FACE REALITY, LLC

SUPPLY AGREEMENT

This Supply Agreement (“Agreement”) is made effective [insert date here], between [insert name here] (“Reseller”), with its principal address of [insert address here], and Face Reality, LLC, a Delaware limited liability company (“Face Reality”), with its principal address of 730 Camino Ramon, Suite 200, Danville, CA 94526.  Reseller and Face Reality may be referred to herein individually as a “Party” and collectively as the “Parties.”

RECITALS

A.            Reseller is or employs a licensed skin care professional (Physician, Nurse, Aesthetician, or Cosmetologist) and operates retail brick and mortar stores and/or an eCommerce website from which it conducts business on its own account and provides skin care products and services to third parties.

B.             Face Reality is a manufacturer of consumer beauty, cosmetic and/or skin care products.

C.             Reseller desires to acquire a supply of Face Reality’s Products (as defined below), and Face Reality wishes to supply and deliver such Products to Reseller, on the terms and conditions set forth herein.

Therefore, in consideration of the mutual agreements and promises set forth herein it is agreed:

AGREEMENT

1.              Supply of Products.  During the Term of this Agreement and any extension hereof, Face Reality shall sell and supply Products to Reseller and Reseller shall buy from Face Reality such Products on a non-exclusive basis.  For purposes of this Agreement, the term “Products” means the products and accessories manufactured and/or sold by Face Reality and identified to Reseller from time to time.

1.1.         Reseller Rights Granted.  Subject to the restrictions set forth below, Face Reality hereby grants to Reseller the non-exclusive right, on the terms and conditions set forth herein, to purchase, inventory, promote and resell the Products to its clients and customers (the “EndClients”) during the Term of this Agreement and any extension hereof.  

1.2.         Face Reality Certified Reseller Benefits.  As a Face Reality Certified Reseller, you are afforded a number of benefits, including but not limited to access to the Face Reality Facebook group, among other things.  If, at any time, we deem that a Reseller, or its employees, agents, assigns and/or independent contractors are not acting in in good faith Face Reality may remove that Reseller’s access to some or all of these benefits and/or Face Reality may immediately terminate this Agreement.  This includes, but is not limited to, “white labeling” or rebranding Face Reality Product. Such conduct may lead to Face Reality restricting Reseller access to Products, up to and including removal from the Face Reality Acne Expert Locator and/or termination of account.

1.3.         Restrictions. 

1.3.1.     Reseller, and its employees, contractors, assigns and/or affiliates,

acknowledges and agrees that certain Products are only for use by a trained skin care professional and may not be resold under any circumstances.  Reseller, and its employees, contractors, assigns and affiliates also acknowledges and agrees that Products containing the active ingredients may be sold by Reseller on its website only to End-Clients whose home care is managed by Reseller and/or and its employees, contractors, assigns and affiliates.  The restrictions applicable to Face Reality’s products are more fully described in Exhibit A, attached hereto and incorporated herein by reference, and on Face Reality’s Supplemental Terms and Conditions of Purchase, as may be updated, modified, or amended from time to time (the “Supplemental Terms”) available at https://pros.facerealityskincare.com/ (the “Pro Website”).  Reseller is responsible for reviewing Ex. A and the Supplemental Terms and any and all updates thereto.  Reseller acknowledges and agrees that certain Products, as identified on Ex. A and in the Supplemental Terms, will only be used by a trained professional and/or resold to End-Clients whose home care is managed by Reseller (and/or its employees, contractors, assigns and affiliates) in accordance with the terms and conditions stated on Ex. A and in the Supplemental Terms and any updates thereto.  Reseller is responsible, and fully and completely liable, for any sale or use of certain Products that deviate from the limitations listed on Ex. A and in the Supplemental Terms and any updates thereto. 

1.3.2.     Reseller represents that he or she is, employs and/or will remain a

licensed skin care professional (Physician, Nurse, Aesthetician, or Cosmetologist) throughout the term of this Agreement. Should a Reseller’s license change, terminate or lapse, Reseller must immediately notify Face Reality and this Agreement will automatically terminate.  Reseller is solely and completely liable for any and all use of Face Reality Products if and when Reseller is not licensed or if and when Reseller is acting outside his or her scope of practice.

1.3.3.     Reseller and its employees, contractors, assigns and affiliates agree and

acknowledge that, where appropriate, it will ensure that any home care regimen designed for, or recommended to, an End User include the full regimen of Face Reality products. 

1.4.         Purchase Orders.  Face Reality agrees to sell to Reseller the Products ordered either by (i) Reseller’s duly issued written purchase orders, or (ii) electronically transmitted sales orders by e-mail (each, a “Purchase Order”) on the terms and conditions provided herein.  Each Purchase Order shall be deemed to be incorporated as part of this Agreement upon Reseller’s issuance thereof, provided, however, that any variations made to the terms and conditions of this Agreement by Reseller in any Purchase Order are void and have no effect.  Face Reality has the right, in its sole discretion, to accept or reject any Purchase Order.  A Purchase Order shall be deemed accepted by Face Reality in the event Face Reality fails to provide proper written notice of rejection within forty-eight (48) hours of Reseller’s issuance of the Purchase Order.  Upon rejection of a Purchase Order, Face Reality shall refund the payment therefor.

1.5.         Cancellation of Purchase Order.  Reseller shall have no right to cancel any Purchase Order.  Face Reality may, in its sole discretion, without liability or penalty, cancel any Purchase Order:

1.5.1.     if Reseller is in violation of its payment obligations or has materially

breached this Agreement;

1.5.2.     if Face Reality determines in its sole discretions that Reseller’s

financial condition or creditworthiness is inadequate or unsatisfactory;

1.5.3.     If Face Reality determines that Reseller is misusing Product and/or

selling Product containing the active ingredients to End-Clients without managed home care; 

1.5.4.     If Reseller loses his or her skin care professional license;

1.5.5.     If Reseller violates the Code of Conduct or otherwise acts in a manner

that would demean, degrade or disparage the Face Reality brand. If Reseller uses or sells the Products and/or FR Programs in a manner that is outside the scope of his or her licensed professional duties or not in accordance with the applicable federal, state and local rules and regulations.  In such instances, Reseller will be completely and solely liable for any and all resulting claims and causes of action.  Such action may also result in the immediate termination of this Agreement; and

1.5.6.     If Reseller sells the Products and/or FR Programs outside the United States.  In such instances, Reseller will be completely and solely liable for any and all resulting claims and causes of action.  Such action may also result in the immediate termination of this Agreement.

2.              Terms of Sale; Payments.

2.1.         Terms of Sale.  All sales of Face Reality’s Products to Reseller shall be made pursuant to this Agreement at such prices and on such terms, as Face Reality shall establish from time to time upon thirty (30) days prior written notice (the “Purchase Price”).

2.2.         Payments.  Reseller shall pay Face Reality for the Products at the time it submits the Purchase Order. 

2.3.         Taxes.  Reseller shall pay and be responsible for all taxes that are measured directly by the Purchase Price payments made by Reseller to Face Reality for the Products hereunder and which Face Reality is legally required to collect and pay over to tax authorities.  The taxes for which Reseller is responsible hereunder shall include sales, use and excise taxes, but shall exclude, without limitation, Face Reality’s franchise or business taxes, taxes based on Face Reality’s net income or gross receipts, and taxes from which Reseller is exempt by law as shown by a current, valid tax exemption certificate, when such a certificate is required.  Reseller shall be solely and exclusively liable for obtaining and maintaining a valid tax exemption certificate in order to obtain wholesale prices.  If Reseller fails to maintain a valid tax exemption certificate, it will be liable for any and all taxes, interest and penalties that may result. Reseller is also responsible for notifying Face Reality of any and all changes in its tax-exempt status and then paying the necessary taxes and pricing that may result. 

Failure to keep a current, valid tax exemption certificate and/or to notify Face Reality of changes thereto may result in the automatic termination of this Agreement.

3.              Conforming and Non-Conforming Product.

3.1.         Conforming Product.  “Conforming Product” is defined as Product which is fit for its intended purposes, free from defects in workmanship and of merchantable quality, and is produced and/or handled in full compliance with all applicable laws rules and regulations of Federal, State and local governments or regulatory agencies, and the terms and conditions of this Agreement.

3.2.         Non-Conforming Product.  Any Product that, in Face Reality’s determination, is not produced and/or handled in compliance with Section 3.1 above is defined as “Non-Conforming Product.”  Additionally, any Product that is later found to be in violation of any warranty provided by Face Reality shall be considered Non-Conforming Product.

4.              Shipment and Delivery.

4.1.         Shipment.  Unless expressly agreed to by the Parties in writing, Face Reality shall select the method of shipment of, and the carrier for, the Products. Face Reality may, in its sole discretion, without liability or penalty, make partial shipments of Products to Reseller. 

4.2.         Shipping Fees.  Reseller shall be responsible for all freight costs, insurance costs, and shipping fees, unless otherwise agreed upon by Face Reality.

4.3.         Delivery.  Unless expressly agreed to by the Parties in writing, Face Reality shall deliver the Products to the street address specified in the applicable Purchase Order using Face Reality’s standard methods for packaging and shipping such Products, which are further described in Exhibit B, hereto.  At Reseller’s written request, Face Reality may ship product directly to Reseller’s End-Client; provided, however, that Face Reality shall not be responsible for communicating with the End-Client regarding any shipments, including providing tracking information. Reseller acknowledges and agrees that all communications regarding shipments shall be solely between Reseller and his/her End-Client.  In addition, Reseller acknowledges and agrees that any returns of Product sought by the End-Client shall be solely Reseller’s responsibility to arrange in compliance with Face Reality’s return policy.

4.4.         Late Delivery.  Any time quoted by Face Reality for delivery is an estimate only. Face Reality is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver, or delay in delivery.  No delay in the shipment or delivery of any Products relieves Reseller of its obligations under this Agreement, including without limitation accepting delivery of any remaining installment(s) of Products.

4.5.         International Shipment and Sales.  Face Reality does not ship outside the United States and its products are not authorized for sale or use outside of the United States.  Face Reality makes no representations and disclaims all warranties that the sale, prescription, or use of its products outside of the United States are in compliance with the laws of any foreign jurisdiction. Face Reality shall have no liability to you or to any client or third party for any of its products that you ship, sell, prescribe or use outside of the United States, and any and all risks or liabilities arising therefrom shall be your sole responsibility. Face Reality shall have no obligation to indemnify Reseller, End-Clients, or any third party in the event any damages, claims, demands, actions, fines, penalties, taxes, or losses of any kind arise from or relate to Reseller’s unauthorized shipment to, or sale, prescription or use of products within jurisdictions outside of the United States. Reseller agrees to indemnify, protect, defend and hold harmless Face Reality and its directors, officers, shareholders, agents, representatives, affiliates and successors, from and against any all damages, claims, demands, actions, fines, penalties, taxes or losses of any kind directly or indirectly resulting from or relating to your shipment, sale, or prescription of any Face Reality products to End-Clients or any other third parties, or their use thereof, in jurisdictions outside of the United States.

4.6.         Title and Risk of Loss.  Title and risk of loss to the Products ordered under any Purchase Order passes from Face Reality to Reseller upon delivery of possession of the Products to the carrier.  Reseller shall bear the risk of loss and be liable for any loss or damage sustained in transit and Reseller shall not be entitled to any offset or deduction of any such loss or damage. Claims for damages in transit, and for any lost or stolen packages if no signature is required at delivery, must be asserted by Reseller against the carrier. Notwithstanding the foregoing, claims for shortage not due to the actions or neglect of the carrier shall be deemed waived unless made, in writing, to Face Reality within five (5) business days from receipt of shipment.

4.7.         Inspection.  Upon delivery, Reseller shall have thirty (30) days (the “Inspection Period”) to inspect Products for any and all damage or defects, including but not limited to Products that deviate from any of Face Reality’s Product specifications (“Non-Conforming Products”).  Reseller will be deemed to have accepted the Products unless it notifies Face Reality in writing of any Non-Conforming Products during the Inspection Period and provides such written evidence or other documentation as reasonably required by Face Reality.  If Reseller timely notifies Face Reality of any Non-Conforming Products, Face Reality shall determine, in its sole discretion, whether the Products are Non-Conforming Products.

4.8.         Limited Warranty.  Face Reality warrants to Reseller that:

4.8.1.     No Products will be Non-Conforming Products; and

4.8.2.     Reseller will receive good and valid title to the Products, free and clear

of all encumbrances and liens of any kind.

4.9.         Warranty Limitations.  The warranties under Section 4.7 do not apply where the Products have:

4.9.1.     been subjected to abuse, misuse, improper storage, improper handling,

and/or abnormal environmental conditions; or

4.9.2.     been reconstructed, repackaged, “white labeled,” rebranded, modified,

or altered by anyone other than Face Reality or its authorized representatives, if any; or

4.9.3.     been used in violation of applicable directions or instructions for use

or application, or otherwise used with any third-party product that has not been previously approved in writing by Face Reality for such use(s).  Third-party products are not covered by the warranty in Section 4.7. For the avoidance of doubt, Face-Reality makes no representations or warranties with respect to any third-party product.

5.              Return and Replacement.

5.1.         Limited Right of Return.  Except as provided under this Section 5, Reseller has no right to return Products purchased under this Agreement to Face Reality.

5.2.         Returns Policy. 

5.2.1.     Conforming Product.  Face Reality may accept returns of all unopened

undamaged, unexpired Conforming Products for up to thirty (30) days after delivery of said Products to Reseller (“Returned Product”), except as otherwise provided below.  Reseller must contact Face Reality prior to any return to obtain a return authorization number (“Return Authorization Number”).  No Product will be accepted for return without a Return Authorization

Number.  Reseller can obtain a Return Authorization Number by contacting Face Reality’s Orders Department at orders@facerealityskincare.com (or such other number as may be specified by Face Reality.  All Returned Product will be inspected by Face Reality for compliance with this Section 5.2.1.   Returned Product that is returned within thirty (30) days from the date of delivery will be eligible for credit or full refund.  Conforming Product that is damaged or shipped incorrectly will be replaced or exchanged, in Face Reality’s sole discretion, at no expense to Reseller, provided that a claim is made within seven (7) business days from receipt of the Product.  Reseller will be charged a restocking fee equal to twenty percent (20%) of the cost of Returned Product if returned between thirty-one and ninety (31-90) days after delivery.  There shall be no returns of Conforming Products after ninety (90) days of delivery.

5.2.2.     Non-Conforming Product.  For any Non-Conforming Product Face Reality shall either (a) replace the Non-Conforming Products with Conforming Products as soon as commercially possible without any additional cost to Reseller, or (b) credit or refund the Purchase Price paid, if any, for the Non-Conforming Products, together with all shipping and handling expenses incurred by Reseller in connection therewith.  At Face Reality’s election in its sole discretion Non-Conforming Product shall either be returned by Reseller to Face Reality at Face Reality’s sole expense or Face Reality shall make arrangements for the pickup and recover of such Non-Conforming Product at its expense.  In no event shall Reseller sell, distribute or use any Non-Conforming Product.

5.2.3.     End-Client Returns and Complaints.  Any complaints or requested

returns of Product by the End-Clients of Reseller shall be processed by Reseller.  If any of Reseller’s End-Clients contact Face Reality directly to request a return of Product, Face Reality shall notify Reseller and Reseller shall process such request.

5.3.         Exclusive Remedy.  RESELLER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN Section 5.2.2 ARE RESELLER’S EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING PRODUCTS.

6.              Representations & Warranties.

6.1.         By Reseller.

6.1.1.     Reseller is free, and has full right and authority, to enter into this Agreement and to perform all of its obligations hereunder; and it has performed all acts and taken all steps necessary to authorize the execution of this Agreement;

6.1.2.     Reseller’s execution, delivery and performance of this Agreement does

not conflict with any other agreement to which Reseller is a party or is otherwise bound;

6.1.3.     Reseller has, and shall preserve, maintain and comply with, all licenses

and permits required for the conduct of Reseller’s business and the sale of Products at Reseller’s locations or on its website, including all licenses and permits required by state and local government authorities to market, promote and sell the Products and to provide skin care services;

6.1.4.     The Products supplied to Reseller hereunder shall be stored, handled,

applied, used, and sold by Reseller in accordance with Supplier’s specifications and standards and in compliance with all applicable federal, state and/or local laws, regulations and requirements, and Reseller shall use commercially reasonable efforts to assure that the employees, agents and/or representatives of Reseller handling, using or selling the Products do likewise;

6.1.5.     Reseller shall ensure that all of its employees, agents, independent

contractors, affiliates and assigns that sell or use the Product shall do so in the manner set out in this Agreement (including but not limited to Ex. A and the Supplemental Terms, as updated from time to time), that those individuals are licensed and certified to use Face Reality Products, FR Programs and services as needed, and that Products are used in accordance with any and all directions or trainings provided by Face Reality;

6.1.6.     Reseller shall ensure that all of its employees, agents, independent

contractors and assigns that use or sell Product have and maintain any and all licenses, permits and tax exempt certificates required by state and local government authorities to market, promote and sell the Products and to provide skin care services; 

6.1.7.     Reseller shall ensure that all of its employees, agents, independent

contractors and assigns use the Products or FR Programs within the scope of their licensed duties, within the state(s) they are licensed in, and/or within the United States; 

6.1.8.     Reseller will act in good faith at all times;

6.1.9.     Reseller will use Face Reality Products, as outlined herein where

appropriate;

6.1.10.  Reseller will merchandise and advertise, both in retail locations and on-

line, Face Reality Products in such a way as to positively highlight Face Reality’s trademarks, trade dress, collateral and products;

6.1.11.  Reseller will merchandise Face Reality Products in a positive and

attractive manner;

6.1.12.  Reseller is permitted to sell Face Reality Products in its retail brick and

mortar stores and an eCommerce website.  In order to sell Face Reality Products on its website, Reseller must first inform their Face Reality representative and corporate offices of the existence of the Reseller’s website and provide the representative URL address for inspection.  Physicians who sell Face Reality products over their website products must do so through their private or group practice;

6.1.13.  Reseller may not sell any Face Reality Products via third-party sites,

including but not limited to eBay, Amazon, Craigslist, Facebook Marketplace, Poshmark, Mercari, Walmart, etc. Diversions of this nature may lead to the immediate termination of this Agreement;

6.1.14.  Reseller will not “white label,” rebrand/or otherwise modify Face Reality Product labeling, advertising materials and/or trade dress; and

6.1.15.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, RESELLER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN THE PRACTICE OF ANY SKIN TREATMENT OR ESTHETICIAN PROCESS, WHETHER IN TERMS OF SUITABILITY, GENERAL EFFECTIVENESS, TREATMENT SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY FACE REALITY, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.

6.2.         By Face Reality.

6.2.1.     Face Reality is free, and has full right and authority, to enter into this Agreement and to perform all of its obligations hereunder; and it has performed all acts and taken all steps necessary to authorize the execution of this Agreement; 

6.2.2.     Face Reality has all rights necessary to lawfully market, sell and

distribute the Products (including without limitation Face Reality Products that are made by third parties); 

6.2.3.     Face Reality is and shall remain in compliance with all laws and

regulations applicable to the manufacture, sale, marketing, and distribution of the Products; and

6.2.4.     Face Reality’s execution, delivery and performance of this Agreement

does not conflict with any other agreement to which Face Reality is a party or is otherwise bound.

7.              Disclaimer of Warranties.  EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER FACE REALITY NOR ANY OF ITS DIRECT OR INDIRECT SUBSIDIARIES OR AFFILIATES MAKES ANY, AND HEREBY DISCLAIMS ALL, OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, TO THE EXTENT ALLOWED BY APPLICABLE LAW, WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INFRINGEMENT OF

INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.  RESELLER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY FACE REALITY, OR ANY OTHER PERSON ON FACE REALITY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN Section 4.7 OF THIS AGREEMENT.

8.              Recall.  If an authorized government agency institutes or mandates a recall of the Products or, if Face Reality, in the exercise of its sole discretion, initiates and directs the content and scope of a recall, market withdrawal, stock recovery, product corrections and/or advisory safety communication (each referred to as “Recall Action”) regarding the Products, Reseller agrees to fully cooperate and take all such steps as are reasonably requested in a timely and complete manner, including but not limited to assisting Face Reality, as necessary or required by law, to contact Reseller’s customers who purchased and/or used the relevant Products.  All costs involved with respect to any Recall Action will be borne by the Party whose fault required the Recall Action or by the Party that by law or regulation is otherwise responsible for such Recall Action. Notwithstanding the foregoing, if a voluntary recall is demanded by either Party without such recall being (i) required by any law or regulation in effect from time to time, or (ii) based upon good faith concerns over the safety of the ultimate consumers of the Products, then the Party demanding such voluntary recall shall bear all costs associated therewith.

9.              Indemnity.

9.1.         Indemnification by Reseller.  Reseller shall indemnify, defend and hold harmless Face Reality and its officers, directors, employees, shareholders, agents, representatives, affiliates, successors and assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), relating to/arising out or resulting from:

9.1.1.     breach or non-fulfillment of any representation, warranty, or covenant

of this Agreement by Reseller and its employees, agents, affiliates and assigns;

9.1.2.     any negligent or more culpable act or omission of Reseller and its

employees, agents, affiliates and assigns (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;

9.1.3.     any bodily injury, death of any person or damage to real or tangible

personal property caused by the willful or negligent acts or omissions of Reseller, and its employees, agents, affiliates and assigns, or the use of the Products in any manner not otherwise authorized under this Agreement or that does not materially conform with the Product usage instructions/guidelines/specifications; or

9.1.4.     any failure by Reseller, and its employees, agents, affiliates and

assigns, to comply with any applicable statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order, or other requirement or rule of law of any governmental authority or regulatory body.

9.2.         Exceptions and Limitations on Indemnification.  Notwithstanding anything to the contrary in this Agreement, Reseller is not obligated to indemnify or defend Indemnified Party against any claim (direct or indirect) if such claim or corresponding Losses arise out of or result from Indemnified Party’s:

9.2.1.     gross negligence or more culpable act or omission (including

recklessness or willful misconduct); 

9.2.2.     sale or use of the Product in a manner that does not accord with this Agreement (including but not limited to Ex. A and the Supplemental Terms, as updated from time to time) and/or any and all directions or trainings provided by Face Reality; 

9.2.3.     the sale or use of Face Reality Products outside the United States; or

9.2.4.     bad faith failure to comply with any of its obligations set forth in this Agreement.

9.3.         Face Reality Intellectual Property Indemnification.  Face Reality shall indemnify, defend, and hold harmless Reseller from and against all Losses awarded against any Reseller arising out of any Claim of a third party alleging that any of the Products infringes any intellectual property right of a third party.  If a Product, or any part of a Product, becomes, or in Face Reality’s opinion is likely to become, subject to a third-party Claim that qualifies for intellectual property indemnification coverage under this Section 9.3, Face Reality shall, at its sole option and expense, notify Reseller in writing to cease using, reselling, marketing, advertising, or promoting all or a part of the Product, in which case Reseller shall immediately cease all use, resale, marketing, advertising and promoting the Product on receipt of Face Reality’s notice.  Reseller shall notify Face Reality of third-party Claims against Reseller and cooperate in the investigation, settlement, and defense of such Claims.  Notwithstanding anything to the contrary in this Agreement, this Section 9.3 does not apply to any claim (whether direct or indirect) for which a sole or exclusive remedy is provided for under another section of this Agreement.

9.4.         Survival. Such indemnification obligations shall survive the expiration or termination of this Agreement for any reason.

10.           Certification; Training.  Unless otherwise agreed by the Parties in writing, Face Reality will provide one training of Reseller as part of the process to allow Reseller to become a certified Reseller of the Products.  Upon completion of the Face Reality’s training and certification program, as well as the submission of certain documentation and other things. the Reseller shall become “Face Reality-certified,” which means that he/she is qualified to assess skin care needs and perform professional treatments related to acne, and is capable of selecting, promoting and selling the Products, and shall have a limited, non-exclusive license to represent that he/she/they is/are “Face Reality-certified.”  Face Reality, in its sole discretion, may also provide periodic educational opportunities to Reseller in connection with the use or resale of the Products.  Such educational opportunities should allow Reseller to become sufficiently knowledgeable of Face Reality’s Products so as to be able to explain in detail to Reseller’s customers the attributes of the Products and provide information on standard FR Programs and uses of each Product.  Face Reality will offer such educational opportunities as it considers appropriate, and may vary what it provides from time to time.  Notwithstanding the foregoing, skin care and treatment may take years and constant learning for anyone to become proficient at.  Every educational program participant has or will have a unique level of commitment, experience, and different abilities to learn and apply the information presented.  Individual results may vary, and Face Reality does not represent or guarantee that each participant in any offered educational opportunity will achieve the same or similar results.  Face Reality’s educational offerings, if any, are not a substitute for legally required or industry-specific training and/or licensing requirements, nor are they intended to provide any medical or dermatological training that would enable Reseller to diagnose or treat any medical condition.  Face Reality training does not, by itself, qualify a Reseller to sell Face Reality Products. 11. Advertising Policies.

11.1.      General.  The operations of Reseller are subject to the sole control of Reseller.  All personnel of Reseller are employees or representatives of Reseller and not of Face Reality.  Reseller agrees to conduct all its business in its own name and in such a manner as he/she/it may see fit, set his/her/its own hours, and supervise his/her/its own workers.  Further, certain associates of the Reseller may be required to enter into, agree to and comply with an Associate Agreement.

11.2.      Product Promotion.  Reseller shall use commercially reasonable efforts to engage in the marketing and sale of Face Reality’s Products to prospective and existing customers/clients, in keeping with the terms of this Agreement and the MAP Policy delineated below.  Reseller shall maintain sufficient knowledge of Face Reality’s Products, the esthetician industry, and products competitive with Face Reality’s Products so as to be able to explain to customers/clients in detail the differences between the Products and competing products.  Reseller may use advertising and promotional materials or other written product descriptions to promote the sale of the Products, whether set forth on the Product’s labeling, packaging, or other related sales materials, provided that such advertising and promotional material complies with all applicable laws and are in keeping with the Reseller’s Representations and Warranties as well as Face Reality’s brand standards and requirements.  Reseller shall not make claims or statements that are false or injurious or beyond those allowed for by Face Reality.  Reseller may not make material changes or alterations to Face Reality’s advertising and promotional materials without Face Reality’s prior review and express approval.

11.3.      Product Claims.  Reseller shall not make any claims or representations regarding the Products other than those claims and representations found in Face Reality product information and/or marketing materials.  Reseller understands and acknowledges that Face Reality sells two categories of products: (i) cosmetic, and (ii) those that contain over-the-counter drugs (“OTC’s).  The United States Food and Drug Administration defines a cosmetic as a product (excluding pure soap) intended to be applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance.  All claims regarding cosmetic products must focus exclusively on appearance changes.  Reseller’s representations must not extend beyond what is represented by Revision and must also comply with the regulations of the United States Food and Drug Administration and the Federal Trade Commission.  If “active ingredients” are included in the Drug Facts Box on a Product label, then the Product contains OTC’s and any claims regarding such Product(s) must be strictly limited to the claims found in Face Reality marketing materials and the labeling for such Product(s).

11.4.      Use of Face Reality’s Intellectual Property.  Other than the express licenses granted by this Agreement, Face Reality grants no right or license to Sales Representative by implication, estoppel, or otherwise to the Products or any of Face Reality’s intellectual property rights.  Reseller shall not contest the right of Face Reality to exclusive use of any trademark or trade name used or claimed by the Face Reality.  Reseller may, subject to Face Reality’s policies regarding reproduction of same, utilize Face Reality’s name, trademarks and logos in advertising, in catalogs or on its website.  All use of Face Reality’s name, trademarks and/or logos by Reseller in connection with the resale of the Products hereunder shall be subject to a limited, non-exclusive license or sublicense granted by Face Reality to Reseller to use Face Reality’s name, trademarks and/or logos during the Term solely and exclusively for Reseller’s performance of its obligations under this Agreement, to sell and promote the Products at its physical locations or on its website, and for such other purposes as Face Reality may expressly authorize in advance in writing.

11.5.      Use of Images.  Only until such time as Reseller can use its own photos and imagery related to treatment results or Products, Reseller shall have a limited, non-exclusive license to use certain images and photos provided by Face Reality (the “Images”) on its website to promote the Products.  Notwithstanding the foregoing, Reseller agrees to immediately remove any photos and/or imagery of or relating to the Products or Face Reality that are deemed by Face Reality, in its sole discretion, to be improper, misleading, false, deceptive, or illegal.  Reseller may not make material changes or alterations to Face Reality's photos or imagery without Face Reality's prior review and express approval.

Further, if Reseller uses its own photos and imagery, it is completely and solely responsible for obtaining all consents, rights and permissions to do so in accordance with local, state and federal laws. Face Reality will have no liability if Reseller improperly obtains or uses its own photos or images.

11.6.      Media Inquiries.  To ensure accurate, legally compliant, and consistent information to be provided to the public, Reseller may not respond to media inquiries regarding Face Reality, the Products, or any other aspect of Face Reality’s business.  All media inquiries shall be immediately referred to Face Reality for handling.  Additionally, Reseller may not seek media opportunities that relate to Face Reality or the Product without Face Reality’s express written consent, which may be withheld in Face Reality’s sole discretion.

11.7.      Marketing and Resale Only.  Reseller is authorized to market the Products only in the form and packaging as authorized by Face Reality to Reseller and in accordance with the terms of this Agreement (including but not limited to Ex. A and the Supplemental Term, as updated from time to time).  Nothing herein, however, shall prevent Reseller, in its reasonable discretion, from separately developing advertising and promotional materials to promote the sale of the Products.

11.8.      Ethical Marketing.  Reseller shall safeguard and promote the good reputation of Face Reality at all times.  Reseller shall at all times conduct his/her/its business in a manner that reflects favorably on Face Reality and the good name, goodwill and reputation of Face Reality.  Reseller shall not engage in any unfair, unethical, misleading or deceptive practices in promoting and/or selling the Products, nor shall Reseller disparage Face Reality or the Products, or otherwise case Face Reality or the Products in a false light.  Reseller shall comply with all applicable laws, rules, regulations or governmental requirements applicable to the operation of Reseller’s business, the performance of this Agreement, and the marketing, sale and/or use of the Products. Reseller may not make material changes or alterations to Face Reality's advertising and promotional materials without Face Reality's prior review and express approval. 

11.9.      Morals Clause.  Neither Reseller nor Reseller’s employees, representatives or agents shall commit any act or do anything which might reasonably be considered: (i) to be immoral, deceptive, scandalous or obscene; (ii) to injure, tarnish, damage or otherwise negatively affect the reputation and goodwill associated with Face Reality and/or its products and services; and/or (iii) make any statements that are negative concerning the Face Reality brand, its Products and its skin care regimes. If the Reseller or Reseller’s employees, representatives or agents are accused of any act involving moral or ethical issues, dishonesty, theft or misappropriation, under any law, or any act which casts an unfavorable light upon its association with Face Reality or Reseller, including but not limited to adverse action against his or her skin care license, is accused of performing or committing any act which could adversely impact the marketability of Face Reality’s products or services or Face Reality’s reputation or corporate image, as determined by Face Reality in its sole discretion, Face Reality shall have the right to terminate this contract upon fifteen (15) days written notice without liability to Reseller.  Further, Reseller and its employees, contractors, assigns and affiliates shall also fully comply with the Code of Conduct in Exhibit A.

11.10.   No Outbidding. Resellers shall not bid against Face Reality for, or purchase, any domains that include any variation or misspelling of Face Reality, Face and Reality in any format, in any pay per click search engine, including but not limited to, Google, Bing, Yahoo, Ask, Lycos, Facebook or Amazon.

11.11.   Minimum Advertised Price (“MAP”) Policy.  Face Reality has a MAPS policy in place to protect the value that it brings to Resellers.  In furtherance of this:

11.11.1.                 This MAP Policy is applicable to all authorized Resellers and to all Face Reality Products and FR Programs.

11.11.2.                 Pursuant to this MAP Policy, Resellers may not advertise or sell Face Reality Products or FR Programs at prices below MAP, as set forth on Face Reality’s website: https://facerealityskincare.com/.  "Advertising" includes, but is not limited to, promotions and advertising in the following format: (a) Print (magazines, newspapers, flyers, inserts, circulars, direct mail, out of store Reseller coupons); (b) Broadcast (television, radio, on-line video); (c) Billboards, windows or other outdoor advertising; and/or (d) E-mail, Internet and online advertisements (individual product pages, product list pages, website home pages, social media posts, banner ads, pop up ads, paid search results and circulars).

11.11.3.                 Pre-tax advertised price must be at or above MAP (i.e., MAP is

exclusive of any applicable taxes).

11.11.4.                 Advertisements that list a discount without showing a specific

advertised price in dollars are subject to MAP (i.e., if the discount results in the price going below MAP, it is a violation).

11.11.5.                 Discounting of up to ten percent (10%) is allowed; no discounting or

promotions in excess of 10% are allowed at any time. Any and all aggregate discounts must not exceed 10% 

11.11.6.                 If a Reseller advertises a 'store-wide' or 'category-wide' discount

applicable to any product in its office/store or on its website prior to check-out and such discount results in a net advertised price lower than the MAP for such Product, then that shall constitute a violation of this MAP Policy.

11.11.7.                 Offering coupons, discounts, rebates, credits, or other inducements

that, when applied, result in a net advertised price lower than the MAP for a Product, including through use of a storewide sale or discount, category-wide sale or discount, promotional code, or other similar provision that can be applied to such Product, or scraped and applied, shall be a violation of this MAP policy.

11.11.8.                 Under no circumstances may the aggregate of any promotions or

discounts exceed 10%.

11.11.9.                 Resellers who violate this MAP Policy may be subject to sanctions

such as a warning letter informing them of the violation and consequences for future violations, suspension of supply/ordering privileges, and/or immediate termination of this Agreement.

11.11.10.              Face Reality reserves the right to modify, suspend or discontinue this MAP in whole or in part at any time, or to designate promotional periods during which the terms of the Policy may change or not be applicable. Face Reality will notify Resellers of any such changes at least thirty (30) days prior to implementation.

11.11.11.              If a discount appears on coupon scraping sites or a Google search, it is

a violation of this MAP policy.

                        11.11.12.     Exclusions from MAP:

(a)            This MAP Policy does not apply to the retail prices at which Products or FR Programs are actually sold. Resellers continue to have the right to sell at any price they choose. This simply controls the advertised price of Face Reality Products and FR Programs.

(b)           Solely on-premises or in-store advertising (in-store signage, price

tags, displays, hang tags).

(c)           Subscription or repeat delivery discounts; in these instances, any

advertisement of a discount below MAP must be clearly linked to signing up for subscription or repeat delivery. For example, “5% off xxx valid with autoship” would be compliant.

(d)           Offers of free gifts of product with qualifying purchase. For

example, the offer of a free UGC Wash with the purchase of at least $50 of Face Reality products would be compliant, while the offer of a 50% discount on Facial Wash with any purchase of products would not be compliant.

(e)           Price quotes responding to a direct consumer inquiry, whether

transmitted in person, by phone, or e-mail.

(f)            Strategic promotional vehicles (as defined by the Face Reality Marketing Department).

(g)           A one-time, once a year exception may be granted if approved in

writing by a Face Reality representative in advance of the proposed sale or discount. Email experts@facerealityskincare.com for any additional questions or clarification.

(h)           The annual sales delineated supra.

11.11.13. Resellers who violate this MAP Policy may be subject to sanctions at Face Reality’s sole discretion. Should a Reseller choose to violate this MAP Policy, Face Reality reserves the unilateral right to:

(a)   First Violation: Send Reseller a letter informing them of the violation.

(b)  Second Violation: Send Reseller a letter informing them of the violation and consequences for future violations.

(c)   Third Violation: Suspend supply of Face Reality Products featured in the Reseller’s noncompliant advertising or sale. The SKU will remain blocked for at least another thirty (30) calendar days after the violation is corrected in accordance with MAP.

                        11.11.14.   If a Reseller receives three (3) warnings of MAP Policy violations, this

contract may be terminated immediately at Face Reality’s sole discretion and Face Reality will have the right to stop all shipments to Reseller.

11.12. Reservation of Rights.  The Parties acknowledge and agree that, except for the rights and licenses expressly granted by Face Reality to Reseller under this Agreement, Face Reality will retain all right, title and interest in and to its Products, services, trademarks, and all content, information and other materials on their respective websites, and nothing contained in this Agreement will be construed as conferring upon Reseller, by implication, operation of law or otherwise, any other license or other right.  Neither Reseller nor his/her/its employees, staff, personnel, representatives or agents shall, directly or indirectly, make any representations, warranties, guarantees, indemnities, similar claims, or other commitments actually, apparently, or ostensibly on behalf of Face Reality to any customer/client with respect to the Products, which representations, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in any online or written documentation made available from Face Reality to its customers or product users.

11.13. No Continuing Rights.  On expiration or earlier termination of this Agreement, Reseller will immediately cease all display, advertising, promotion, and use of all of Face Reality’s trademarks and will not thereafter use, advertise, promote, or display any trademark or any part thereof that is similar to or confusing with Face Reality’s trademarks or with any trademark associated with Face Reality or any Product.

12.           Term and Termination. 

12.1.      Term.  The Term of this Agreement shall commence on the Effective Date until this Agreement is terminated by either Party as provided in this Section 12.  

12.2.      Termination without Cause.  Either Party may terminate this Agreement at any time for any reason or no reason at all by written notice given to the other Party not less than thirty (30) days prior to the effective date of such notice.  Neither Face Reality nor Reseller shall have any further obligation or liability to the other for any terminated pending Purchase Orders.

12.3.      Termination for Default.  A Party shall commit an “Event of Default” under this Agreement if: (i) such Party fails in any material respect to perform or keep any of its material obligations or covenants hereunder, or otherwise materially breaches this Agreement, and fails, in each case, to cure such failure or breach within thirty (30) days after its receipt of written notice thereof from the other Party; (ii) any representation or warranty made by such Party herein is false or inaccurate in any material respect when made, or becomes false or inaccurate in any material respect thereafter; or (iii) such Party files a petition in bankruptcy, or has filed against it an involuntary petition in bankruptcy not dismissed within sixty (60) days after filing, or applies for or consent to the appointment of a receiver, custodian, trustee or liquidator, or makes a general assignment for the benefit of creditors. If a Party commits an Event of Default (the “Defaulting Party”), then the other Party (the “Non-Defaulting Party”) may terminate this Agreement upon written notice to the Defaulting Party. Such termination shall be without prejudice to the NonDefaulting Party’s other rights and remedies under this Agreement, at law, or in equity.

12.4.      Termination for Cause. Face Reality can terminate this Agreement immediately for cause as defined as follows:

12.4.1.  The suspension, revocation, surrender or cancellation of Reseller’s skin

care license;

12.4.2.  The discipline of Reseller by any professional medical organization

with material jurisdiction over Reseller;

12.4.3.  The imposition of any restrictions or limitations by any governmental

authority having jurisdiction over Reseller to such an extent that Reseller cannot engage in the professional skin care practice;

12.4.4.  Reseller’s failure or refusal to comply with the Morals Clause, after

receiving notice and fifteen (15) days to cure such breach, and either (i) Reseller is still in breach of the Morals Clause of this Agreement if such breach or failure could reasonably have been cured within thirty (30) days; or (ii) if such breach or failure cannot reasonably be remedied within fifteen (15) days, Reseller has not commenced to cure the breach within fifteen (15) days, or such breach has in any event not been cured within ninety (90) days; or

12.4.5.  Reseller has an affirmative to timely report to Face Reality any

investigation or inquiry by any regulatory agency, governmental authority or professional society regarding any item or activity, whether material or not, and listed in this Section.  Failure to report is grounds for cause and automatic termination of this Agreement.

12.4.6.  Reseller sells Products or FR Programs outside  his or her scope of

licensed authority/practice (including any geographic restrictions) and/ or outside the United States.

12.4.7.  Reseller sells Face Reality Products on a third-party website or

platform and/or “white labels” or rebrands Products or makes material changes Face Reality’s advertising and promotional materials without Face Reality’s prior review and express approval.

12.5.      Effect of Termination.

12.5.1.  No Authorized Sales.  Upon termination of this Agreement, Reseller

shall cease to be an authorized Reseller for Face Reality.

12.5.2.  Unshipped Purchase Orders.  All unshipped Purchase Orders shall be

cancelled without liability of either Party to the other. 

13.           Confidentiality. 

13.1.      Definition.  “Confidential Information” means all confidential or proprietary information of a Party (the “Disclosing Party”) that it designates as confidential at the time of disclosure to the other Party (the “Receiving Party”) or that the Receiving Party, based on the nature of the information or the circumstances surrounding its disclosure, should reasonably understand to be confidential.  Confidential Information includes all such information submitted to, observed by or learned by the Receiving Party in connection with this Agreement, including this Agreement, information relating to the Disclosing Party’s customers, technology, operations, facilities, products, ideas for products, systems, procedures, practices, research, development, employees, business affairs and/or financial information, whether learned by the Receiving Party before or after the Effective Date.  The terms and conditions of this Agreement are the Confidential Information of each Party and neither Party may disclose this Agreement without the consent of the other Party, except in connection with standard due diligence activities that may be conducted in connection with financing or mergers and acquisitions activities and except to such Party’s financial or legal advisors.  Confidential Information does not include information that is (i) generally available to the public other than through breach of this Agreement; (ii) information known to the Receiving Party prior to the Disclosing Party’s disclosure and which was, to the Receiving Party’s knowledge, rightfully disclosed; or (iii) information developed independently and without use of or reference to the Disclosing Party’s Confidential Information as shown by the Receiving Party’s contemporaneous written business records.

13.2.      Use of Confidential Information.  Each Party shall maintain control of all Confidential Information in a fashion consistent with maintaining its respective confidentiality obligations hereunder.  A Party shall disclose the other Party’s Confidential Information solely to its employees who have a need to know.  Each Party shall return the other Party’s Confidential Information, without keeping copies, upon the expiration or termination of this Agreement or within ten (10) business days following the request of the other Party.  Following such return of Confidential Information, the returning Party shall certify in writing that such Party has returned all Confidential Information and has retained no copies thereof.

13.3.      Legally Compelled Disclosure.  The Receiving Party may disclose Confidential Information to the extent required to do so by law, provided that the Receiving Party: (i) gives the Disclosing Party prior notice (if such notice is not prohibited by law) to afford the Disclosing Party an opportunity to appear, object, and obtain a protective order; (ii) use diligent efforts to limit disclosure and/or obtain confidential treatment or a protective order; and (iii) allow the Disclosing Party to participate in any proceeding in which compelled disclosure is sought.  If such protective order or other remedy is not obtained, or if the Disclosing Party waives compliance with the provisions hereof, the Receiving Party agrees to furnish only those portions of the Confidential Information which it is advised by written opinion of counsel as legally required and to exercise its best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.

13.4.      Equitable Relief.  Each Party acknowledges that the value of the other Party’s Confidential Information is unique and substantial, and it may be impractical or difficult to assess its value in monetary terms.  Accordingly, in the event of an actual or potential violation of this Section 13, the violating Party expressly consents to the enforcement of this Agreement by injunctive relief or specific performance in addition to any and all other remedies available to the non-violating Party.

14.           Non-Disparagement.  Reseller agrees not to disparage nor defame the Face Reality Products, Face Reality, or any Face Reality officers, directors, shareholders or employees, nor otherwise make, endorse, publicize or circulate to any person or entity, any statement or remark that can reasonably be construed as disparaging to them or make any statement concerning any of them which in any way could harm or interfere with Face Reality’s business or interests or reputation.  This includes, but is not limited to, all public commentary and social media platforms.

15.           Limitation of Liability.  EXCEPT FOR A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY (INCLUDING A LOSS OF DATA), AND FOR LIABILITY OWED TO A THIRD PARTY FOR A CLAIM THAT IS SUBJECT TO INDEMNIFICATION UNDER SECTION 9 HEREOF, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES HEREUNDER FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING ANY AND ALL SUCH DAMAGES FROM BUSINESS INTERRUPTION, LOSS OF PROFITS

OR REVENUE, COST OF CAPITAL OR LOSS OF USE OF ANY PROPERTY OR CAPITAL), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 15 SHALL APPLY, REGARDLESS OF WHETHER SUCH CONSEQUENTIAL DAMAGES ARISE FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), BY OPERATION OF LAW, OR OTHERWISE.

16.           General.

16.1.      Notices. All notices of default, breach, renewal or termination of this Agreement required or permitted hereunder (collectively, “Notices”) shall be (i) in writing, (ii) sent to the other Party at the address set forth on the first page of this Agreement (or to such other address a Party identifies through proper notice), or to such different address as such Party may designate in writing on thirty (30) days prior written notice to the other Party, and (iii) transmitted to the other Party via hand-delivery, nationally recognized commercial overnight courier, or United States registered or certified mail, postage prepaid, return receipt requested.  Notices shall be deemed given when actually delivered to the recipient Party or when such recipient Party refuses delivery thereof as shown on the delivery receipt.

16.2.      No Waiver.  No waiver of any provision of this Agreement (or any right or default hereunder) shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced.  The waiver or failure of either Party to exercise in any respect any right provided in this Agreement shall not be deemed a waiver of any other right or remedy to which the Party may be entitled.

16.3.      Relationship of the Parties. The relationship between Face Reality and Reseller is that of vendor and vendee.  Reseller, its agents and employees shall, under no circumstances, be deemed employees, agents or representatives of Face Reality.  Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, franchise, or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any obligation, contract, agreement, or undertaking with any customer or other third party.  Except as provided otherwise in this Agreement, Reseller has the sole discretion to determine Reseller’s methods of operation, Reseller’s accounting practices, the types and amounts of insurance Reseller carries, Reseller’s personnel practices, Reseller’s advertising and promotion, Reseller’s customers, and Reseller’s service areas and methods. The relationship created hereby between the parties is solely that of supplier and Reseller. If any provision of this Agreement is deemed to create a franchise relationship between the parties, then Face Reality may immediately terminate this Agreement without liability to Reseller.

16.4.      Assignment.  Neither Party shall transfer, assign, subcontract or delegate, in whole or in part, any of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld.  Further, Resellers are prohibited from giving, gifting, lending, selling or assigning its Face Reality Account to any other person or entity. Such conduct may result in the immediate termination of this Agreement.

16.5.      Dispute Resolution. The Parties shall follow the dispute resolution process set forth in this Section 16.5 in connection with all disputes, controversies or claims, whether based on contract, tort, statute, fraud, misrepresentation or any other legal theory arising out of or relating to this Agreement or breach of alleged breach of this Agreement, including the validity or enforceability of this dispute resolution process, or any part thereof (collectively “Disputes”).

16.5.1.  Mediation.  The Parties will use all reasonable efforts to settle all Disputes through good faith negotiations, to be commenced by a Party giving written notice to the other Party.  If those attempts fail to resolve the Dispute within thirty (30) days of the date of the initial written demand for negotiation, then the Parties shall use all reasonable efforts in good faith to settle the Dispute by mediation conducted under the Commercial Mediation Rules of the American Arbitration Association, or other such rules agreed to in advance by the parties in writing.  Each Party shall bear its own expenses.  The Parties shall equally share the filing and other administrative expenses of the mediation and the expenses of the mediator.  The Parties shall be represented at the mediation by representatives having final settlement authority over the matter in dispute.

16.5.2.  Arbitration.  If any Dispute is not finally resolved at mediation pursuant to Section 15.5.1, such Dispute shall be decided by neutral, binding arbitration and not by court action, except as provided by California law for judicial review of arbitration proceedings in Contra Costa County, California.  The arbitration shall be conducted in accordance with the rules of the American Arbitration Association.  The Parties may agree in writing to choose different rules and/or arbitrator(s).  In all other respects, the arbitration shall be conducted in accordance with Part III, Title 9, of the California Code of Civil Procedure.  Judgment upon the award rendered by the arbitrator(s) may be entered into in any court having jurisdiction thereof.  Each Party shall have the right to discovery in accordance with the California Code of Civil Procedure, Section 1283.05.  Excluded from arbitration are any actions for specific performance or other injunctive or related relief.  The filing of a judicial action to enable the recording of a notice of pending action for order of attachment, receivership, injunctive relief, or other provisional remedies shall not constitute a waiver of the right to arbitrate under this Section 16.5.

“NOTICE:  BY INITIALING THE SPACE BELOW, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION PROVISIONS OF THIS SECTION 15.5 DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL.  BY INITIALING IN THE SPACE BELOW, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE ARBITRATION PROVISIONS.  IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.  YOUR AGREEMENT TO THIS ARBITRATION IS VOLUNTARY.”

“WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION PROVISION TO NEUTRAL ARBITRATION.”

                        16.5.3.                 The Dispute resolution process set forth in this Section 16.5 shall survive the termination or expiration of this Agreement.

16.6. Cumulative Rights and Remedies.  Each Party’s rights and remedies hereunder shall be cumulative with, and may be exercised without prejudice to, such Party’s other rights and remedies under this Agreement, at law, or in equity.

16.7. Attorney’s Fees and Costs.  If any suit or legal proceeding is brought by either Party to enforce any of the terms of this Agreement or any of its rights hereunder, the prevailing party in such action or proceeding shall be entitled to recover all of its reasonable costs and expenses incurred in such suit or legal proceeding, including reasonable attorneys’ fees.

16.8. Entirety of Agreement. The terms and conditions set forth herein and in the Supplemental Terms constitute the entire agreement between the Parties and supersede any communications or previous agreements with respect to the subject matter of this Agreement.  There are no written or oral understandings directly or indirectly related to this Agreement that are not set forth herein or in the Supplemental Terms.  No change can be made to this Agreement other than in writing and signed by both Parties.

16.9. Governing Law; Venue. This Agreement shall be construed and enforced according to the laws of the State of California without regard to conflicts of law provisions.  Any claim or litigation brought under or relating to this Agreement shall be brought in the United States District Court for the Northern District of California or, only if there is no federal subject matter jurisdiction, the state courts located in Contra Costa County, California, and each Party hereby submits to the exclusive jurisdiction of those court for purposes of any such proceeding.

16.10. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

16.11. Counterparts; Electronic Signatures.  This Agreement may be signed by the Parties on separate counterparts, each of which shall be deemed an original and a single instrument.  The Parties agree that any signatures or initials communicated electronically or by facsimile machine and any facsimile or photocopy or electronic copy of this Agreement including counterparts shall be valid and binding.

EXHIBIT A 

PRODUCT SALES RESTRICTIONS

To purchase Products from Face Reality for resale, the following conditions must be met: (1) you are a licensed skincare professional (Physician, Nurse, Aesthetician, or Cosmetologist); (2) you have a valid, fully-executed Wholesale Supply Agreement with Face Reality (“Supply Agreement”); (3) you are an approved Reseller (“Reseller”) of Face Reality’s Products; and, (4) you have read, understand, and agree to be bound by these terms and agree that these terms are in addition to and supplement the terms of the Supply Agreement.  The term “you” refers to the individual or legal entity, as applicable, identified as the Reseller on the Supply Agreement. If you do not agree to be bound by these terms, you may not access or use the Pro Website or purchase products through the Pro Website.

Not for Resale Products

Products labeled “Professional Use Only” may only be purchased by Reseller for use in Reseller’s skin care business.  Such products may not be resold under any circumstances.  Such products include skin care tools, peels and “back bar sizing.”

Restricted Products

Products containing active ingredients (as set forth below and/or as noted on the product labeling and/or description) are approved for resale in online or web-based environments when home care is being managed by a Face Reality Certified Skin Care Professional.  Specifically, you may only purchase such products for and on behalf of an End-Client for whom you have performed the required consultation and ongoing care.

“Required consultation” shall, at a minimum, include:  (a) correspondence between you and the End-Client via check-in form, via email, via phone, or video; (b) visual evaluation by you, which may be done in-person, by video or photos; and (c) an analysis and consultation utilizing the acne consultation package provided by Face Reality, including: 

•       Initial Skin Analysis

•       Client Questionnaire

•       Acne Consultation

•       Lifestyle Choices Affecting Acne  Skin Analysis, and   a Client Agreement.

“Ongoing care” shall, at a minimum, include ongoing communication and evaluation of the Client’s treatment plan, continued visual skin analysis via video, photo, or in-person services until the End-Client skin issue(s) is/are resolved.

Managed home care requires, at minimum, the following steps:

•       Initial Skin Analysis

•       Continued review of client status; and

•       Ongoing assessments, which may be completed in person or via virtual tools.

By purchasing products with active ingredients, you are certifying that the products are being purchased for clients for whom you have performed or are performing the required consultation and ongoing care.  The following products are subject to these restrictions:

Any Product which contains: vitamin A, benzoyl peroxide, glycolic acid, salicylic acid, mandelic acid or any other alpha or beta hydroxy acids unless specified below.

Serums:	Mandelic 5%/8%/11%/15%
	Glycolic 5%/10%
	Salicylic Gel Serum
	Vitamin A Corrective Serum
	Vitamin A Corrective Serum II
Acne Med:	Acne Med 2.5%/5%/10%
	Acne Med 5 with 3% Sulfur
	Acne Med 10% with 3% Sulfur
Cleansers:	Mandelic Wash
	Mandelic Scrub
	Acne Wash
	Acne Scrub
Toners:	Glycolic-Lactic Toner
	Sal-C Toner

For additional information on what constitutes as compliant:

Unrestricted Products

Products that are not for professional use only or otherwise restricted as set forth above may be resold by Reseller with or without active treatment of the End-Client.

Client Communications

You remain solely responsible for the treatment plans of your End-Clients, and you agree to direct all of your End-Clients to contact you and not Face Reality with any questions regarding their treatment or the products you recommend or supply to them. At no time will Face Reality communicate with your clients regarding their treatment plans or products ordered.  Face Reality will not knowingly respond to any inquiries received by Face Reality from your End-Clients regarding their treatments or use of the products. All such inquiries will be referred by Face Reality to you for response and handling.

Code of Conduct 

We at Face Reality hold ourselves and our skincare professionals to the highest standards of service.  By entering into the Wholesale Supply Agreement, Reseller (inclusive of any employees, officers, directors, associated parties, and affiliates) agrees to abide by Face Reality’s Code of Conduct and the mutual promise of respect and integrity. Reseller agrees to interact with the public, customers, clients, other Acne Experts, and our corporate team in a respectful and honest manner. 

Specifically, 

•          You agree to use appropriate language and a professional tone when interacting with others in person, on social media, and/or via other forms of correspondence. 

•          You agree to serve the best interests of your End-Clients at all times and provide highquality and honest care.

•          You agree not to work outside your scope of practice, as defined by local, state, and federal laws and regulations. 

•          You acknowledge the contraindications and limitations for skin care and refer clients to other health-care professionals when indicated. 

•          You will conduct a thorough consultation and skin analysis for each End-Client and evaluate their health history to rule out contraindications or determine appropriate treatment adaptations. You will abide by all Product restrictions and recommendations from Face Reality, including but not limited those listed on Ex. A and the Supplemental Terms, as updated from time to time.

•          You will demonstrate compassion and respect for others and will act in a professional manner at all times.  Discrimination, harassment and disparagement are not acceptable.  You will not refuse service to any client based on disability, ethnicity, gender identity, marital status, physical build, or sexual orientation; religious, national, or political affiliation.

•          You will keep End User communication and information confidential and will not share client information without the client’s written consent, or unless it is medically necessary or required by law.

•          You will not use recreational drugs or alcohol before or during treatments.

•          You will follow all advertising directions proscribed by Face Reality and will abstain from making any claims concerning Face Reality and its products that exceed what Face Reality has claimed.

•          You will not make material changes or alterations to Face Reality's advertising and promotional materials without Face Reality's prior review and express approval.

•          You will not offer Face Reality products for sale on your own e-commerce website without Face Reality’s pre-approval.

•          You agree to act with honesty and integrity and to present Face Reality and its Products and services in a positive light at all times.

•          You shall not  (i) misuse material, non-public information; (ii) employ any device, scheme or artifice to defraud current or potential advisory clients of Face Reality; (iii) make any untrue statement of a material fact to a current or potential advisory client of Face Reality or omit to state to such client a material fact necessary in order to make the statements made in light of the circumstances under which they are made, not misleading; (iv) engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon current or potential advisory clients of Face Reality; or (v) engage in any manipulative practice with respect to the clients or potential clients of Face Reality.

•          You should comply with all national, state and local laws in conducting your business and marketing, selling and using Face Reality Products and services.

When selling or using Face Reality products, you should ensure that the highest standards of hygiene and strict quality controls are observed.

Violation of our Code of Conduct, like any other part of this Agreement, may result in verbal or written notices, suspension or immediate termination of your Reseller account at Face Reality’s sole discretion.  Without waiving any available legal rights or remedies, Face Reality expressly reserves the right to suspend sales and/or close your account for failure to comply with our policies, terms, and/or conditions at any time with or without prior notice for violations of our Code of Conduct.

California Resellers

The Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Proposition 65 (hereinafter, “Prop 65”), requires businesses to provide warnings to Californians about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm.  These chemicals can be in the products that Californians purchase, in their homes or workplaces, or that are released into the environment. 

Prop 65 requires California to publish a list of chemicals known to cause cancer, birth defects or other reproductive harm. This list was first published in 1987, and must be updated at least once a year. It now includes over 900 chemicals.

Face Reality may require, from time to time, that notices be provided by Reseller to End-Clients if it believes that any Product may be exposing users or more chemicals listed on the Prop 65 List (https://oehha.ca.gov/proposition-65/proposition-65-list).  You expressly acknowledge and agree that you are responsible for the placement and maintenance of warning materials, including warnings for Products sold over the internet, that you receive from Face Reality.  You also agree that you will not modify, alter, remove, deface, destroy, obscure, or otherwise tamper with any Prop 65 warning that may be placed on the Product packaging or labeling, nor will you sell any Product to any End-User if any such Prop 65 warning has been so modified or damaged.  

Further, Reseller agrees to indemnify, defend and hold harmless Face Reality and its officers, directors, employees, shareholders, agents, representatives, affiliates, successors and assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), relating to/arising out or resulting from any failure or refusal by you to display and/or provide any Face Reality-supplied Prop 65 warnings to your End-Clients.