Terms and Conditions of Sale
1. Entire Agreement. These terms and conditions (this “Agreement”) apply to all of your purchases from Evolus and may NOT be altered, supplemented, or amended by you through the use of any other document(s). Any attempt to alter, supplement, or amend this Agreement, or to enter an order for product(s) which is (are) subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both you and Evolus. This Agreement does not supersede, waive or otherwise affect any security agreements, guarantees, credit applications or other agreements between you and Evolus (the “Other Agreements”), which Other Agreements shall remain in full force and effect and shall be applicable to any and all purchases made from Evolus. The Other Agreements may not be amended except by a writing signed by each party.
2. Acceptance. By purchasing products and/or services from Evolus, you agree to be bound by and accept the terms of this Agreement (in the absence of an earlier signed formal written agreement between you and Evolus governing your purchases). Orders are not binding upon Evolus until accepted by Evolus. You will be required to submit a completed new account package and other financial documentation as required prior to ordering and receiving products. Extension of credit is subject to each account’s credit worthiness, as determined by Evolus in its sole discretion. Verification of a valid state medical license number and matching ship-to address is required. Evolus reserves the right to refuse acceptance of orders, in its sole discretion. Evolus will indicate its acceptance of an order by issuing an invoice or by shipping the ordered items to you.
3. Pricing and Payment Terms. Evolus reserves the right, without prior notification, to implement price changes and to limit purchases at any time. Evolus reserves the right to price backorders, unfilled current orders, and holding orders at the price prevailing at the time the shipment is made. All payments shall be made in full, in good funds, and in accordance with the payment terms on your invoice, via any payment forms acceptable to Evolus. Evolus reserves the right to require payment in advance of shipment. Until product is paid for in full, Evolus retains, and you hereby grant Evolus, a security interest in the ordered product. Evolus may assess an interest charge calculated at the rate of 1.5% per month (or the maximum rate allowed by law, if such rate is less than 1.5% per month) on any amount not paid to Evolus when due. Failure or delay by Evolus to invoice for any such service charge will not waive Evolus’ right to receive the same. In the event of default in payments on any invoices, Evolus shall have the right to declare all invoices immediately due and payable. You agree to pay all out -of-pocket expenses, including attorneys’ fees and costs, incurred by Evolus to collect any amounts due from you or to otherwise enforce any of the terms stated herein. Evolus may exercise a right of set -off against any and all amounts due to you. Evolus shall be deemed a single creditor for purposes of this section. You agree to pay all applicable taxes as part of your purchase.
4. Sales Tax. Evolus is required by law to collect sales tax in certain jurisdictions. If appropriate, Evolus will add the proper amount of tax (state, and, if any, local and transit) to your order.
5. Freight. Evolus will determine the time, route and carrier for all shipments. Evolus will use commercially reasonable efforts to meet stated ship dates. However, Evolus assumes no liability for additional costs or damages resulting from late deliveries.
6. Transfer of Title. Title to products purchased hereunder transfers from Evolus to you upon receipt and acceptance of the product by you or your agent (FOB Destination). The sale of goods covered by this Agreement shall not confer upon you any license to manufacture under any patents or proprietary rights owned or controlled by Evolus, its subsidiaries, affiliates, or suppliers. Evolus products may not be exported from the United States. You agree that your purchase of Evolus products is only for direct sale to patients, and you will not re-sell products to other healthcare professionals or any other third parties without the prior written consent of Evolus.
7. Returns. Returns will be evaluated in accordance with the Evolus Returned Goods Policy, which Evolus may revise from time to time in its sole discretion.
8. Shortage. All shipments are checked before being packed. Before reporting shortages in shipment, examine packing carefully. No claim for shortages, damages, or incorrect shipments will be allowed unless made within three (3) business days from receipt of goods. All claims for shortages, damages or incorrect shipments must be reported to Evolus Customer Service Department at 1-(877)-EVOLUS1. Failure to so notify Evolus within such period shall be deemed a waiver of all such claims.
9. Force Majeure. Evolus shall not be liable for any delays in making delivery where occasioned by strikes, differences with workers, or any causes beyond the control of Evolus, including but not limited to, fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, manufacturing delays or problems, or transportation. Where delays or failures of delivery are caused by labor difficulties, Evolus shall not be obligated to seek or obtain any settlement which, in Evolus’ sole judgment, is not in Evolus’ best interest.
10. Use of Products. You warrant that you have all required governmental licenses, permits and approvals required to purchase, use and/or store the products you purchase from Evolus and that all your purchases from Evolus are for your “own use”, as such term is defined in judicial or legislative interpretation. Evolus may immediately terminate your ability to make purchases if Evolus determines that you or any facility owned, operated, or managed by you, directly or indirectly, has breached this “own use” limitation. You will comply with all laws, rules and regulations applicable to products purchased hereunder.
11. Adverse Events Reporting. Customer shall notify Evolus within twenty-four (24) hours of any complaints resulting from the use of the Products. To report side effects associated with use of an Evolus product, please call 1-877-386-5871.
12. Warranty. Evolus warrants that the Product conforms to its published specifications. Customer’s sole remedy for a breach of this warranty shall be for Evolus to, at Evolus’s option, replace the non-conforming Product or refund to the Customer the amounts paid for the non-conforming product EXCEPT AS SET FORTH IN THIS SECTION, THERE ARE NO EXPRESSED OR IMPLIED WARRANTIES UNDER THIS AGREEMENT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. EVOLUS’ SOLE OBLIGATION AND YOUR EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY WILL BE, AT EVOLUS’ OPTION, TO REPLACE THE PRODUCT OR REFUND THE PURCHASE PRICE.
13. Limitation of Liability. IN NO EVENT SHALL EVOLUS BE LIABLE WHETHER IN CONTRACT OR TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OR LOSSES OF ANY NATURE OR FOR LOST REVENUE, LOST PROFITS OR LOST BUSINESS ARISING OUT OF YOUR PURCHASES FROM EVOLUS OR THE USE OF PRODUCTS OR EVOLUS’ FAILURE TO DELIVER ORDERED PRODUCTS. IN NO EVENT SHALL EVOLUS’ LIABILITY FOR ANY ORDER UNDER THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY YOU FOR SUCH ORDER.
14. Indemnification. You agree to fully defend, indemnify, and hold harmless Evolus, its partners, their successors and assigns, and each of their past and present directors, officers, employees and agents, jointly and severally, from and against any and all losses, damages, liabilities, and claims of any kind, including, without limitation, reasonable attorney’s fees and expenses, arising from: (a) any use of Evolus products by you other than in accordance with such product’s labeling, (b) any violations of applicable laws or regulations, or (c) any wrongful or negligent acts or omissions of you in purchasing, selling, administering or using Evolus products, including, but not limited to, your failure to charge applicable sales, use, or equivalent taxes when selling such products, your failure to maintain a valid license or certification with the applicable entity that allows you to purchase, sell, or use such products or practice medicine, or any other acts or omissions.
15. Choice of Law. This Agreement and all communications, disputes and performance under this Agreement shall be governed by the laws of the State of California, without regard to its conflicts of law principles that would require the application of the laws of a different jurisdiction. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement. All disputes, claims or controversies regarding any matter under this Agreement arising between the parties which they are unable to resolve shall (a) be brought by a party in their individual capacity, and not as a plaintiff or class members in any purported class or representative proceeding and (b) be submitted to final and binding arbitration before JAMS (formerly Judicial Arbitration and Mediation Services), or its successor. Either party may commence the arbitration process called for in this Section by filing a written demand for arbitration with JAMS, with a copy to the other party. The arbitration will be conducted in accordance with the provisions of JAMS’ Comprehensive Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The parties will cooperate with JAMS and with one another in selecting a single arbitrator from JAMS’ panel of neutrals, and in scheduling the arbitration proceedings, which shall take place in Orange County, California in the English Language. The parties covenant that they will participate in the arbitration in good faith, and that they will share equally in its costs. The provisions of this Section may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered.
16. Confidentiality. You agree that all information provided in your order and your purchase terms including price and this Agreement are confidential and may not be disclosed to third parties.
17. Assignment. You may not assign this agreement or delegate any rights or obligations hereunder.
18. No Waiver. Failure to enforce a right does not waive it.