Last updated on October 11th, 2022
F.D. HOLDINGS, LLC
SALE OF PRODUCT TERMS AND CONDITIONS
This FD Holdings, LLC Sale of Product Terms and Conditions is entered into by and between FD Holdings, LLC, a Delaware limited liability company (the “Company”) and the company/person/entity requesting this on-line order for Products (as hereinafter defined) (the “Purchaser”). The Company provides the Products and services on the following terms and conditions.
- Terms and Conditions. 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”), including but not limited to medical equipment (“Equipment”) and consumable products such as needle tips, topical serums, masks, solutions and any other products or services delivered by 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 this Agreement, and all and other such subsequent agreements entered into between the parties 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.
- Electronic Communications. When you use our website, or send e-mails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on the Company’s site or through the other mediums, such as our Message Center, and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. 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.
- All Sales Final. Upon ordering the Products from the Company, full payment is required prior to any delivery of the Products by the Company. Except as provided by the written consent of the Company, in the Company’s sole and absolute discretion, all sales are to be deemed final. There is no provision for a refund for any goods returned or any refusal of delivery or cancellation of the order or Purchase Order, including events of default clause (as defined in Section12 hereof). In the event a return is approved by Company, such return in the sole and absolute discretion of the Company, then this will incur a thirty percent penalty fee or loss of profit. Refunds in this case will be issued as store credit. Goods remain the property of the Company until all monies owed are paid in full.
- Representations of Purchaser. Upon submission of a Purchase Order of the Products, Purchaser represents that You are eighteen (18) years of age or older and eligible to purchase the Products. If you are a corporation, limited liability company, or other such entity, you represent that you are valid and existing in the laws of the jurisdiction to which You operate. 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, or within the United States, 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.
- Product Shipment. All Products purchased through a Purchase Order will be subject to the shipment of the manufacturer. Product shipment can be expected within manufacturer’s advised current delivery schedule which is typically 5-10 business days from receipt of Purchase Order request for order processing and payment of Purchase Price. Without limiting the foregoing, any shipment 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.
- FOB Shipping. Deliveries of Products shall be made F.O.B. from 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 may range from 5 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.
- Risk of Loss. All purchases of physical items from the Company are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier. Title to Equipment shall pass to Purchaser upon payment in full 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. Risk of loss or damage to Products delivered over an electronic network shall pass to Purchaser upon the transmission of copy to purchaser electronically.
- Copyright. All content included in or made available through any Company Products or services, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, software, and including without limitation, the Products is the property of the Company or its manufacturers and protected by United States and international copyright laws. The compilation of all content included in or made available through any Company Service is the exclusive property of the Company and protected by U.S. and international copyright laws.
- 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.
- License and Access. Subject to your compliance with these Conditions of Use and any Purchase Order or other Service Terms, and your payment of any applicable fees, including without limitation, the payment in full for the purchase of the Products, the Company and its manufacturers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and commercial use of the Products. This license does not include any resale or commercial use of any Company Service, or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of any Company Service or its contents; any downloading, copying, or other use of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Conditions of Use or any Service Terms are reserved and retained by the Company or its licensors, suppliers, publishers, rightsholders, or other content providers. No Company Service, nor any part of any Company Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of the Company. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Company without express written consent. You may not use any meta tags or any other “hidden text” utilizing the Company’s name or trademarks without the express written consent of the Company. You may use the Company Services and Products only as permitted by law. The licenses granted by the Company terminate if you do not comply with these Conditions of Use or any Service Terms.
- 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.
- Default. An event of default shall occur upon the happening of any of the following events:
- Any non-payment, when due, of any portion of the price or any other sum due to the Company;
- 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;
- 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;
- The dissolution of Purchaser or the transfer by Purchaser of substantially all of its assets.
- Sanctions and Export Policy. You may not use any Company Products or Services if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using Company Products. You must comply with all U.S. or other export and re-export restrictions that may apply to goods, software, technology, and services.
- 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.
- Product Disclaimer. THE NEEDLES OR TIPS PURCHASED HEREUNDER ARE DISPOSABLE NEEDLES OR TIPS AND ARE MANUFACTURED AND INTENDED FOR SINGLE 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.
- 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. Without limiting the foregoing, the foregoing disclaimer of warranties as contained in this Section 16 does not alter, amend, diminish or create warranties greater than any warranty that is offered by the manufacturer of the Products. To the best of Company’s knowledge, such warranty offered by the Equipment manufacturer is defined as a non-transferrable, limited lifetime warranty for Products on the following terms:
- This product is manufactured under strict quality control and inspection processes.
- Any Warranty is to cover the operating defaults after the purchase during the warranty period (12 months after the purchase). Upon purchase of the Products, Purchaser shall enroll in Company’s Training with the Director of Education and Training and must participate in said Training regarding initial product set-up. In the event Purchaser does not or elects not to participate in the Training, the Warranty provided herein shall be null and void and have no force or effect. This 12-month warranty may be extended if Purchaser’s account is in good standing and has ordered additional Products within the last three (3) months, and has ordered a minimum of Thirty (30) needle cartridges per year and maintains the deivce in sanitary condition using the Company’s Anti-bacterial spray. Upon the Purchaser’s account being deemed in default or discontinuing ordering Products from the Company, the warranty period shall cease as provided herein.
- In the event of malfunction or Product defect under the normal use by Purchaser (normal use to include solely use of the Product under the manufacturer’s guidelines), the manufacturer will repair it free of charge during the warranty period.
- Damages (defaults) prescribed below are NOT to be covered by warranty
(i) Users faults by lack of care;
(ii) Unauthorized electric currency connection defaults;
(iii) Faults by the users own intention of dismantle repairs;
(iv) Damages caused by natural disaster (such as fire, flood, earthquake, lightening, etc.)
(v) Replacement to new parts
- 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.
- Indemnification. 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.
- Non-Disparagement. Purchaser nor any of their subsidiaries, affiliates, and related companies and partnerships, the shareholders, members, officers, directors, representatives, servants, agents, members, managers and employees of Purchaser, and all of their respective successors, heirs, assigns, or personal representatives shall in any way publicly criticize, disparage, call into disrepute or otherwise defame or slander the Company, its subsidiaries, affiliates, and related companies and partnerships, the shareholders, members, officers, directors, representatives, servants, agents, members, managers and employees of the Company in any manner that would reasonably be expected to damage the Company in any manner, including the Company’s business or reputation.
- 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: FD Holdings, LLC, Attention: Legal Department to 1975 West Bay Drive #301, Largo, Florida 33770.
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.
- Governing Law. This Agreement is governed in all respects by the laws of the State of Delaware, without regard to conflicts of law provisions. Both Purchaser and Company submit to personal jurisdiction in Federal and State District Courts of Delaware and further agree that any cause of action relating to this Agreement shall be brought in a state or federal court in Delaware. 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.
- 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.
- Counterparts. This Agreement may be executed in one or more counter parts and delivered (including by facsimile transmission or via electronic mail) in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matters described herein, and supersede all prior oral or written agreements, commitments or understandings with respect to the matters provided for herein. Without limiting the foregoing, upon submission of a Purchase Order for Products, such Purchase Order shall be deemed an exhibit to this Agreement and shall be subject to the Terms and Conditions contained herein.
- Enforcement; Specific Performance. In the event of a breach or dispute arising under this Agreement, the non-breaching party or the party prevailing in such dispute shall be entitled to recover its costs, including without limitation reasonable attorneys’ fees, from the breaching or non-prevailing party.
- Binding Effect. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and assigns.
- Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision hereof.
- Construction. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders, and vice versa. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean including without limitation. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
- 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.
- No Joint Venture or Partnership. 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.
- Time is of the Essence. Time is of essence of each and every term, condition, covenant and warranty set forth herein.
- Severability. If any provision of this Agreement or any application thereof shall be invalid or unenforceable, the remainder of this Agreement and any other application of such term or provision shall not be affected thereby. Notwithstanding the foregoing, it is the intention of the parties hereto that if any provision of any of this Agreement is capable of alternative constructions, one of which would render the provision void and the other of which would render the provision valid, then such provision shall be construed in accordance with the construction which renders such provision valid.
- Authority. Purchaser’s representative who is a signatory to this Agreement warrants that he/she/it has full power and authority to bind the respective party herein.