit card (VISA, MasterCard, American Express, Discover), cashier’s check, or money order.
12. Orders. Account will submit subsequent orders of minimum of $500 USD through Dermafirm Usa’s purchase order system, or with assistance with phone calls by using the forms and procedures in effect at the time the order is submitted. Orders will be accepted in the sole discretion of Dermafirmusa. No terms or conditions accompanying any order that are inconsistent with this Agreement will apply, notwithstanding Dermafirm Usa’s acceptance of the order.
13. Pricing. All sales to Account will be priced according to the standard price list in effect when the order is received by Dermafirmusa.
14. Delivery. All orders will be delivered solely to the Location, which is the commercial establishment where Account offers for sale goods and services. All deliveries are subject to the freight and shipping terms in effect when an order is received by Dermafirmusa.
15. Terms. Provided that Account is in good standing after the opening order, future orders may be made by credit card (VISA, MasterCard, American Express, Discover) or C.O.D. with company checks. Dermafirmusa will not extend credit to Account, except as approved by Dermafirmusa in its sole discretion.
16. Retail Products. Account will re-sell Retail Products only within the geography location authorized by Dermafirmusa and only to consumers for ultimate consumption through personal use. Except in the case where Account provides Dermafirmusa with a valid Resale Tax Certificate, Retail Product orders will be charged applicable sales tax.
17. Professional Products. Professional Products will be used or applied only by properly trained PSTs. Account will not resell Professional Products. All Professional Product orders will be charged applicable sales tax.
18. Limits. Account will not sell, transfer, or otherwise move any Products to any location other than the location noted on the first page of this Agreement, including other locations under Account’s ownership or control. Account will not sell any Products to any distributor, reseller, web site operator (including, but not limited to an on-line auction or consignment sites), or retailer, nor will Account directly or indirectly offer Products on any on-line auction or consignment site. Account will not sell any Products through e-commerce, the World Wide Web, or any other Internet facility, except when explicitly authorized by Dermafirmusa, in writing and in advance, to do so. Dermafirmusa reserves the right to regulate, restrict, or prohibit the sale of Products by Account via the Internet. Account will ensure that its employees, agents, and contractors abide by the obligations of this Section 18.
19. Dermafirmusa reserves the right to change the terms of sale, including pricing, upon 30 days notice.
20. Sales by Dermafirmusa. Dermafirmusa reserves the right to sell Products to other accounts and directly to consumers.
21. Definition. “Dermafirmusa Intellectual Property” includes (i) the Labo De Dermafirm, Dermafirmusa trademarks and the other trademarks, service marks, trade names, words, designs, graphics, 3-dimensional objects, symbols, logos, slogans, domain names, URLs and other identifications of Dermafirmusa, and the Products, and (ii) Dermafirmusa’s websites, training videos, training manuals, other instructional materials, and other written, audio, or video materials produced or owned by Dermafirmusa.
22. Use. All use (including, by way of example only, selling, copying, and distributing) of the Dermafirmusa Intellectual Property by Account is subject to the prior written approval of Dermafirmusa, which will be granted or withheld in the sole discretion of Dermafirmusa. No use of Dermafirmusa Intellectual Property will be made without the prior written approval of Dermafirmusa, which may be withheld in its sole discretion. All use of the Dermafirmusa Intellectual Property by Account will inure to the benefit of Dermafirmusa.
23. Additional Restrictions on Use. The account will not use any part or portion of the Dermafirmusa Intellectual Property as its business name, URL, or logo or any part thereof. Account will not, and will not permit others to, modify, change, dilute, alter, or deface, in any form or manner, (i) the Products and their contents, packaging, designs, or labeling, or (ii) the Dermafirmusa Intellectual Property.
24. Protection of Confidential Information. Except as described in this Section 30, Account will not disclose any Confidential Information to third parties and will disclose Confidential Information to those of its employees who (i) have a need to know, and (ii) are contractually bound to maintain the confidentiality of the Confidential Information. If necessary to permit third parties to render their services, Account may disclose the required Confidential Information only to its accountants or attorneys, provided that these third parties are bound to maintain the confidentiality of the Confidential Information, and are bound to use the information only as necessary to perform their services for Account. An account will use Confidential Information solely to fulfill its obligations under this Agreement, and for no other purpose. In no event will Account provide less protection to Confidential Information than Account provides for its own confidential information.
25. Term. Unless otherwise terminated pursuant to the provisions of this Part H, this Agreement will continue on an annual basis, starting at the Start Date. No action is required from either party to effect this continuation.
26. Termination for Convenience. This Agreement may be terminated by either party, without cause and solely for convenience, upon 30 days notice.
27. Termination for Cause. This Agreement also may be terminated by either party for a cause, upon failure by the other party to fulfill any obligation of this Agreement. In addition, Dermafirmusa may terminate this agreement for cause in the case that Account undertakes any action or conduct that in Dermafirmusa’s opinion damages or may damage the name, reputation or goodwill of Dermafirmusa, or the Products.
28. Suspension. In addition to the ability to terminate this Agreement as described above, Dermafirmusa may, in the alternative and at its option, suspend its performance under this Agreement. This option will be exercised, if at all, in the sole discretion of Dermafirmusa. Suspension does not relieve Account of its responsibility to pay for Products or to fulfill its obligations under this Agreement.
29. Pending Orders. Upon termination or suspension of this Agreement, Dermafirmusa may cancel Account’s pending orders, even if they have been accepted, without penalty.
30. Obligations. Upon termination of this Agreement, Dermafirmusa may, at Dermafirmusa’s option, require Account to sell back to Dermafirmusa all good and readily saleable Products, at prices not in excess of the net purchase price of such Products by Account from Dermafirmusa. Dermafirmusa will exercise this option, if at all, in its sole discretion, and restocking fees may apply. If Dermafirmusa does not exercise this option in writing within 15 days of the termination of this Agreement, Account may sell to consumers its remaining Retail Products for 30 days after the date of termination, provided that all such sales are made in compliance with this Agreement. Once Account has sold all remaining Retail Products (either to Dermafirmusa or to consumers in compliance with this Agreement), or the 30 days have passed, whichever is earlier, Account will:
a. immediately and permanently cease all sale, promotion, and advertising of the Products,
b. immediately return to Dermafirmusa all Confidential Information, documentation, manuals, educational materials, and advertising/promotional materials,
c. immediately and permanently cease all use of the Dermafirmusa Intellectual Property,
d. immediately destroy all remaining Products in Account’s possession, and
e. allow a Dermafirmusa representative to inspect its premises to ensure compliance with these terms.
31. Each party agrees to indemnify, defend and hold harmless the other party its respective officers, shareholders, and employees from and against any and all reasonable expenses, damages, claims, suits, actions, judgments and costs (including reasonable attorney’s fees) arising out of: (i) the indemnifying party’s performance or breach of this Agreement; (ii) the indemnifying party’s negligence or other tortious conduct; or (iii) the indemnifying party’s violation of applicable law. The party seeking to be indemnified, defended and held harmless under this section must give prompt written notice of any claim to the other party. This provision shall survive the termination or expiration of this Agreement but only apply to acts that occur during the Term.
32. Each party agrees to secure and maintain the following insurance in full force and effect throughout the Term: (i) commercial general liability insurance in the amount not less than one million dollars ($1,000,000) per occurrence and one million dollars ($1,000,000) general aggregate for bodily injury/and or property damage (including personal injury and property coverages), and (ii) worker’s compensation insurance in amounts required by applicable law. Certificates evidencing proof of insurance shall be provided upon request. The insurance policies shall be written on an “occurrence” basis and shall provide for thirty (30) days notice of any cancellation or modification of the policy.
33. Each signatory to this Agreement represents and warrants that he or she is duly authorized to enter into this Agreement on behalf of the company that he or she represents.
34. Account represents and warrants that it will: (i) conduct business in a manner that reflects favorably at all times on Products and the good name, goodwill and reputation of Dermafirmusa, (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Dermafirmusa or Products, (iii) make no false or misleading representations with regard to Dermafirmusa or Products, (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Dermafirmusa or Products, and (v) make no representations, warranties or guarantees to customers or to the trade with respect to the features or capabilities of the Products that are inconsistent with the materials distributed by Dermafirmusa.
35. Dermafirmusa Warranty. Dermafirmusa represents and warrants that each shipment or delivery of Products that Dermafirmusa makes to Account during the Term will not, on the date that Dermafirmusa delivers the shipment or delivery to the designated common carrier, contain any article that is adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act. Account’s sole recourse CONFIDENTIAL
in the event of a warranty claim pursuant to this section is reimbursement for the cost of the adulterated or misbranded Products.
36. Warranty Disclaimer. DERMAFIRM USA MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE PRODUCTS, EXCEPT AS EXPLICITLY SET FORTH IN THIS PART J. ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT, ARE HEREBY DISCLAIMED.
37. Relationship of the Parties. This Agreement does not create a fiduciary relationship or joint venture between the parties or make either party a general or special agent, partner or employee of the other for any purpose. With respect to all matters, Account’s relationship to Dermafirmusa is as an independent contractor.
38. Compliance with Laws. The account will comply with all applicable laws in performing its obligations pursuant to this Agreement.
39. Choice of Laws. This Agreement is governed solely and exclusively by the laws of the State of Massachusetts, which laws will apply as though this Agreement, and all rights and obligations created herein, are performed entirely within Massachusetts.
40. Jurisdiction and Venue. The parties agree that the sole and exclusive jurisdiction and venue for any and all disputes concerning this Agreement or with Dermafirmusa shall be in the Essex County of Massachusetts. The parties hereto consent to the personal jurisdiction of the courts of Massachusetts.
41. No Waiver. Dermafirmusa’s failure at any time to insist on strict performance of any term of this Agreement will not be deemed a waiver of that or any other term or of the right to insist on strict performance of any term at a later time.
42. Notice. Any notice required under this Agreement or otherwise shall be sent to a party at the address specified on the first page of this Agreement. Notices must be in writing and will be deemed received (i) four days after deposit with the U.S.P.S. if sent certified mail, return receipt requested, (ii) one day after the deposit of the notice for delivery with a reputable national overnight courier, or (iii) immediately upon hand delivery. No other form of notice will be deemed effective, although courtesy copies may be sent via alternative means. Notice addresses may be changed through the procedure described in this section.
43. Transfer. The account will not assign or transfer this Agreement. This Agreement is freely assignable by Dermafirmusa, without notice.
44. Binding on Successors. The covenants, agreements, terms, and conditions contained in this Agreement shall be binding upon and shall inure to the benefit of, the permitted successors, assigns, heirs and personal representatives of the parties hereto.
45. Limitation of Liability. THE LIABILITY OF DERMAFIRM USA AND ITS SUPPLIERS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUPPLY OF PRODUCTS HEREUNDER, SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY ACCOUNT TO DERMAFIRM USA FOR THE PRODUCTS GIVING RISE TO SUCH DAMAGES, AND SHALL IN NO EVENT INCLUDE LOSS OF PROFITS, COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, OR ANY INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF DERMAFIRMUSA OR ITS SUPPLIER IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
46. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the provision shall be severed and the remainder of the Agreement shall continue in full force and effect.
47. Entire Agreement. This Agreement, along with the Website Policy, exhibits, schedules, and attachments hereto, is the entire agreement between the parties. All other prior agreements, contracts, discussions, presentations, and other communications, whether written, oral, or otherwise, are completely without effect. This Agreement shall not be modified, revised, amended or superseded except by a further writing prepared by Dermafirmusa and signed by an authorized representative of the parties, excepting only (i) changes made pursuant to Section 10 of this Agreement, and (ii) the Website Policy, which may be changed by Dermafirmusa posting changes on its website or by other means of communication authorized by Dermafirmusa. The account is responsible for consulting the Website Policy on a regular basis to ensure Account’s compliance therewith.
In witness whereof, the parties have caused this Agreement to be executed by their duly authorized representatives.
48. Survival. Those sections that, by their very nature, require performance beyond any termination of this Agreement will survive any such termination, including, but not limited to, the explicit indemnification requirements and warranties contained in this Agreement.
VP Operations, Dermafirm USA Inc
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