Aesthetics-Exchange Inc. ePlatform Listing Agreement for Suppliers
BY CLICKING THE CHECK BOX ON THE REGISTRATION PAGE THAT LINKED TO THIS PAGE, SUPPLIERS AGREE THAT THIS AGREEMENT IS BINDING BETWEEN THE REGISTERING ENTITY AND AESTHETICS EXCHANGE
This Agreement (“Agreement”) is entered into as of the date of Supplier registration per the online form on www.aesthetics-exchange.com (“Effective Date”) by and between: REGISTERING ENTITY, (the “Company”); and Aesthetics-Exchange Inc, (the “Exchange”), a company organized under the laws of the State of Delaware, with its principal place of business at Park City, Utah., individually referred to as a “Party” or collectively as the “Parties”.
Whereas, Supplier wishes to list products on the Exchange eCommerce Platform (“ePlatform”), and Whereas, Exchange wishes to host Supplier products on Platform.
Now, therefore, the Parties agree:
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1. DEFINITIONS.
1.1 For purposes of this Agreement, the following words, terms and phrases when used herein with an initial capital letter, shall have the meanings assigned to them under this clause unless expressly stated otherwise:
(a) Governmental Authority shall mean any local, national, governmental authority, regulatory body government, administrative agency or commission, and shall also include any quasi-governmental authority or agency with regulatory authority over any activities contemplated in this Agreement.
(b) Product shall mean the medical aesthetic equipment and other products sold by the Company by the Exchange’s exchange platform as listed out in Exhibit A.
(c) Term shall mean the agreed term of this Agreement as stipulated in Clause 10.1.
(d) Territory shall mean the geographical area of United State of America (USA) and its territories and Canada.
(e) Trademark shall mean the trademarks, trade names, logos or service marks associated with the Company or its Products.
2. AUTHORIZATION OF EXCHANGE
2.1 Authorization. Subject to the terms and conditions set forth herein, the Company hereby authorizes Exchange, and Exchange hereby accepts such authorization, to list for sale on the Exchange’s platform the Products in the Territory during the Term of this Agreement. The Exchange functions as a fee-per-transaction sales agent representing the Company’s Products and is authorized to process the sale of the Products for the Company for a fee.
2.2 Sub-Exchange(s). Exchange may, at its sole discretion, authorize the listing of the Products with third Parties, such as, but not limited to, trade shows and advertising programs, to promote the Products within the Territory during the Term. The Exchange shall ensure that the third parties are bound by the terms and conditions that is consistent with the Exchange’s obligations and warranties under this Agreement.
2.3 Territorial Responsibility. Exchange may endeavor to promote, market, advertise the Products in the Territory, and the Exchange shall execute its obligations under this Agreement without violating any applicable law and regulations. Exchange shall not advertise, promote, or seek customers for Products outside the Territory without the prior written consent of the Company.
2.4 Independent Contractors. The relationship established by this Agreement between the Exchange and the Company is that of an independent contractor, and nothing contained in this Agreement shall be construed so that Exchange will be deemed to be an employee, Exchange, joint venture, co-owner or otherwise a participant in a common undertaking.
3. GENERAL OBLIGATIONS OF EXCHANGE
3.1 Exchange Obligations.
The Exchange shall have the following specific obligations with respect to the marketing and sales of the Products:
(a) To offer to extend the Company’s promotion, marketing, sale and/or distribution of the Products in the Territory per a separate marketing agreement.
(b) To respond promptly to all inquiries from customers, including any complaints and reports of adverse events and other Product incidents, and to advise the Company promptly of all such matters.
(c) To investigate diligently all reasonable leads with respect to potential customers in the Territory referred to it by any source, including the Company, and to provide adequate contact with existing and potential customers within the Territory on a regular basis; and
(d) To provided staff and independent contractors who are trained and qualified in sales and technical support dedicated to the sale of the Products, and to make such personnel available for orientation and training referred to in Clause 4.2 at the prior request of the Company.
3.2 Advertising. The Exchange may promote the sale of the Products throughout the Territory through advertising medium including but not limited to professional magazines, internet media, eCommerce stores, mass media, TV commercial or other media, active communication activities, participation in local exhibitions and/or tradeshows, and organizing regular or irregular seminars. The Exchange shall strictly follow and comply with all the relevant laws and regulations for advertising in the Territory. Exchange shall defend, indemnify and hold harmless the Company from all claims arising in connection with any advertising materials created or prepared by or on behalf of Exchange.
3.3 Customer Support. The Exchange agrees to offer customer support services to all customers using the Products in the Territory, including the customers who did not purchase the Product from Exchange. Without limiting the generality hereof, the Exchange shall have the following obligations in the Territory:
(a) to enable Company training of personnel and customers with respect to the use and handling of the Products, where such training is performed only by properly trained personnel contracted through the Exchange.
(b) to establish, maintain and operate a customer service function to help and support customers promptly when a problem occurs within three (3) months from the Effective Date.
(c) to promptly attend to and resolve any customer complaints concerning the Products, and where required, promptly notify the Company of such complaint and cooperate with the Company in dealing with such complaints; and
3.4 Expenses. Except as otherwise expressly provided herein, the Exchange shall assume full responsibility for all costs and expenses which it incurs in carrying out its obligations under this Agreement.
3.5 Representations and Warranties. Exchange shall not make any false or misleading representations to customers or others regarding Exchange, the Company or the Products. Exchange shall not make any representations, warranties or guarantees with respect to the specifications, features or capabilities of the Products that are not consistent with the Company's documentation accompanying the Products or the Company's literature describing the Products, including the limited warranty and disclaimers set forth in this Agreement.
3.6 Packing and Labelling. To the fullest extent permitted by law, the Exchange shall not package or label any Products, or alter any Products, package or label in connection with any Product, except as specifically authorized in writing by the Company or as provided by the Company.
3.7 Tracking of Products. Insofar as reasonably practicable, Exchange shall keep adequate records of the Products sold to enable tracking of the Products.
3.8 Recall. If a recall should be made for a Product that is illegal in the Territory or in violation of one or more regulations in the Territory, Exchange shall notify the Company immediately and shall not take any actions in relation to the recall without consulting the Company first. The Company shall be responsible for analysis on the cause of the recall, establishing corrective and preventive measures, and reporting the result (“Final Result”) to the Exchange, compensating the exchange for any costs incurred.
4. GENERAL OBLIGATIONS OF THE COMPANY
4.1 Information, Materials: Clinical Data. The Company shall provide Exchange with electronic files of:
(a) marketing and technical information concerning the Products,
(b) the Company's brochures for each Product,
(c) high-resolution images per those in product brochures and on Company website,
d) instructional materials and sales literature pursuant to, in the case of brochures and sales literature, and
(e) publicly available clinical data and other Product data, with all such information, literature, material and data in the English language.
4.2 Training by the Company. From time to time, the Exchange shall receive training of service technicians and clinical trainers as necessary regarding applications of Products (including cautions and warnings), principles of Products and effects of Products, at Company’s sole cost and expense. At the Company’s discretion, this may including any travel expenses, lodging and food costs during the training period. For avoidance of doubt, the costs and expenses of the Company's trainers shall be borne by the Company. The number of training sessions and the number of Exchange trainees shall be agreed between the Parties prior to the training. Upon completion, the trainees shall receive a certificate which authorizes the recipients to train others in relation to the Products.
4.3 Regulatory Approval. If any additional approvals, licenses and/or permission in any nature are necessary for the Exchange to perform the obligations set out in this Agreement, the Exchange shall use its best efforts to obtain such additional approvals, licenses and/or permission as soon as possible without delay. The Company agrees to support the Exchange in obtaining those approvals, licenses and permission.
4.4 Assurance of Supply. If the Company decides, at its sole and absolute discretion, to discontinue the listing of any Product, the Company shall notify Exchange at least three (3) months in advance (the “Notice”), unless safety or other regulatory requirements of any Governmental Authority require otherwise. The Exchange may continue to place orders for delivery pursuant to the terms and conditions set forth in Clause 5 below for a period commencing on the date of the Notice up until the date specified in the Notice, unless safety or other regulatory requirements of any Governmental Authority require otherwise.
5. TERMS OF PURCHASES
5.1 Terms and Conditions. All purchases of Products via the Exchange from the Company during the Term shall be subject to the terms and conditions of this Agreement. All Purchases of the Products are considered as direct from Company to end user via the Exchange’s platform and process.
5.2 Purchase Orders. All orders for Products submitted by Exchange shall be initiated by a submitting a purchase order ("Purchase Order") to the Company. The Purchase Order shall at all times include
(a) an identification number,
(b) quantities ordered,
(c) costs,
(d) requested delivery dates
(e) shipping instructions for the Product ordered, and
(f) all customer information.
5.3 Acceptance of Purchase Order. No Purchase Order shall be binding upon the Company until accepted in writing by the Company, but the acceptance shall not be unreasonably withheld or delayed. Within two (2) working days after receipt of a Purchase Order, the Company shall notify the Exchange of its acceptance or rejection of a Purchase Order as a whole. No partial or excess shipment of an order shall constitute the acceptance of any part of or the entire Purchase Order.
5.4 Payment Terms. Payments for all Purchase Orders shall be 100% telegraphic transfer (T/T) in advance, less the Exchange fee and affiliated product and service costs related to the sale of the Product. Accepted currency of the payment shall be United States Dollars only from an account with the name of the Exchange, unless otherwise expressly agreed by the Company. In the event that Exchange fails to satisfy its payment obligation for a Purchase Order by the requested shipping date (“Payment Due Date”), the Company will have the right to hold off on all shipping arrangement until the payment is made in full.
5.5 Pricing. Exchange will offer and sell the Products at the price as determined by the Company in its sole discretion whereas the effective sale of a Product is between the end user and the Company.
5.6 Product placement with key opinion leaders is a key aspect of marketing in the US to promote word-of-mouth sales. The Exchange can place/sell products to select opinion leaders at a product cost that is the Supplier transfer price.
5.7 Shipping. All Products shall be delivered [FCA] Incoterms 2010, and risk of loss or damage to the Products shall pass to the Company accordingly. The delivery location shall be determined by the Exchange. It is Exchange's choice to have insurance for coverage in case of damage to the product during its delivery.
5.8 Product Changes. The Company may, at its discretion and without liability to the Exchange,
(a) improve performance specifications for any Product;
(b) discontinue manufacturing any Product;
(c) discontinue developing any new product, whether publicly announced or not; or
(d) start manufacturing and selling new products that may render any Product obsolete. If changes are required due to safety or regulatory requirements, the Company will notify the Exchange in writing at least thirty (30) days before the changes take effect. The Company will fulfill all accepted Purchase Orders for altered or discontinued Products that have commenced manufacturing and commercial deliveries, but has no obligation to do so if the requested delivery date in the Purchase Order is after the effective date of the change.
5.9 Improvements. Any incremental improvements to the existing Product shall be deemed to be a Product subject to this Agreement. In addition, the Exchange shall have a right of first refusal to distribute subsequent generations of the existing Product in the Territory. The Parties agree and undertake to execute an amendment to this Agreement by simple form adding any Products to the list of Products listed on COMPANY PRODUCT PAGE ON A-E
6. ACCEPTANCE AND REJECTION OF PRODUCTS
6.1 Acceptance. The Exchange shall inspect the Products within fourteen (14) working days after arrival at the designated delivery place (the Inspection Period). If the shipment is not in good condition or does not meet quality standards, the Exchange will report this to the Company within the Inspection Period and provide supporting evidence. If the evidence shows the Company is responsible for any deficiency, the Company shall promptly take necessary measures at its cost to ensure the Products meet quality standards. If the Exchange fails to submit such a report within the Inspection Period, it will be deemed that the Products have arrived in good condition.
6.2 Rejection. The Exchange shall be entitled to fully reject a Product if: (a) the delivered Product is not the product ordered in the Purchase Order, (b) the delivered Product is physically damaged, or (c) the delivered Product does not mechanically operate the way it is intended. To reject a Product, the Exchange shall notify the Company in writing within the Inspection Period, setting out the reasons for the rejection and with sufficient evidence in support of its rejection claim. Unless the Company communicates otherwise with the Exchange, the Exchange shall arrange for the return of the rejected Product back to the Company, and the Company shall bear the cost of the delivery of the rejected Product back to the Company.
7. PRODUCT WARRANTY
7.1 The Company warrants that the Products shall be free from defects in material and workmanship at the time of shipment.
7.2 The period of the warranty for the Products and the warranty details of each product shall be in accordance with the Company's Service Warranty Regulation as set forth in Exhibit C. All service agreement and maintenance activity details shall be in accordance with the Service Warranty Regulation.
8. INTELLECTUAL PROPERTY
8.1 Intellectual Property Rights. As between the Parties, any and all copyright, trademark, trade name, trade dress, patent, utility model, design patent, know-how, trade secret, proprietary information, hardware configuration, computer software program or application, circuit or logic design, other intellectual or industrial property rights, and applications and registrations therefor in any jurisdiction in the world (collectively, “IP Rights”) in and to the Products are owned exclusively by Company or its affiliates and licensors, and the Exchange agrees not to claim or assert title to or ownership of any such IP Rights. The Exchange shall not do (or permit any third party to do) anything which would or might invalidate or be inconsistent with any IP Right of Company or its affiliates and licensors and shall assist the Company in maintaining the validity and enforceability of such IP Rights.
8.2 License. During the Term of this Agreement, the Exchange shall have a non-transferable right to indicate to the public that it is an authorized Exchange of the Products purchased hereunder and to advertise (within the Territory) such Products under the Trademarks, provided always that such Trademarks are used by the Exchange in accordance with the Company's standards, specifications, and instructions, but in no event beyond the Term of this Agreement.
8.3 Registration. The Company, in its sole discretion, shall determine whether to register the Trademarks in the Territory. In addition, in the event the Company believes that it is advisable to affect any filing or obtain any governmental approval or sanction for the use by the Exchange of any of the Trademarks pursuant to this Agreement, the Parties shall fully cooperate to do so. All expenses relating to the registration of the Trademarks in the Territory, as well as the making of any filings or obtaining any governmental approvals for the use by Exchange of the Trademarks shall be borne by the Company. Exchange shall not have the right to file any trademark applications for the Company or for the Products.
8.4 Markings. The Exchange shall not, without the prior written consent of the Company, remove or alter any patent numbers, trade names, Trademarks, notices, serial numbers, labels, tags or other identifying marks, symbols or legends affixed to any Products or containers or packages.
8.5 Infringements. Exchange shall promptly notify the Company of any use by any third party of the Trademarks or any similar marks which may constitute an infringement or passing off of the Trademarks. The Company reserves the right in its sole discretion to
institute any proceedings against such third party infringers and Exchange shall refrain from taking any action without the Company’s prior written consent. Exchange agrees to reasonably cooperate with the Company in any action taken by the Company against such third parties, provided that all costs and expenses of such action shall be borne by the Company and all damages which may be awarded or agreed upon in settlement of such action shall accrue to the Company.
8.6 Termination of Use. The Exchange acknowledges the proprietary rights of the Company and/or its affiliates in and to the Trademarks and any trade names regularly applied by the Company to the Products, and the Exchange hereby waives in favor of the Company all rights to the Trademarks.
9. CONFIDENTIALITY
9.1 Confidentiality. Each Party hereto shall keep in strict confidence and shall ensure that its employees, officers and Exchanges shall keep in strict confidence all commercial and technical information belonging to the other Party including, but not limited to, the Exchange's customer lists, pricing, and knowledge or data (the “Confidential Information”) during the Term of this Agreement. Without the prior written consent of other Party, neither Party shall at any time disclose any Confidential Information to any third party. Where it is necessary for the Parties to disclose certain Confidential Information to a third party, including its affiliates, the disclosure will be limited to the minimum extent required to carry out their respective duties and responsibilities under this Agreement, and will be on a need-to-know basis only. At all times, any disclosure of Confidential Information a third party shall be subject to a confidentiality obligation no less strict than as set out in this Agreement.
9.2 Exceptions. This provision shall not apply to information which:
(a) becomes public knowledge through no fault of the receiving Party;
(b) is required to be disclosed by law, governmental order, rule or regulation;
(c) was independently developed by the other Party or was already in the possession of the other Party and not subject to an obligation of confidentiality; or
(d) is received from a third party which is under no obligation to maintain confidentiality of such information.
10. TERM AND TERMINATION
10.1 Term. Unless sooner terminated in accordance with this Clause 11 or any other termination provision contained elsewhere in this Agreement, this Agreement shall continue in force indefinitely commencing on the Effective Date (the “Term”). without creating any specific obligation for either Party to continue this Agreement.
10.2 Termination. In addition to any termination provisions contained elsewhere in this Agreement, the Company and Exchange shall each have the right to terminate this Agreement at any time by giving a thirty (30) days’ notice in writing to the other Party.
10.3 Rights and Obligations on Termination. In the event of termination of this Agreement for any reason, the Parties shall have the following rights and obligations:
(a) Termination of this Agreement shall not release either Party from the obligation to make payment of all amounts then or thereafter due and payable.
(b) The Company shall not cancel any received Purchase Orders which provide for delivery after the effective date of termination but have not yet been shipped by the Company.
(c) Exchange shall be permitted to sell its existing inventory of Products.
(d) Effective upon the termination of this Agreement, each Party shall cease to use the other Party's Trademarks.
(e) The Company will supply accessories, parts, and consumable items to the Exchange to support the installed base of customers for up to 5 years following termination of the agreement.
11. LIABILITY
11.1 Indemnification. Each Party agrees to indemnify, defend, and hold harmless the other party, its affiliates, officers, directors, and employees from and against any claims, liabilities, damages, or expenses arising out of the indemnifying Party's breach of this agreement or its negligent or wrongful acts.
11.2 Limitations. Unless expressly stipulated otherwise in the Agreement, neither Party shall be liable for any indirect, incidental, consequential, punitive, special or exemplary damages, or loss of goodwill, revenue or anticipated profits or business interruption.
12. FORCE MAJEURE
12.1 Neither Party shall be liable for delay or failure in the performance of any of its obligations under this Agreement if and to the extent such delay or failure is due to circumstances beyond the reasonable control of such Party, which circumstances shall be limited to fires, floods, explosions, accidents, acts of God, war, riot, strike, lockout or other concerted acts of workers, and acts of Governmental Authorities; provided however, that the Party claiming that a force majeure has affected its performance shall give notice to the other Party within five (5) days of becoming aware of the occurrence of force majeure, giving full particulars of the cause or event and the date of first occurrence thereof. The Party claiming force majeure shall use its best efforts to mitigate the impact or prevent the cause to continue performing its obligations under this Agreement as soon as possible.
13. GENERAL PROVISIONS
13.1 Governing Law, Jurisdiction and Arbitration. This Agreement shall be interpreted and governed by the laws of the State of Utah. All disputes, or claims, arising in connection with this Agreement, shall be attempted to be settled amicably by third party mediator. Where they cannot be settled amicably, they’ll be finally settled under the arbitration rules of the American Arbitration Association.
13.2 Entire Agreement. This Agreement, including all exhibits attached hereto, constitutes
the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all previous agreements by and between the Parties as well as all proposals, oral or written, and all negotiations, conversations or discussions heretofore had between the Parties related hereto. The Exchange and the Company each acknowledge that it has not been induced to enter into this Agreement by any representations or statements, oral or written, not expressly contained herein. Neither Party will accept any claims (including, but not limited to, price, terms of payment, and rights) that do not exist in this Agreement.
13.3 Modification. No modification or amendment to any provision of, nor any consent required by, this Agreement, nor any consent to any departure by either Party there from, shall in any event be effective unless the same shall be in writing and signed by the other Party and then such modification, amendment, or consent shall be effective only in the specific instance and for the purpose for which it is given. No notice to or demand on either Party in any case shall entitle such Party to any other or further notice or demand in the same, similar or other circumstances.
13.4 No Waiver. To the fullest extent permitted by law, no failure or delay by a Party to insist upon the strict performance of any term, condition, covenant or agreement of this Agreement or any other agreement referred to herein, or to exercise any right, power or remedy hereunder or there under or consequent upon a breach hereof or thereof, shall constitute a waiver of any such term, condition, covenant, agreement, right, power or remedy or of any such breach, or preclude such Party from exercising any such right, power, or remedy at any later time or times. Each Party hereby acknowledges and agrees that any provision contained in this Agreement which refers to the “approval” or "consent" of the other Party (or words having similar effect), shall mean the approval or consent (or similar act) of the other Party, which shall be granted in writing in order to be effective under this Agreement, and which may be provided or withheld in the sole and absolute discretion of the other Party (unless the applicable provision expressly provides otherwise).
13.5 Assignment. The Parties agree that their rights and obligations under this Agreement may not be transferred or assigned, directly or indirectly, without the prior written consent of the other Party. Any prohibited assignment shall be null and void.
13.6 Severability. In the event that any of the terms of this Agreement are in conflict with any rule of law or statutory provision or are otherwise unenforceable under the laws or regulations of any Governmental Authority or subdivision thereof, such terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms of this Agreement and this Agreement shall continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreement.
13.7 Counterparts. This Agreement shall be executed in two or more counterparts in the English language, and each such counterpart shall be deemed an original hereof. In case of any conflict between the English version and any translated version of this Agreement, the English version shall govern. All correspondence, documents and communications of any kind made under this Agreement shall be made in the English language.
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EXHIBIT A: PRODUCT DESCRIPTION ONLINE FORM AND PRICE
To be completed for each Product on the Product Description Form. Electronic files of logos, brochures, manuals, and other marketing collateral to be uploaded via the Form and will include the following:
Product name
Description (laser, RF, …)
Applications
Suggested Price* (USD)
Warranty term (months)^
Estimated delivery (days)
Size of shipping wxdxh (cm)
Weight of shipping (Kg)
Level of Training required (hours)
510K number
Installation level □ Customer □ Field Technician □ Clinical Trainer
Consumable parts and warranty
*All services: warranty, installation, initial training and shipping costs to be billed to Company and should be included in the Suggested price.
^Warranty term to be specified if it exceeds 1-year. The Exchange minimum Warranty is 1-year.
Estimated costs that will be passed on to Company when applicable:
Installation/warranty repair: on-site half-day $600-$700; full-day $1100, plus travel costs if applicable.
• Customer self-installation – no cost
Clinical training; video training $350-$600, on-site: $1100 plus travel costs if applicable.
Shipping: variable depending on size, weight and delivery time.
Each Product shall be delivered with an Operations Manual or necessary instructions as required by the FDA.
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EXHIBIT B: EXCHANGE TRANSACTION FEE
The Exchange’s transaction fee for each sale is: 15% of the first $25,000, 13% of $25,000 to $50,000, and 9% thereafter.
For example, a product sale of $75,000 provides a fee of $9,250 (($9,250 = (15% x $25,000) + (13% x $25,000) + (9% x $25,000)). The transaction fee applies to the total product sale price, including additional items and services.
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EXHIBIT C: REQURIED PRODUCT WARRANTIES
1. Product Manufacturers’ Warranty for aesthetic devices shall be 1-year from the date of delivery to the customer.
2. Each part and consumables shall have a warranty specified by the Company at the time of sale.
3. Topicals and other products should have an expiration date indicated on the item packaging and on the item itself.
4. Warranty and service & repair-related Obligations of Company:
a. Company shall provide replacement parts to Exchange – or its nominated contractor - for all products or items.
b. Company shall replace the products if there are any serious defects in the products within ‘14 days’ of determining the defect.
c. Company shall provide service training or support to Exchange – or its nominated contractor - upon request.
d. The Company will supply special measuring instruments or tools that are recommended by Company to inspect the products and parts, and should follow the instruction suggested by Company.
5. Warranty and service & repair-related Obligations of Exchange
a. Exchange is obligated to assign the service and repair for all products which are purchased from Company to a suitable contractor.
b. Exchange shall return defected parts to the Company within ’15 days’ of receipt of parts.
c. Exchange shall report to Company if there are any serious defects in the replacement products or parts within ‘14 days’ of receipt of parts.
