Acknowledged and Agreed:
TIZO DISPENSING PRACTICE AGREEMENT
Fallien Cosmeceuticals, Ltd. dba Fallene, Ltd. (”Supplier”) manufactures and distributes U.S. Food and Drug Administration (FDA) regulated, over the counter (OTC) drug sunscreens and skincare products (”Products”) under the TIZO® and SOLAR PROTECTION FORMULA® trademarks (”Supplier’s Marks”). The Products are designed for sale through licensed medical and licensed aesthetic practices (”Account”) exclusively. As an official Dispensing Practice, you agree with the following terms:
1. Account agrees, represents and promises that all Products purchased from Supplier will be used
a.) Services performed on Account’s premises
b.) Resale only to bona de patients/clients on the Account premises in such limited
quantities as necessary for personal and family use at home.
1.A.) and 1.B.) Collectively is referred to as “Account Use and Resale Restriction”. Account further
represents and agrees that it will not resell Products to any other individual, business, retailer, practice, spa or re-distributor.
2. All Products delivered to Account are delivered in reliance on Account’s representation that they are
solely for Account’s use and resale pursuant to the restrictions in Section 1 above. Any other use or
resale in violation of the Account Use and Resale Restriction is prohibited and is considered to be
“Diversion.” For each order that Account places with Supplier, Account rearms its representation that
the Products are being ordered solely for Account’s use and resale in compliance with the Account Use
and Resale Restriction. Account may not use the Products for any purpose other than the Account Use
and Resale Restriction without written consent from Supplier. If Supplier has any evidence indicating
Account has diverted any Products, Account will be terminated without notice for diverting Products
and will be subject to civil action.
3. Account is prohibited from selling Products or listing pricing electronically, Internet, Television, direct
mail or catalog.
4. Account agrees that as an F.D.A. regulated OTC drug Product, it is required by law to contain one or
more of the following: batch numbers, tracking codes, serial numbers and other codes as applied to all
Products by Supplier. Account may not remove, alter, obliterate, or tamper with any batch numbers,
tracking code, serial numbers or other codes applied to Product, box or pallet of Products and Account
will not agree or conspire with others to do so.
5. Account represents that it currently meets, and during the duration of the term of the Agreement will
continue to meet Supplier’s requirements to be an Account as stated above on the last page of this
Agreement. If Account changes its business operation and no longer meets Supplier’s requirements, as
determined by Supplier, the Agreement shall automatically terminate without notice. Account agrees
to promptly notify Supplier in writing, delivered by certified letter, of any change in Account ability to
satisfy Supplier requirements to be an Account, or of any change in Account ability to comply with the
Practice Use and Resale Restriction on all Products.
6. Account consents to the exclusive jurisdiction of the courts in Philadelphia, PA for all issues arising
under this Agreement. The amount of damages that Fallene, Ltd. would suer as a result of Diversion is
extremely dicult to ascertain. Accordingly, Account agrees that equitable remedies should be granted
to remedy any violation(s) of the Agreement. Account further agrees that “actual damages” for breach of this Agreement will be replaced by liquidated damages in the amount of three times the retail price of each Product that was diverted by Account. In any litigation arising from or related to this Agreement,
the prevailing party shall recover its reasonable attorneys’ fees, whether the claims in the litigation are
based in contract or tort law.
7. Account shall take appropriate steps to ensure that each of its employees and independent contractors are aware of the requirements of this Agreement. Account waives any defense based upon the assertion or evidence that its employee(s), representative(s), or agent(s) were not aware of the
requirements of this Contract/Agreement.
8. Either Supplier or Account may terminate this Agreement immediately by giving written notice.
a) Supplier will immediately cease to sell Products directly or indirectly to Account.
b) Account agrees to immediately cease sales of Products.
The Supplier and Account waive any claim for lost profits arising from the termination of this
Agreement. This Agreement is not assignable by Account. The Agreement is specifically intended to
benefit Fallene, Ltd. and may initiate suit to enforce the terms of this Agreement against Account.
9. During the course of the performance of this Agreement, the parties may disclose certain confidential
information to the other solely to permit the other to perform its obligations under this Agreement.
Each party shall use its best effort to maintain the secrecy of all such confidential information. The
parties shall refrain from using, disclosing, or otherwise exploiting any confidential information for any
purpose not specifically authorized by the parties and consistent with this Agreement. All files, lists,
records, documents, drawings, marketing and ad campaigns that incorporate or refer to any
confidential information shall be returned or destroyed promptly upon termination of this Agreement.
Confidential Information will only be disclosed to those employees of the parties that need such
information to effectively perform their obligation to sell the Products.
10. This Agreement contains the entire understanding of Supplier and Account with respect to the
subject matter hereof, and supersedes, revokes and cancels any and all other inducements,
arrangements, understandings, agreements, representations or warranties, whether oral or written,
between Supplier and Account in connection therewith.
11. This Agreement and the obligations of Supplier and Account hereunder may not be altered, amended or modified in any respect except by a writing duly executed by each.
12. In the event any provision of this Agreement is determined by a court of competent jurisdiction to be
prohibited or unenforcable such provision shall be ineffective only to the extent of such prohibition or
unenforceability, and such prohibition or unenforceability shall not invalidate the balance of such
provision to the extent it is not prohibited or unenforceable, nor invalidate the other provisions hereof,
all of which shall be liberally constructed to effect the intent of this Agreement.
TIZO® DISPENSING PRACTICE INTERNET SALES AGREEMENT
Fallien Cosmeceuticals, Ltd. dba Fallene, Ltd. (“Supplier”) manufactures and distributes U.S. Food and Drug Administration regulated, over the counter drug sunscreens and skincare products (“Products”) under the TIZO® and SOLAR PROTECTION FORMULA® trademarks (“Supplier’s Marks”). The Products are designed for sale through licensed medical and licensed aesthetic practices (“Accounts”) exclusively. This Internet Sales Agreement amends the Dispensing Practice Agreement for
to allow the Dispensing Practice to resell products to bona fide patients/clients on the following Account web site:
As an official Dispensing Practice with Internet Sales privileges, you agree with the following terms:
1. Account agrees, represents and promises that all Products purchased from Supplier will be used exclusively for:
a. Services performed on Account’s premises
b. Resale only to bona fide patients/clients on the Account premises and/or on the web site specified
above in such limited quantities as necessary for personal and family use at home.
1a) and 1b) are collectively referred to as “Account Use and Resale Restriction.” Account further represents and agrees that it will not resell Products to any other individual, business, retailer, practice, spa or re-distributor.
2. Account agrees that the web site specified is identifiably connected to the practice or licensed skincare professional in a manner that is apparent to visitors to the web site.
3. Account agrees that Products are available for purchase on the Account premises. “Online only” accounts will not be approved. New accounts will be required to sign a Dispensing Practice agreement and open as a Dispensing Practice account before being considered for Internet Sales.
4. Account is prohibited from selling Products or listing pricing on any web site other than the web site specified above. Account may not sell or list products on any online marketplace such
as Amazon.com, eBay.com, Jet.com, Sears.com, Walmart.com or any similar marketplace. Sale of products on any web site other than the web site specified above and on page 2 of this agreement will be considered “Diversion” and will result in termination of this agreement.
5. Account agrees that the web site is active/”live” as of the date of this Agreement. Supplier reserves
the right to view web site prior to approving this agreement to determine whether the web site
selling environment supports the high-quality, premium reputation of the Products. Agreement will
not be in effect until approved by Supplier’s authorized representative. Supplier also reserves the
right to review web site from time to time at its sole discretion and may revoke the Internet Sales
Agreement if the web site selling environment has changed and is no longer an appropriate
environment for the Products.
6. If the name or domain name of the account web site changes, Account agrees to notify Supplier
within 5 business days of new site becoming “live” and to request a new Internet Sales Agreement.
Supplier reserves to right to withhold approval at its sole discretion.
7. All other terms of the Dispensing Practice Agreement and mentioned above in this
agreement remain in effect.
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