Terms and Conditions of Sale of Dermazone Solutions, Inc.
Effective Date: February 5, 2020
1. Acceptance of Terms and Conditions of Sale. By placing an order with DERMAZONE Solutions, Inc. (“DERMAZONE”), CUSTOMER (“CUSTOMER”) agrees to be bound by these Terms and Conditions of Sale (“Terms and Conditions”). These Terms and Conditions supersede any other terms and conditions proposed by CUSTOMER as well as any other prior or contemporaneous oral or written agreement, communication or proposal regarding the subject matter hereof. DERMAZONE and CUSTOMER are sometimes hereinafter referred to individual as a “Party” and jointly as “the Parties.”
2. Order Confirmation.
(a) Confirmations. All orders by CUSTOMER shall be in the form of a Purchase Order approved and confirmed by DERMAZONE prior to manufacture. Purchase Orders confirmed by DERMAZONE are binding upon CUSTOMER, subject to adjustment by DERMAZONE at the time of invoice as provided in section 3 below.
(b) Shipping. CUSTOMER shall be responsible for shipping costs of all products listed on the Purchase Order (“Products”), including without limitation insurance, taxes and duties. Said shipping costs are F.O.B. the applicable manufacturing facility, with risk of loss and title passing to CUSTOMER upon DERMAZONE’s delivery of the Products to a common carrier. Shipping costs are not included in DERMAZONE’s invoiced price unless expressly stated. If CUSTOMER does not designate a carrier, DERMAZONE may arrange payment for shipping and insurance with any carrier, but such costs are the sole responsibility of CUSTOMER.
(c) Modifying Terms. Any terms or conditions of sale contained on a Purchase Order submitted by CUSTOMER (“Customer Terms”) shall not be binding on DERMAZONE, it being understood that the only terms and conditions applicable to CUSTOMER’s orders are these Terms and Conditions. Accordingly, DERMAZONE’S approval and confirmation of a Purchase Order shall not be deemed approval or acceptance of any Customer Terms.
(d) Delivery Times. Delivery times quoted are estimates only and DERMAZONE shall not be liable for delays in delivery.
3. Invoices. DERMAZONE will issue an invoice to CUSTOMER immediately upon shipment leaving our warehouse (or other designated point of shipment). Invoice and shipping of +/- 10% of the quantities specified on any Purchase Order shall be considered fulfillment of that Purchase Order. Each invoice shall be binding upon CUSTOMER, shall constitute an account stated and, unless otherwise agreed in writing, shall be paid in full prior to shipping. Invoices shall not be subject to any objection whatsoever except in the case of returnable products as provided in section 8 below.
4. Returns and Cancellations.
(a) Returns. Products are not returnable to DERMAZONE except as provided in section 8 below.
(b) Cancellation Charges. In the event that CUSTOMER cancels an order:
(i) prior to composition of the relevant Product by DERMAZONE, CUSTOMER forfeits any deposit and shall pay DERMAZONE for its out-of-pocket costs related to the acquisition or use of any raw materials, packaging, labels and other materials purchased and/or used by DERMAZONE in working to fulfill the cancelled order;
(ii) after composition of the relevant Product but before final packaging, CUSTOMER shall be responsible for paying DERMAZONE Eighty-Five Percent (85%) of the confirmed price for the cancelled order;
(iii) after packaging of the relevant Product, CUSTOMER shall be responsible for paying DERMAZONE One Hundred Percent (100%) of the confirmed price for the cancelled order.
(c) Disposal. In all cases of cancellation, CUSTOMER shall be solely responsible for paying DERMAZONE the full cost of any disposal, together with an administration fee equal to fifteen percent (15%) of the cost of disposal.
(d) Future Orders. Without in any way limiting DERMAZONE’s right and remedies, if CUSTOMER has cancelled orders, DERMAZONE may, in its sole discretion, require CUSTOMER to pay an increased deposit on future purchase orders.
5. Price Increases for Manufacturing Materials. If the cost for any materials required to manufacture any Product increases by more than five percent (5%) between the date of
DERMAZONE’s confirmation and the date on which such materials are purchased for the manufacture of such Products, CUSTOMER shall be responsible for the full amount of such increase, which shall be due and payable by CUSTOMER on the final invoice rendered by DERMAZONE for such Products.
6. Change Orders. If CUSTOMER desires to change any term or condition of a confirmed Purchase Order, or requests a production or delivery date prior to or beyond the dates scheduled by DERMAZONE and confirmed to CUSTOMER, or engages in any act or omission, whether or not intentional, that may affect production or delivery of Products, provided that such changes are not caused by any act or omission of DERMAZONE, CUSTOMER shall be subject to the following “Change Order” provisions:
(a) Change Order Fee. DERMAZONE may, at its sole option, charge a “Change Order Fee” of Five Percent (5%) of the value of the Purchase Order; and
(b) Additional Fee for Change Orders. If the Change Order occurs within forty-five (45) days of production of the order, then in addition to the Change Order Fee, CUSTOMER shall pay:
(i) On Purchase Orders of up to $25,000.00, an additional fee of five percent (5%) of the Purchase Order;
(ii) On Purchase Orders from $25,001.00 to $50,000.00, an additional fee of six percent (6%) of the Purchase Order;
(iii) On Purchase Orders from $50,001.00 to $75,000.00, an additional fee of seven percent (7%) of the Purchase Order; or
(iv) On Purchase Orders over $75,000.00, an additional fee of eight percent (8%) of the Purchase Order.
(c) Inventory Costs Related to Change Orders. In addition to the foregoing charges, CUSTOMER shall pay the full cost of any purchased inventory for the manufacture of Products that becomes obsolete, overbought, underused or expired by reason of any Change Order.
(d) Subsequent Change Orders. Each subsequent event necessitating a Change Order may, at DERMAZONE’s sole option, incur an additional Change Order Fee.
7. Delinquent Payments.
(a) Charges Related to Delinquent Payments. When an invoice is past due for twenty (20) or more days, DERMAZONE may, at its sole option, assess any or all of the following charges, which charges are payable on demand, and must be paid in full before CUSTOMER’s account may be considered current:
(i) Delinquency Charge. A delinquency charge of Five Percent (5%) of the invoiced amount (the “Delinquency Charge”); and
(ii) Costs. All costs incurred by DERMAZONE from the date on which payment of the invoice is due until the date on which such invoice is paid in full and CUSTOMER’s account with DERMAZONE is current. Such costs include but are not limited to warehousing and other costs related to holding Products or components thereof as provided in section 7(c) below, and all costs related to disposal of Products or components thereof (“Costs”); and
(iii) Inventory Charges. The full cost of any purchased inventory for the manufacture of Products that becomes obsolete, overbought, underused or expired by reason of any Change Order or delinquency in payment (“Inventory Charges”).
(b) Collection Fees. If CUSTOMER’s delinquent account is referred to an attorney or collection agency, CUSTOMER shall pay all reasonable attorneys’ fees (including all court costs and legal expenses), or collection agency fees.
(c) Suspension of Orders. DERMAZONE MAY, IN ITS SOLE DISCRETION, SUSPEND THE PRODUCTION OR SHIPPING OF ANY OUTSTANDING ORDER PLACED BY CUSTOMER UNTIL CUSTOMER HAS PAID IN FULL ALL AMOUNTS DUE ON DELINQUENT INVOICES, DELINQUENCY CHARGES, COSTS, AND INVENTORY CHARGES. THE FOREGOING SHALL APPLY EVEN IF CUSTOMER HAS PAID DERMAZONE A DEPOSIT ON SUCH OUTSTANDING ORDER.
8. Product Returns.
(a) Rejection. CUSTOMER shall have ten (10) business days from the date of receipt of a Product to inspect and reject all or part of any shipment on the grounds it does not comply with applicable specifications.
(b) Acceptance by DERMAZONE. If DERMAZONE accepts such rejection, such rejected Product shall be returned to DERMAZONE at DERMAZONE’s sole expense, and replaced by DERMAZONE as soon as reasonably possible. Upon receipt of the rejected product from CUSTOMER, DERMAZONE shall issue a credit to CUSTOMER for the full value thereof; or
(c) Non-Acceptance by DERMAZONE. If DERMAZONE does not accept CUSTOMER’s rejection, the Parties shall seek the opinion of an independent laboratory reasonably acceptable to both Parties, which opinion shall be final and binding with respect to the determination of the existence or nonexistence of any patent or latent defects. The expenses for such determination shall be borne by the Party deemed by the independent laboratory to be incorrect with respect to such matter, or, if the independent laboratory cannot identify the Party in error, then the Parties shall share the expenses equally.
9. Product Recall. To the extent permitted or required by law, any decision to recall, withdraw or cease distribution of any Product as a result of a violation of applicable law or because the Product presents a possible safety risk shall be made by CUSTOMER after consultation with DERMAZONE. Any such recall or market withdrawal shall be managed, executed and paid for by CUSTOMER, provided, however, that if recall or market withdrawal of Products is the direct result of a negligent act or omission of DERMAZONE, then DERMAZONE shall pay CUSTOMER its direct out-of-pocket costs of recall and withdrawal.
10. Limited Warranty. DERMAZONE WARRANTS AND REPRESENTS THAT ALL PRODUCTS WILL BE FREE FROM LATENT DEFECTS DUE TO MANUFACTURING FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF INVOICE ISSUED BY DERMAZONE. THE FOREGOING WARRANTY EXTENDS ONLY TO CUSTOMER, AND DERMAZONE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DERMAZONE (a) MAKES NO WARRANTY WHATSOEVER AND EXTENDS NO WARRANTY OF ANY KIND REGARDING PRODUCTS, WHETHER EXPRESS OR IMPLIED; (b) EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AND (c) ASSUMES NO RESPONSIBILITY WHATSOEVER WITH RESPECT TO THE USE, SALE OR OTHER DISPOSITION BY CUSTOMER, ITS VENDEES OR OTHER TRANSFEREES OF PRODUCTS.
11. What Is Not Covered. DERMAZONE’S WARRANTY FROM LATENT DEFECTS DUE TO MANUFACTURING FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF INVOICE ISSUED BY DERMAZONE DOES NOT COVER: (a) ANY PRODUCT WHICH, IN DERMAZONE’S SOLE JUDGMENT, HAS BEEN SUBJECTED TO ABUSE, ACCIDENT, ALTERATION, MODIFICATION, TAMPERING, NEGLIGENCE, MISUSE, OR LACK OF PROPER CARE IN HANDLING AND STORAGE; (b) SHIPPING COSTS; OR (c) DAMAGE OCCURRING IN SHIPMENT OR DUE TO ANY CAUSE OUTSIDE OF DERMAZONE’S REASONABLE CONTROL.
12. Limitations on Liability. IN NO EVENT SHALL DERMAZONE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST BUSINESS OPPORTUNITY OR SIMILAR DAMAGES WHICH MAY ARISE, IN WHOLE OR IN PART, FROM OR IN CONNECTION WITH ANY PRODUCT OR THE NON-DELIVERY OF ANY PRODUCT, EVEN IF DERMAZONE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL ANY REMEDY OR RECOVERY BY CUSTOMER EXCEED THE COST OF THE PRODUCTS WHICH GAVE RISE TO SUCH DAMAGES.
13. Enforceability/Severability. If any provision of this Agreement shall be held void, voidable, invalid or inoperative, the remaining provisions of this Agreement shall remain in full force and effect.
However, if such void, voidable, invalid or inoperative provision is a material term or condition of this Agreement, the Parties shall supply a substitute provision, negotiated in good faith, which comes closest to their original intent.
14. Waiver. No provision of these Terms and Conditions shall be deemed to have been waived by any act or acquiescence on the part of DERMAZONE, it being understood that waiver may only occur by an instrument in writing signed by an authorized officer of DERMAZONE. No waiver of any provision by DERMAZONE shall constitute a waiver of any other provision or of the same provision on another occasion.
15. Cumulative Remedies. All rights and remedies of DERMAZONE, whether at law or in equity, shall be cumulative and none of them shall be in limitation of any other right or remedy.
16. Governing Law. These Terms and Conditions, all invoices, correspondence and other documents exchanged between DERMAZONE and CUSTOMER, and any dispute or controversy arising out of or related to any of the foregoing and/or the relationship between DERMAZONE and CUSTOMER established herein (collectively, “Claims”) shall be governed by and construed, interpreted and resolved in accordance with the laws of the State of Florida without regard to its choice of law provisions; provided, however, that any procedural or substantive Claim conflicting with or falling under the exclusive jurisdiction of United States federal law shall be governed by, and construed, interpreted and resolved in accordance with United States federal law without regard to its choice of law provisions. In addition, CUSTOMER expressly disclaims any applicability of the United Nations Convention International Sale of Goods (CISG). All Claims shall be submitted exclusively to the federal and state courts of competent jurisdiction located in the county in which DERMAZONE has its principal place of business at the time such Claim is filed, and both DERMAZONE and CUSTOMER hereby unconditionally and irrevocably consent and submit to such exclusive jurisdiction and venue, and waive any objection they may now or hereafter have with respect thereto.
20. Modifications and Amendments. DERMAZONE reserves the right to modify or amend these Terms and Conditions from time to time in DERMAZONE's sole discretion, provided that any such modification or amendment by DERMAZONE shall be binding upon CUSTOMER only for orders placed by CUSTOMER after the Effective Date indicated above.
21. Headings. The section headings in these Terms and Conditions are solely for the convenience of the Parties and have no legal or contractual significance.