Skydell Medical - Partner Portal & Product Purchase Agreement
Supply agreement
This supply agreement (“agreement”) is entered on the date stated in the signature
page (“effective date”) by and between the person indicated below (hereinafter, “Customer”),
and Skydell Medical LLC, a limited liability company duly organized in the state of Florida
(“Skydell”); and defines the terms and conditions under which Skydell will sell to customer,
and customer will purchase from Skydell, certain goods and related products.
Recitals
WHEREAS, Skydell provides certain regenerative products for wellness and therapeutic
ends (collectively, “Products”); and
WHEREAS, Customer desires to purchase from Skydell its Products, and Skydell will
provide and deliver the Products to a certain healthcare provider authorized to engage in the
furnishing of such Products to patients/clients (“Provider”); and
Now therefore, in consideration of the mutual covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1.1. Products and compensation. The Products comprise but are not limited to certain
rejuvenation, regenerative, and therapeutic products. Customer has requested the Products
for applications as determined by Customer and/or Provider, for rejuvenation and
regenerative purposes. Skydell will provide the Products as requested and purchased by the
Customer.
1.2. Off-label acknowledgment. Customer acknowledges some or all of the Products may be
“off-label” as defined by the us food and drug administration (“FDA”) and if so, may not be
approved by such governing authority (including the FDA). Customer expressly acknowledges
that it is aware that some or all of the Products, like other medical products that are intended
to treat, cure or prevent disease, generally require FDA approval before they can be
marketed. Professional clinical judgment and expertise are needed in using these products,
including some or all of the Products, for any therapeutic use. Customer shall seek guidance,
instructions, and medical recommendation from any treating physician and/or medical
director, with regards to the convenience and adequacy of the use of the Products, and are
ordering, administering, or utilizing at Customer’s own risk.
Ordering process. Customer will order and purchase the Products directly from Skydell
through the means approved by Skydell.
Shipping and delivery. Skydell will ship the Products to the Customer and/or Provider, as
directed by same, using next day delivery services for use and administration as
appropriate for such Product.
Returns and refunds. No returns of Products are contemplated under this agreement.
Skydell does not issue refunds, credits, or gift cards, for any reason.
Payment for the Products. Customer will pay for the Products directly to Skydell under the
terms and conditions set forth in this agreement.
Risks. Customer is aware of the foreseeable and unforeseen risks that may occur following
the use of the Products. The Customer is aware that the Products are not covered by
insurance. The Customer is aware of and accepts that the Products may not work, may not
be FDA approved, and may have unknown side effects to its use or risks inherent to the
same.
Voluntary consent. The customer voluntarily consents to the acquisition of the
Products.
Physician’s orientation. The customer acknowledges, that if applicable, it is the professional
obligation of any treating physician/clinician to provide the Customer with the information
needed in order to decide whether to consent to the use of the Products. Furthermore,
Skydell does not determine or exert control over the professional and clinical judgment of
any treating physician/clinician or their staff/agents, or exercise control or direction over the
manner or method by which anyone administers the products, or whether such person is an
appropriate candidate for the use of such Products.
Medical orders. The customer understands in its best interests and agrees to follow medical
orders and instructions, including but not limited to medical orders before treatment, during
treatment and post-treatment.
No warranties. It is understood and agreed that the Products may be experimental in nature,
and that Skydell is not making any representations and extends no warranties of any nature or
kind, either express or implied, with respect to the Products. The Products are provided without
any express or implied warranties of merchantability or fitness for a particular purpose.
Customer acknowledges that Skydell has not made any guarantee, warranty, or result promise
with regards to the Products. The Products are not indicated for the treatment of any specific
illness. Skydell does not promise any particular outcome or makes any claim or
representation regarding the Products.
Hold harmless and indemnity. Customer agrees to indemnify and hold harmless Skydell, it’s
officers, agents and employees, contractors, from any loss, cost, damage, expense,
attorney’s fees and liability by reason of bodily injury, property damage, or both of any
nature or kind, arising under or as a result of: (i) the negligence, willful act, or negligent
failure, including acts of professional malpractice related to treating physician’s own
negligence or actions, and/or; (ii) foreseen or unforeseen results and consequences of the
use of the Products. Customer agrees to indemnify and hold Skydell harmless from all
claims, actions, suits, procedures, costs, expenses, damages, and liabilities, including
attorney’s fees brought as a result of Customer’s use or administration to a third-party of the
Products.
Waiver and consent not to sue. The customer releases, waives, discharges, and covenants
not to sue Skydell, their officers, employees, contractors, nurses and agents from liability
from any and all claims including the negligence of Skydell their officers, employees,
contractors, and agents, resulting in personal injury, damages, accidents or illnesses
(including death) arising from, but not limited to, the use of the Products.
Attorney's fees. Pursuant to this Agreement and its provision regarding attorney's fees,
customer hereby agrees to reimburse Skydell monthly all fees incurred by Skydell in its legal
representation because of the actions hereby contemplated. Skydell will send customer a
monthly invoice with the expenses incurred in the previous thirty (days) regarding legal fees.
Dispute resolution. Please read this section carefully — it may significantly affect your legal
rights. It contains procedures for mandatory pre-dispute resolution, binding arbitration, and a
jury trial and class action waiver.
Definitions.
“Dispute” means any claim or controversy between you and Skydell, including but not limited
to any: (1) claims for relief or theories of liability, whether based in contract, tort, fraud,
misrepresentation, statute or otherwise, or that relate to the existence of this agreement; (2)
claims that arose before this or any agreement; (3) claims that may arise in the future,
including claims that may arise after the cancelation or expiration of this agreement; and (4)
claims that are the subject of a putative class action in which no class has been certified.
“dispute” will be given the broadest possible meaning permitted by law. “dispute” does not,
however, include any issues arising from or relating to the arbitrability of any disputes under
this provision or the scope, validity, or enforceability of this arbitration provision.
For purposes of this dispute resolution section, Skydell, and any of its predecessors,
successors, assigns, parents, subsidiaries, affiliates, vendors, and independent contractors,
and each of their officers, directors, employees and agents.
Should you and Skydell (each a “party,” and collectively, the “parties”) have a dispute, and as
a prerequisite for the Customer, or anyone acing on their behalf, to be able to file a claim in
court or any other administrative forum or arbitration, the Customer agree to first engage in an
informal conversation to attempt to resolve the dispute. This informal resolution process must
continue for a minimum period of six (6) months from the date the issue is first raised by either
party. During this period, both parties must act in good faith and make reasonable efforts to
resolve the issue amicably. Only if the Customer is unable to resolve the dispute after six (6)
months of informal discussions, may the Customer commence any formal dispute resolution
proceeding in arbitration, small claims court, or otherwise.
The parties agree that any relevant limitations period and filing fee or other deadlines will be
tolled while the parties engage in this informal dispute resolution process. In connection with
any dispute, you or Skydell must first send written notice to the other party, providing: your
name and contact information (address, telephone number, and email address) if you are
sending the notice, or Skydell’s contact information if Skydell is sending the notice; sufficient
information for you or Skydell to identify any transaction at issue; and a detailed description of
and explanation for (1) the dispute; (2) the nature and basis of any claim; and (3) the nature,
basis, and calculation of the relief sought. Your notice to Skydell must be personally signed by
you (and your attorney if you are represented). Skydell’s notice to you will be personally signed
by an Skydell representative (and Skydell’s attorney if Skydell is represented). Skydell’s notice
to you will be sent to you based on the most recent contact information that you have provided
to Skydell. You and Skydell agree to negotiate in good faith about the dispute, including through
an informal and individualized telephone settlement conference if Skydell requests one in
connection with your notice (at which you agree to appear along with your attorney if you are
represented) or if you request one in connection with Skydell's notice (at which Skydell agrees
to send a representative along with our attorney if we are represented). The parties agree to
participate in good faith in this conference, which will be held at a time convenient for both
parties, and throughout this informal process.
If the sufficiency of a notice or compliance with this informal dispute resolution process is at
issue, it may be decided by a court at either party’s election, and any formal dispute
resolution proceeding shall be stayed pending resolution of the issue. A court shall have
the authority to enforce this condition precedent to arbitration, which includes the power to
enjoin the filing or prosecution of a demand for arbitration.
Any dispute between you and Skydell that is not resolved as set forth above shall be resolved
through binding individual arbitration or small claims court. In arbitration, there is no judge or
jury and there is less discovery and appellate review than in court. If you and Skydell are
unable to resolve the dispute through the mandatory informal dispute resolution process, you
and Skydell unconditionally agree that, except as set forth below, all disputes between you
and Skydell will be resolved entirely through binding individual arbitration, rather than in court,
which include, without limitation, such disputes arising out of or relating to any aspect of the
relationship between you and Skydell, your access or use of the Skydell website or any
Products or services offered by or purchased from Skydell through the Skydell website or
stores, and Skydell's advertising, marketing, and communications.
The sole exceptions to the foregoing requirement to arbitrate are that:
Either party may elect to have individual claims heard in small claims court if those claims
otherwise qualify for small claims court and as long as the matter remains in such court and
is not removed or appealed to a court of general jurisdiction and advances only on an
individual (non-class, non-representative basis); and (2) each party may bring suit in court to
enjoin infringement or other misuse of intellectual property rights.
This dispute resolution section evidences a transaction in interstate commerce, and thus the
federal arbitration act (“FAA”) governs the interpretation and enforcement of this dispute
resolution section. You and Skydell agree that we intend that this dispute resolution section
satisfies the “writing” requirement of the faa.
This mutual arbitration provision shall survive termination of this agreement. By agreeing to
these terms, each party gives up its right to bring and prosecute any disputes in a court of law or
before a jury except as expressly provided herein. You also give up your right to participate in or
bring class actions or representative actions.
Procedures for arbitration. Arbitrations shall be heard and determined by a single arbitrator
and be administered by the American Arbitration Association (“AAA”) pursuant to its
consumer arbitration rules (collectively the “AAA Rules”) as modified by the version of this
arbitration provision that is in effect when notice of a dispute is given. The AAA Rules can be
obtained from the AAA by visiting its website (www.adr.org). If there is a conflict between this
arbitration provision and the rest of this agreement, this arbitration provision will govern. If
there is a conflict between this arbitration provision and the AAA Rules, this arbitration
provision will govern. If the AAA is unavailable or unwilling to administer an arbitration in
accordance with this arbitration provision, you and Skydell will work together in good faith to
agree on (or if necessary petition a court of appropriate jurisdiction to appoint) an arbitration
organization that will do so. Unless you and Skydell agree otherwise, any in-person arbitration
hearing will take place in the county where you reside. To begin an arbitration proceeding,
after satisfying the condition precedent identified above, you or Skydell must (1) send a
verified and personally signed demand for arbitration that describes (a) the nature and basis
of the claims, and (b) the nature and basis of the relief sought, including a detailed calculation
for it; (2) send the signed certification of completion of the process set forth in the informal
dispute resolution process section; and (3) contact the AAA or the applicable court-appointed
arbitration administrator and follow the appropriate procedures to commence the arbitration. If
you or Skydell are represented by an attorney in connection with your or Skydell’s arbitration
demand, you and Skydell agree that any arbitration demand must also be signed by your or
our attorney. By signing the arbitration demand, the attorney certifies to the best of their
information, knowledge, and belief, formed after a reasonable inquiry that: (1) the arbitration
demand is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims or
other legal contentions are warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing new law; and (3) the factual
contentions have evidentiary support or, if specifically so identified, will likely have evidentiary
support after reasonable opportunity for further investigation or discovery. Payment of all
filing, administration and arbitrator fees will be governed by the applicable AAA rules. The
parties shall be responsible for their own attorneys’ fees and costs in arbitration, unless they
are authorized by law, or the arbitrator determines that a claim was frivolous or brought for an
improper purpose or in bad faith (as measured by the standards set forth in federal rule of civil
procedure 11(b)). In addition, the provisions of federal rule of civil procedure 68 (cost-shifting)
shall apply and be enforced by the arbitrator after entry of an award.
The arbitration may be conducted by telephone, video, based on written submissions, or in-
person in the county where you live or at another mutually agreed location. If requested, you
shall personally appear (with your counsel if you are represented) or Skydell shall have a
representative (with counsel if Skydell is represented) personally appear at any in-person,
video, or telephonic hearing. Notwithstanding anything to the contrary, Skydell will pay all
fees and costs that Skydell is required by law to pay.
The arbitration will be conducted by a single arbitrator who will apply and be bound by this
agreement and will determine any dispute according to applicable law and facts based upon
the record and no other basis. The arbitrator shall issue a reasoned written award only in
favor of the individual party seeking relief and only to the extent to provide relief warranted by
that party’s individual claim. The arbitration award shall be binding only among the parties to
the arbitration and shall have no preclusive effect in any other arbitration or other proceeding
involving a different party.
Waiver of jury trials. Disputes in arbitrations and small claims court are resolved without a
jury trial. Whether in arbitration or court, you and Skydell waive the right to a jury trial to the
maximum extent permitted by law.
Waiver of class actions. As set forth above, Skydell and you each agree to bring any dispute
on an individual basis only, and not on a class, consolidated, representative or collective or
private attorney general basis. If for any reason a claim proceeds in court rather than in
arbitration, Skydell and you each waive any right to a jury trial or to participate in a class action
against the other to the maximum extent permitted by law.
A dispute may not be consolidated with a claim by any person or entity that is not a party to
the arbitration proceeding, and the arbitrator may not otherwise preside over any form of a
class, consolidated, representative, collective, or private attorney general proceeding. If a
court determines that any of the prohibitions on non-individualized relief; class, representative,
and private attorney general claims; and consolidation are unenforceable with respect to a
particular claim or with respect to a particular request for relief (such as a request for
injunctive relief), and all appeals from that decision have been exhausted (or the decision is
otherwise final), then the parties agree that that particular claim or request for relief may
proceed in court but shall be stayed pending arbitration of the remaining claims. Specifically,
and notwithstanding anything to the contrary in this dispute resolution section, the arbitrator
may not issue a “public injunction” and any such “public injunction,” if permitted, may be
awarded only by a federal or state court. If either party is permitted to seek a “public
injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and
any such prayer or claim for a “public injunction” in federal or state court stayed until the
arbitration is completed, after which the federal or state court can adjudicate the party’s claim
or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under
principles of claim or issue preclusion by the decision of the arbitrator. Notwithstanding any
other provision of this dispute resolution section, all issues relating to the scope, interpretation
and enforceability of the class action waiver provisions contained herein are to be decided
only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not
have the power to vary these class action waiver provisions.
Miscellaneous provisions and Covenants.
Non-circumvention. Customer hereby agrees not to circumvent, avoid, bypass, or obviate,
directly or indirectly, the intent of this agreement through any transaction, transfer, pledge,
agreement, lease, assignment, or otherwise. Customer agrees that it will not directly or
indirectly attempt to deal in any manner whatsoever with any of Skydell’s suppliers or
contractors for any elements or components of any of the Products purchased hereunder.
Customer also agrees that it will not pursue a direct or indirect relationship with Skydell’s
contractors, customers, or medical providers.
Non-disparagement obligation: the Customer agrees not to make, publish, or communicate to
any person or entity or in any public forum, any defamatory, disparaging, or otherwise
negative remarks, comments, or statements, whether written or verbal, that could reasonably
be expected to damage the reputation, goodwill, or commercial interests of Skydell, its
Products, services, officers, directors, employees, or members. This includes but is not limited
to comments or statements made through social media, review websites, or any other public
or private communication channels. This non-disparagement obligation applies to the
customer personally and extends to any legal entity that the customer owns, controls, or is a
member or shareholder of. The Customer shall ensure that such entities also comply with this
non-disparagement obligation.
Liquidated damages: Customer acknowledges that any breach of this non-disparagement
clause will cause significant and irreparable harm to Skydell. As such, in the event of a
breach, the customer agrees to pay liquidated damages to Skydell in the amount of ONE-
HUNDRED THOUSAND DOLLARS ($100,000.00) for each breach. The parties agree that
this amount is a reasonable estimate of the damage likely to be incurred by Skydell. In
addition to the liquidated damages specified above, Skydell shall be entitled to seek any
other remedies available under applicable law, including but not limited to injunctive relief to
prevent further breaches, compensatory damages, and recovery of legal fees and costs
incurred in enforcing this non-disparagement clause. This non-disparagement clause shall
survive the termination or expiration of this agreement and shall remain in full force and effect
indefinitely.
Governing law and forum. This agreement will be governed by and construed in accordance
with, and any dispute will be resolved in accordance with the laws of the state of Florida,
without regard to conflict of law principles. To the maximum extent permitted by law, to the
extent any matter proceeds in court, except for small claims court, including any disputes over
the enforceability of these terms that are for a court to decide, you consent to the exclusive
jurisdiction of state courts of Florida.
Force majeure. Any delay or failure of Skydell to perform its obligations under this agreement
will be excused to the extent that the delay or failure was caused directly by an event beyond
Skydell’s control, without Skydell’s fault or negligence and that by its nature could not have
been foreseen by Skydell or, if it could have been foreseen, was unavoidable (including,
without limitation, acts of nature and natural disasters, embargoes, explosions, riots, wars,
acts of terrorism, strikes, labor stoppages, or slowdowns or other industrial disturbances,
government actions or requirements of law, shortages or delays in receiving raw materials,
and shortage of adequate power or transportation facilities) (each a Force Majeure Event”).
Independent parties. Neither party is, nor is to be considered as, the agent of the other
party. Neither party has the authority to enter contracts or assume any obligations for the
other party or make any warranties or representations on behalf of the other party. Nothing
in this agreement shall be construed to create an employee/employer relationship or, a joint
venture relationship.
Notices. Any notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been duly given (a) when delivered by hand; (b) on the
first business day after timely delivery by federal express or other reputable overnight courier
service (receipt requested), (c) on the third business day after being mailed by registered or
certified mail (postage prepaid, return receipt requested), or
(d) on the date sent by facsimile or email of a pdf document (with confirmation of
transmission) if sent during normal business hours of the recipient. Such communications
must be sent to the respective parties at the addresses in the signature page.
Survival. Each party hereby agrees that all provision of this agreement, including the
representations, warranties, covenants and agreements contained herein, which expressly
or by implication continue to be effective after termination or expiration hereof, shall forever
survive the termination or expiration of this agreement.
Severability. If any clause, term, or provision of this agreements determined by any court
or administrative agency of competent jurisdiction to be illegal, unenforceable or in
conflict with any applicable law or regulation, the remainder of the agreement shall
continue in full force and effect as if the offending clauses, terms, and conditions hereof
were no longer incorporated herein.
Assignment. This agreement is non assignable by customer.
Amendment. This agreement may only be amended by written consent of both
parties.
Change in law. In the event that any change in applicable law or regulation occurs after the
date of this agreement and has or would have a significant adverse impact on skydell in
connection with the performance of this agreement, or in the event that performance of any
provision of this agreement should for any reason be a violation of any statute, regulation or
otherwise deemed illegal ("change in law"), either party shall have the right to require the
other to renegotiate the terms of this agreement. The parties agree to thereupon make a good
faith attempt to renegotiate the agreement to the extent necessary to comply with any change
in law while still maintaining the original agreement purposes.
Entire agreement. This agreement as well as any subsequent amendments represent the
complete and entire agreement between the parties on the subject matter of this agreement
and supersede all previous written or oral agreements and understandings.