All Sales of product by FD Holdings LLC are subject to the following “Terms and Conditions of Sale”
This sales agreement is made the day this order is processed via online shopping cart by and between FD Holdings LLC (the “Company”), and the customer requesting this online order, as Purchaser (“Purchaser”).
Terms & Conditions
1. These Terms and Conditions (the “Agreement”) are made and entered into by and between FD Holdings, LLC, a Delaware limited liability company (the “Company”) and any person or entity that acquires any products and/or services from the Company (the “Purchaser,” “You,” and “Your”), namely medical equipment (“Equipment”) and consumable products such as needle tips, topical serums, masks, solutions and any other products or services from the Company that are used as disposable items when administering micro-needling treatments (“Consumables”) (the Equipment and Consumables are collectively referred to as the “Products”) and shall be incorporated into all agreements from time to time made or to be made between the Company and Purchaser, including agreements set out in the Company’s Product Schedules and Order Forms, whether made in writing or in any other tangible or electronic form including without limitation agreements made by facsimile or electronic mail related to the purchase and delivery of Products, unless inconsistent with a separate written agreement between the Company and Purchaser. This Agreement shall apply in place of and prevail over any agreements whether oral or in writing by the Company and any purported provisions to the contrary are hereby excluded or extinguished. Without limiting the generality of the foregoing, the Company will not be bound by any standard or printed terms produced by the Purchaser, unless otherwise agreed to in writing.
2. Full payment is required prior to the shipment of Products. Upon receipt and inspection of the Product, Purchaser is considered to have accepted the Product and all sales are final. Any unopened Products returned or any refusal of delivery or cancellation of the Purchase Order, including events of default, Clause 12, will be subject to a thirty percent (30%) restocking fee. Goods remain the property of the Company until all monies owed are paid in full. In no event will refunds be given for any Consumables due to FDA regulations or Company policies. FDA Compliance Regulations mandate all Consumables from the Company cannot be returned for refund or credit once they have been shipped to the Purchaser. All medical device taxes are applied to the full retail price.
3. As the Purchaser, You represent that You are eighteen (18) years of age or older and eligible to purchase the Products. You agree and understand that the purchase and use of the Products are subject to all applicable laws.. You agree (1) to comply with all applicable laws, (2) not to use the Products for illegal purposes, (3) not to export or resell the Products outside of the country in which they are originally sold, (4) not to attempt to modify, reverse engineer, or otherwise tamper with the Products, and (5) to use the Products only as they are intended to be used. The Company’s receipt of Purchaser’s order request and payments of such order reflects Your acceptance of this Agreement including the pricing included with Your order.
4. PRODUCT SHIPMENT: Product shipment can be expected within manufacturer’s advised current delivery schedule which is typically 5-10 business days from receipt of Purchaser’s order request for order processing but may be a maximum of thirty (30) days. This is not to be taken as a guaranteed delivery date, and Company makes no guarantee as to the timeliness of delivery from the manufacturer. The Company shall not be liable for any monetary loss or damages of any kind arising from late delivery of the Products to the Purchaser.
5. FOB SHIPPING: Deliveries of Products shall be made F.O.B. shipping point. Absent written instructions to the contrary, the Company will select the carrier on behalf of Purchaser but such carrier shall not in any circumstances be construed as an agent of the Company. All shipping charges, insurance costs, plus applicable duties and taxes shall be paid by the Purchaser and shall be non-refundable. Unless otherwise specified in the Purchaser’s purchase order, the Company shall be authorized to make deliveries in partial shipments and to submit invoices in respect of each such partial shipment. Estimated time in transit ranges from 3 to 10 business days and is dependent upon Purchaser’s geographic location, but Company makes no guarantees of any kind as to the timeliness of delivery of the Products.
6. RISK OF LOSS: Risk of loss or damage for Products shall pass to Purchaser once the Products have left the Company’s location. Title to Equipment shall pass to Purchaser upon payment to the Company for the Products. Purchaser acknowledges that nothing herein shall transfer to Purchaser any intellectual or industrial property right (including without limitation copyright, trade secret, trademark or patent) in any Products. The Company will make reasonable efforts to deliver Products on the dates agreed to in the Company’s product schedules and order forms, but will not be liable for any loss or damage whether directly or indirectly from delays in delivery.
7. INDEMNITY: Purchaser shall indemnify, defend and hold the Company harmless from and against any and all damages, expenses, liabilities and losses of any kind whatsoever (including, without limitation, attorneys’ fees) arising out of or in connection with the Purchaser’s use of Products supplied, including claims made by any third parties relating to such use.
8. LIMITATION OF LIABILITY: In no event shall the Company be liable to Purchaser hereunder or in respect of any Products ordered or delivered to Purchaser, whether in contract, not including negligence or otherwise for a loss of profits or loss of use or for any incidental, consequential, special or indirect damages howsoever caused whether or not the Company has been advised of the possibility of such loss or damage. The Company’s maximum liability to Purchaser under this Agreement shall not exceed the amount paid by Purchaser for the Products which are the subject of the claim and in respect of all claims for Products ordered from the Company to which this Agreement applies the amount paid by Purchaser for the Products which are the subject of the claims; provided that nothing herein shall exclude or restrict the Company’s liability for death or personal injury arising from the negligence of the Company or its employees while acting in the course of their employment.
9. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Purchaser and the Company regarding the sale of Products to Purchaser. This Agreement may be amended or modified by the Company at any time, without notice to You. However, such amendments shall only apply to Your future purchases of Products. If You do not agree with such amended terms, Your only remedy is to not purchase the Products from the Company.
10. INTELLECTUAL PROPERTY RIGHTS: You acknowledge that Company or its licensors own all right, title and interest in and to the Products and the names used in connection with the Products, and that the Products and such names, logos, and branding constitutes the Company’s intellectual property and may be protected by laws related to intellectual property rights. You therefore agree that You are permitted to use the Products and the proprietary names only as expressly authorized by the Company and this Agreement. Derma Pen, the Derma Pen logo, and all other names, logos, icons and marks identifying the Company’s products and services are trademarks of Derma Pen, LLC and may not be used without the Company’s prior written consent. You agree to not disparage the Company, its officers, its affiliates and/or its brand names through online feedback, directly or otherwise, nor to use harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable communications of any kind or nature. All other product names mentioned are used for identification purposes only and may be trademarks of their respective holders. You may not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on any portion of the Products.
11. WAIVER OF RIGHTS: The waiver by a party of a breach of any provision of this Agreement shall not operate as nor be construed as a waiver of any subsequent breach thereof.
12. DEFAULT: An event of default shall occur upon the happening of any of the following events:
- (i) Any non-payment, when due, of any portion of the price or any other sum due to the Company hereunder including a chargeback or reversal of any authorized charges made;
- (ii) The failure by Purchaser to perform, keep or observe any of the covenants, agreements or other terms of this agreement, or the terms of any other agreement with the Company;
- (iii) Purchaser becomes insolvent or unable to pay its debts as they mature or become due, or any proceeding is instituted by or against Purchaser alleging that Purchaser is bankrupt, insolvent or unable to pay its debts as they become due; or
- (iv) The dissolution of Purchaser or the transfer by Purchaser of substantially all of its assets.
13. ASSIGNMENT: Purchaser shall not assign or transfer or purport to assign or transfer its rights, duties, or obligations under this Agreement. Any attempt to assign, transfer, or delegate any of Your rights, duties, or obligations under this Agreement will be void. This Agreement may be assigned by the Company in its sole discretion. This Agreement shall be binding inure to the benefit of the parties and their respective successors and assigns.
14. THE NEEDLES OR TIPS PURCHASED HEREUNDER ARE DISPOSABLE NEEDLES OR TIPS AND ARE MANUFACTURED AND INTENDED FOR ONE USE ONLY AND SHOULD BE PROPERLY DISCARDED AFTER ONE USE. By purchasing Products and thus executing this Agreement, Purchaser agrees it shall use the needles sold hereunder only once and will then properly dispose of the needles in a sharps bin. Purchaser also agrees that all use of the needles and the equipment shall be conducted by or under the supervision of a medical director and otherwise in compliance with all state, federal and local or territorial laws and ordinances.
15. NOTICES. To be effective, any notice, consents, approval or other communication required or permitted under this Agreement shall be in writing, delivered in person, mailed by certified or registered mail, return receipt requested, reputable overnight courier service, or by email to the appropriate party at the following addresses:
If to Purchaser: At Purchaser’s street or email address provided as part of Purchaser’s registration, as such information may be updated from time to time.
If to the Company: Derma Pen, LLC, 4760 S. Highland Drive, Suite 325, Salt Lake City, Utah 84117 Attention: Legal Department
The Company’s notice information may be changed from time to time by posting notice of such change to the Company’s website. Notice given in accordance with this Section shall be deemed effective when received, or if not received by reason of fault of addressee, when delivered.
16. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE PRODUCTS IS AT YOUR SOLE RISK. THE PRODUCTS ARE PROVIDED ON AN “AS IS,” “WHERE IS” AND “AS AVAILABLE” BASIS. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, TITLE AND NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY LAW. COMPANY MAKES NO WARRANTY THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS, NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS. However, the Company supports the warranty that is offered by the manufacturer of the Products. Currently, the warranty offered by the Equipment manufacturer is:
- (i) This product is manufactured under strict quality control and inspection processes.
- (ii) Warranty is to cover the operating defaults after the purchase during the warranty period (12 months after the purchase).
- (iii) When this product goes out of order under the normal use of customer, the manufacturer will repair it free of charge during the warranty period
- (iv) Damages (defaults) prescribed below are NOT to be covered by warranty.
- (a) Users faults by lack of care;
- (b) Unauthorized electric currency connection defaults;
- (c) Faults by the users own intention of dismantle repairs;
- (d) Damages caused by natural disaster (such as fire, flood, earthquake, lightening, etc.)
- (e) Replacement to new parts
17. GOVERNING LAW. This Agreement is governed in all respects by the laws of the State of Utah, without regard to conflicts of law provisions. Both Purchaser and Company submit to personal jurisdiction in Salt Lake County, Utah and further agree that any cause of action relating to this Agreement shall be brought in a state or federal court in Salt Lake County, Utah. You agree to voluntarily submit to, hereby consent to, and waive any defense to, the jurisdiction of such courts as to all matters relating to or arising from this Agreement.
18. INJUNCTIVE RELIEF. You agree and acknowledge that if You breach this Agreement, the Company may have no adequate remedy at law and will suffer irreparable harm as a result of such a breach and will therefore be entitled to injunctive relief without the obligation of posting a bond.
19. ELECTRONIC COMMUNICATION. Communications between You and Company may be by electronic means. You consent to receive communications from Company in electronic form, and agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to Purchaser electronically satisfy any legal requirement that such communications would satisfy if they were in writing, other than any non-waivable rights. You and Company each expressly agree to enter into this Agreement and conduct all transactions related thereto electronically pursuant to the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 and the Uniform Electronic Transactions Act, Utah Code Ann. §§ 46-4-101 to 46-4-502.
20. NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the benefit of Purchaser and Company and is not intended to benefit any third party. No third party may claim any right or benefit under or seek to enforce any term of this Agreement.
21. RELATIONSHIP OF THE PARTIES. Nothing in this Agreement shall be construed to create a partnership, employment relationship, or joint venture between Purchaser and Company. You and Company are independent contractors.
22. ENFORCEMENT OF THIS AGREEMENT. In the event it is necessary for Company to enforce its rights under this Agreement, You agree to pay all fees incurred by Company (including attorneys’ fees and collection agency fees).
23. MISCELLANEOUS. To the extent that a court, tribunal or other governmental authority of competent jurisdiction determines that any law is in conflict with the terms of this Agreement, the conflicting terms shall be superseded only to the extent necessary by the terms required by such law. If any provision of this Agreement shall otherwise be unlawful, void, invalid or for any reason unenforceable, then that provision shall be enforced to the maximum extent permissible to reflect the parties’ intent. In either case, the remainder of this Agreement shall continue in full force and effect. The Company shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond the Company’s reasonable control. Except as otherwise provided herein, the remedies provided under this Agreement are cumulative and shall not exclude any other remedies to which You or the Company may be entitled. The section headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.
Derma Pen is highly sensitive to the privacy interests of consumers
and believes that the protection of those interests is one of its most
significant responsibilities. In acknowledgment of its obligations,
to information about consumers that it acquires in the course of its
an email to [email protected].
Thank you for visiting www.DermaPen.com (the “Site”), operated
by Derma Pen, LLC (“Derma Pen”, “we”, “us” or “our”).
use of information you provide us through the Site; it does not apply
to other online or offline Derma Pen sites, products or services.
This Policy shall supersede and replace all previous versions thereof.
We may need to change the Policy from time to time in order to address
new issues and reflect changes on the Site or in the law. We reserve
the right to revise or make any changes to the Policy and your continual
use of the Site subsequent to any changes to this Policy will mean that
you accept such changes. Therefore, please bookmark this page and review
it periodically to assure familiarity with the most current version
of the Policy. We will post all changes to the Policy here so that you
will always know what information we gather, how we might use that information,
and when we will disclose that information to third parties. You can
Effective Date posted on the top of this page. YOUR USE OF THE SITE,
AND CONTINUED USE OF THE SITE FOLLOWING ANY CHANGES TO THIS POLICY,
SIGNIFIES YOUR CONSENT TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS
OF THIS POLICY. IF YOU DO NOT AGREE TO THIS POLICY, DO NOT USE THE SITE.
COLLECTING YOUR PERSONAL INFORMATION.
We collect and retain
two types of information about Site visitors: (i) personal information
that individual visitors provide when interacting on the Site, or voluntarily
at certain other points (such as via forms or emails), including, without
limitation, when you register for our online products and services;
and (ii) tracking data, which is automatically collected from every
Site visitor (collectively, “Information”). The personal information
that we gather may include your name, title, company or organization
name, work email, work phone, work or home address, and credit card
information. Additionally, we may collect information about your job
function and/or information about your company depending upon the nature
of the Information you submit. Also, if you contact us, we may keep
a record of your correspondence, including any Information contained
therein. When you visit the Site, certain anonymous information about
your visit may be automatically captured. This information includes
the name of the Internet service provider and the Internet Protocol
(IP) address through which you access the Internet; the date and time
you access the Site; the pages that you access while at the Site and
the Internet address of the website from which you linked directly to
our site. This information is used to help improve the Site, analyze
trends, and administer the Site. We attempt to aggregate such tracking
data so that no such data is tied to you in any personally-identifiable
manner, however, due to the nature of the Internet, this is not always
feasible and tracking data may be traceable back to you.
USE OF YOUR INFORMATION.
We use your personal information
for the following purposes: To register you for Site participation
and collect appropriate fees for purchased products and services. To
confirm your registration information or communicate with you by email
or telephone. To fill in certain registration information for you the
next time you visit a Derma Pen-operated site and want to purchase additional
products and/or services. To respond to your requests or correspondence.
To contact you about other products and services that may be of interest
to you. We use tracking data for a variety of purposes, including, without
limitation, for load balancing metrics, to create reports on user demographics
and Site traffic patterns, and to help us diagnose problems with our
server or other technical issues relating to the performance or security
of the Site. The reports that are generated from tracking data are used
for a variety of purposes, including, for example, improving the Site
and our services. We will not disclose any personal information to
third parties, except (i) to parties who perform services for us, as
further described below; (ii) when we believe that such disclosure is
required by law; (iii) to enforce the Policy; (iv) to protect the rights,
property, security or safety of Derma Pen, Site users or the public;
(v) to respond to an emergency or security breach; (vi) to offer you
products and services that may be of interest or applicable to you;
or (vi) as otherwise stated in this Policy. Please be aware that
this Policy and the choices you make on the Site will not necessarily
apply to personal information you may have provided to Derma Pen in
the context of other, separately operated, Derma Pen products or services.
Derma Pen may hire third-party agents or third-party
service providers to operate the Site and to perform functions on our
behalf, including packaging, mailing and delivering materials, answering
customer questions about products and services, sending postal mail,
analyzing data, other administrative tasks, gathering requirements for
product upgrades, performing surveys, and/or acting as an agent for
third party software, content or services. These third parties have
access to the Information needed to perform their functions. We seek
to limit such third parties to using the information that is shared
with them solely for the purpose of providing such services, however,
we cannot be responsible for such third parties’ use of Information
not in compliance with this Policy. In addition, we may disclose Information
to certain third parties if you have requested or authorized the disclosure
of such Information.
SPECIAL NOTE TO INTERNATIONAL USERS.
By using the Site, you
agree and acknowledge that the Site is hosted in the United States.
If you are attempting to access the Site from a physical location within
the European Union, Asia, or any other region with laws or regulations
governing personal data collection, use, and disclosure that differ
from United States laws, please be advised that through your continued
use of the Site, which is governed by U.S. law and this Policy, you
are transferring your Information to the United States and you consent
to such transfer and the terms and conditions of this Policy, including
the application of the laws of the United States and/or the State of
Utah, as further set forth below.
Site to ensure the integrity of the registration process. We may use
a session cookie that expires soon after you complete the registration
process, but could be still stored on your hard drive via your Internet
Transfer of Information to Third Parties
Upon a Sale or Change of Control. We retain the right to transfer or assign all Information pursuant
to a merger, consolidation or other transaction relating to Derma Pen
or our assets if the assignee or acquirer agrees to abide by the terms
of this Policy.
ACCESS TO YOUR PERSONAL INFORMATION
. Customer information
is collected by Derma Pen. You can review and edit your registration
information by sending an email to [email protected] Pen.com.
SECURITY OF YOUR PERSONAL INFORMATION.
We take reasonable
precautions to protect your Information from loss, misuse, unauthorized
access or disclosure, alteration or destruction. We maintain reasonable
physical, electronic and procedural safeguards for your Information.
You should recognize, however, that there is no such thing as “perfect
security” on the Internet and we cannot guarantee the security
of your Information. In addition, because Internet communication is
unsecure, it is also possible that the information you supply to us
or your access of any information via the Site or via email or other
electronic means will be intercepted during transmission. We cannot
be liable for any breach of our systems or interception of our transmission
and, FOR THE AVOIDANCE OF DOUBT, WE EXPRESSLY DISCLAIM, to the fullest
extent provided under law, ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS
OR IMPLIED, WITH RESPECT TO ENSURING, GUARANTEEING OR OTHERWISE OFFERING
ANY DEFINITIVE PROMISE OF SECURITY IN CONNECTION WITH YOUR PERSONAL
INFORMATION OR USAGE INFORMATION. LINKS TO OTHER WEBSITES. The
Site may contain links to other websites. Please be aware that this
Policy applies solely to the information collected on the Site. We are
not responsible for the privacy practices or the content of other websites.
We encourage you to be aware when you are leaving this Site and read
the privacy policies of each and every website that you visit before
providing any personally identifiable information. Trademarks DERMA
PEN and other trademarks displayed on the Site are the trademarks and/or
service marks of Derma Pen or its affiliates. They may not be used or
displayed without Derma Pen’s prior written consent or the appropriate
rights holder. All other trademarks, service marks and company names
and logos appearing on the Site are the property of their respective
owners. Other Communications From time to time, we may email Site
users information regarding the Site or developments affecting Derma
Pen. Such emails may be sent to Site users even if they have not requested
to receive any communication from us. Minors are not eligible
to use our Site. If you are under 18, you can use this Site only in
conjunction with your parents or guardians.
Limitation of Liability.
Derma Pen and its affiliates, officers, agents, partners
and employees shall not be liable for any direct, indirect, incidental,
special or consequential damages, resulting from the use or the inability
to use the Site and services or resulting from any information or services
obtained or messages received or transactions entered into through the
Site or resulting from unauthorized access to or alteration of your
transmissions of data, including, but not limited to, damages for loss
of profits, use, data or other intangibles, even if we have been advised
of the possibility of such damages. Because some jurisdictions do not
allow the exclusion or limitation of liability for consequential or
incidental damages, in such states liability is limited to the fullest
extent permitted by law. If you are dissatisfied with any portion of
remedy is to discontinue using this Site.
Compliance With Laws.
We reserve the right to disclose any Information to comply
with any law, regulation, decree, judgment, order, subpoena or any other
governmental order without any obligation to contest or verify its accuracy.
. This Policy is governed in all respects by the laws of
the State of Utah, without regard to conflicts of law provisions. You
agree to submit to personal jurisdiction in Salt Lake County, Utah and
further agree that any cause of action relating to this Policy shall
be brought in a state or federal court in Salt Lake County, Utah. You
agree to voluntarily submit to, hereby consent to, and waive any defense
to, the jurisdiction of such courts as to all matters relating to or
arising from this Policy.
We may occasionally update
Effective Date at the top of this Policy. For material changes to this
Policy, we will notify you either by placing a prominent notice on the
home page of the Site or by directly sending you a notification. We
encourage you to periodically review this Policy to stay informed about
how we are protecting the personal information we collect. Your continued
use of the Site and Derma Pen’s products and services constitutes
your agreement to this Policy and any updates.
If any part of this Policy is determined to
be invalid or unenforceable pursuant to applicable law, then the invalid
or unenforceable provision will be deemed superseded by a valid, enforceable
provision that most closely matches the intent of the original provision
and the remainder of this Policy shall continue in force and effect.
If you have questions about our Policy
or our use of your Information, or if you need help changing your personal
information, please contact us by sending email to [email protected]
or by writing to Derma Pen at: FD Holdings, LLC