Club EvolusTM Provider Agreement and Terms and Conditions

Club Evolus^TM Provider Agreement and Terms and Conditions

CLUB EVOLUS PROVIDER AGREEMENT

By clicking on and accepting this Agreement, this Club Evolus Provider Agreement (the “Agreement”) by and between Evolus, Inc., a Delaware corporation, maintaining offices at 520 Newport Center Drive, Suite 1200, Newport Beach, CA 92660 (“Company”), and you and your practice, referred to as (“HCP”), agree to and will be bound by this Agreement and the accompanying Schedule A below.

WITNESSETH

WHEREAS, Company is in the business of the research, manufacture, promotion, and sale of prescription injectable products, including Jeuveau^® (the “Product”); and

WHEREAS, Company is offering a subscription model for consumers branded as “Club Evolus” (the “Program”), to receive treatment with the Product; and

WHEREAS, HCP has certain injection experience, knowledge, and unique abilities that Company wishes to utilize in connection with the Program; and

WHEREAS, HCP is willing to participate in the Program and provide injection services to the Company by and to accept such engagement upon the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:

1. SCOPE OF SERVICES

1.1.
Company engages HCP and their practice, and HCP and their practice accepts such engagement, to provide certain Product injection services (“Services”) to Company in connection with the project set forth in the attached Schedule A (“Detailed Project/Service Specifications”), which Schedule is made a part of this Agreement as if fully included herein. Any special or related service which the parties agree are outside the scope of the Services to be provided hereunder shall be covered under a separate written agreement.
1.2.
In performing the Services under this Agreement, HCP shall report and be responsible to the Company employee designated in Schedule A and/or such other person(s) as may be subsequently designated by Company.
1.3.
HCP shall faithfully perform the Services and, upon Company’ request, shall provide such additional assistance to Company in such areas as he/she/it (hereinafter referred to as “he”) is competent. HCP shall also use best efforts and such working time and energy as may be required for the satisfactory performance of the Services in accordance with the requests and instructions from Company.
1.4.
It is expressly understood and agreed that the inability of HCP to render the Services to Company by reason of absences, temporary or permanent illness, disability or incapacity, or for any other cause, shall be deemed a material breach or default hereunder.
1.5.
HCP shall perform the Services under this Agreement in accordance with the terms of this Agreement and all applicable laws, rules, and regulations including but not limited to the federal Physician Self-Referral Law, 42 U.S.C. 1395nn and the regulations promulgated thereunder (the “Stark Law”) and any similar applicable stale physician self-referral laws and regulations, the federal Anti-kickback Statute, 42 U.S.C. l320a-7b(b) and the regulations promulgated thereunder and any similar applicable state anti-kickback laws and regulations, and in compliance with all applicable laws and regulations governing the confidentiality of personal health information, including but not limited to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).

2. COMPENSATION

2.1.
During the term of this Agreement, Company agrees to pay to HCP, as full and complete payment for the performance of the Services during the project, the amount indicated in Schedule A. HCP acknowledges that he is not entitled to any other compensation or remuneration of any kind whatsoever unless specifically indicated in Schedule A.
2.2.
The compensation provided above shall be HCP’s sole form of compensation provided by Company unless covered by a separate written agreement, and HCP waives any right to additional contracts, royalties, additional fees, or any other form of compensation whatsoever from Company.
2.3.
The parties hereto acknowledge that the participation in and compensation paid hereunder has been determined through good faith and arms-length negotiation to be the fair market value of the Services rendered. No amount paid or reimbursed hereunder is intended to be, nor shall it be construed as, an offer or payment made, whether directly or indirectly, to induce the referral of patients, the purchase, lease or order of any item or service from Company.
2.4.
Pharmaceutical manufacturers are required to report expenditures on health care providers to the federal government and certain state governments. Accordingly, the compensation that will be paid to HCP pursuant to this Agreement may be reported to an agency that mandates such reporting.

3. HCP’S REPRESENTATIONS AND OBLIGATIONS

3.1.
HCP represents and warrants to Company that they have the authority to enter into and obligate themselves and their practice to the Services and terms and conditions of this Agreement.
3.2.
HCP represents and warrants to Company that he is not now nor shall he be a party to any other agreement or under any obligation to or restriction by any third party which would prevent HCP from entering into this Agreement or which would adversely affect this Agreement, his performance of the Services or any of the undertakings set forth herein in any manner.
3.3.
HCP agrees to promptly and properly advise Company of all matters coming to his attention that could, in any manner, materially and adversely affect the business or interests of Company. HCP further agrees not to reveal to any outside sources at any time during the term of this Agreement and for five (5) years after the termination of this Agreement, without Company’s prior written consent, any matter that could, in any manner, materially and adversely affect Company’ business, unless required by law to do so.
3.4.
HCP agrees to keep all necessary records relating to the performance of the Services hereunder as Company may direct. HCP further agrees that he will at any time during the term of this Agreement, at Company’ request, and in any event at the termination of this Agreement (regardless of the reason), surrender to Company copies of any and all memoranda, books, papers, letters, notebooks, reports, and any and all other data and information, together with any copies or abstracts thereof, resulting from the performance of the Services hereunder or as may have been provided by Company to HCP.
3.5.
HCP warrants that the provision of any goods and services hereunder shall be in accordance with all applicable federal, state, and local laws, regulations, and ordinances. HCP further warrants that all services shall be in accordance with all applicable medical standards of care and provided by appropriately insured and licensed individuals.

4. CONFIDENTIALITY

4.1.
Notwithstanding any provision in this Agreement to the contrary, HCP (together with his employees and agents) shall hold confidential and shall not, directly or indirectly, disclose, publish, or use for the benefit of any third party or himself, except in carrying out his duties for Company hereunder, any confidential or proprietary information of Company, without first having obtained Company’ written consent to such disclosure or use. “Confidential or proprietary information” shall include, but not be limited to, new product information and relating marketing plans or materials, scientific information, clinical development data, formulations, methods and processes, specifications, know-how and any other intellectual property. In addition, “confidential or proprietary information” may include material, non-public information concerning Company or its affiliates, as well as other companies, and HCP acknowledges, confirms and agrees that he is aware that any trading of securities by a person in possession of any such material, non-public information is subject to regulation and requirements of federal and state securities laws. This restriction shall not apply if the information shall have become public knowledge without fault on the part of HCP (or any of his employees or agents). Notwithstanding any provision in this Agreement to the contrary, this obligation shall survive the termination of this Agreement.
4.2.
HCP and Company acknowledge that in the event of a breach of this Agreement, Company may suffer irreparable damage that may not be fully remedied by monetary damages. HCP and Company therefore agree that Company shall be entitled to seek injunctive relief against any such breach in any court of competent jurisdiction and HCP shall be responsible for all costs associated with such injunctive relief, provided that Company prevails in the action. In the event that Company is successful Company’ rights under this Section 4 shall not in any way be construed to limit or restrict its rights to seek other damages or relief available under this Agreement or applicable law.

5. TERM OF AGREEMENT

5.1.
This Agreement shall be effective for one (1) year from the Effective Date above and then shall automatically continue on a month-to-month basis. After the initial one (1) year term, this Agreement may be terminated by either Party without cause upon ninety (90) days prior written notice. Notwithstanding the foregoing, should the Company elect to discontinue the Program, Company may terminate the Program upon thirty (30) days notice.
5.2.
If HCP breaches any representation made herein or fails to abide by any of the terms of this Agreement, Company shall have the right to terminate this Agreement immediately upon providing written notice to the HCP; provided, that if the Parties agree that the default may be cured by HCP then, this Agreement shall continue in full force and effect as if no default had occurred.

6. INDEPENDENT CONTRACTOR

HCP is retained by Company only for the purposes and to the extent set forth in this Agreement, and his relation to Company shall, during the period or periods of his rendering of the Services, be that of an independent contractor. HCP shall be free to dispose of such portion of his time, energy, and skill as he is not obligated to devote to Company in such manner as he sees fit. HCP shall not be considered under the provisions of this Agreement or otherwise as having any employee status or as being entitled to participate in any benefit plans or arrangements by Company provided to its regular employees.

7. INDEMNIFICATION

7.1.
HCP agrees to defend, indemnify and hold harmless Company and its subsidiaries and affiliates (together with its officers, directors and employees) against any and all losses, claims, demands, suits, actions, judgments, awards, damages, liabilities, costs, reasonable attorneys’ fees (and all actions in respect thereof and any reasonable expenses in giving testimony or furnishing documents in response to a subpoena or otherwise) including the costs of investigating, preparing or defending any such action or claim, whether or not in connection with litigation in which Company is a party, directly or indirectly caused by, relating to, or asserted by a third party, based upon or arising out of (a) HCP’s breach of, or the incorrectness of, any representation, warranty, or covenant of HCP contained in this Agreement; (b) the conduct or operation of the business of HCP; (c) any personal injury or claim of malpractice related to the administration of the Product; (d) the failure of HCP to perform any term, condition, or obligation required by this Agreement to be performed by HCP; or (e) any act or omission by HCP in connection with the performance of his obligations under this Agreement, including failure to comply with any applicable laws or regulations. HCP agrees that Company may compromise or settle any such claim without affecting HCP’s indemnification obligations hereunder.

8. NOTICES

Any notice required or permitted to be given hereunder shall be in writing and shall be (i) delivered personally by hand, (ii) sent by registered or certified mail, or (iii) sent by a recognized qualified overnight delivery service (e.g., Federal Express). All such notices shall be sent postage prepaid to the addresses of each party set forth below or to such other address or addresses as shall be designated in writing in the same manner:
To Company:
520 Newport Center Drive
Suite 1200
Newport Beach, CA 92660
Attn: Legal
To HCP:
At the address set forth in the preamble to this Agreement.

9. PUBLICITY

Either Party may use the name or mark(s) of the other and reference Club Evolus in their website or marketing materials. Any marketing materials created by the HCP that are focused on Club Evolus shall required the review and approval of the Company.

10. AUDIT

HCP shall maintain all patient records in accordance with applicable laws and regulations and in no event for less than three (3) years. The company may audit such records for the sole purpose of verifying participation in and compliance with the Program provisions and guarding against fraudulent activity.

11. MISCELLANEOUS PROVISIONS

11.1.
This Agreement is personal in nature, and HCP shall not, without the prior written consent of Company, assign or transfer this Agreement or any rights or obligations hereunder. Company may assign or transfer this Agreement to a successor or affiliated organization, provided that in the case of any such assignment or transfer, the assignee or transferee shall be bound by the terms and obligations provided in this Agreement.
11.2.
The captions or headings in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement.
11.3.
This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which shall constitute one and the same instrument. The parties may evidence execution of this Agreement by faxing a signed counterpart to the other party, which shall be deemed an original.
11.4.
This Agreement shall be governed by the laws of the State of California; and California shall be the sole and exclusive forum for the resolution of all disputes arising under or relating to this Agreement.
11.5.
The invalidity or unenforceability of any term, provision, clause, or any portion thereof, of this Agreement shall in no way impair or effect the validity or enforceability of any other provision of this Agreement, which remains in full force and effect.
11.6.
No failure or delay by a party to insist upon the strict performance of any term or condition under this Agreement or to exercise any right or remedy available under this Agreement at law or in equity, and no course of dealing between the parties, shall imply or otherwise constitute a waiver of such right or remedy, and no single or partial exercise of any right or remedy by any party will preclude any other or further exercise thereof. All rights and remedies provided in this Agreement are cumulative and not alternative and are in addition to all other available remedies at law or in equity.
11.7.
Should any legal action be commenced in connection with this Agreement, the prevailing party in such action shall be entitled to recover, in addition to court costs, such amount as the court may adjudge as reasonable attorneys’ fees.
11.8.
This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof. This Agreement supersedes all prior understandings, negotiations and discussions, written or oral, of the parties relating to the transactions contemplated by this Agreement. Any waiver, alteration or modification of any of the provisions in this Agreement or any cancellation or replacement of this Agreement shall not be valid unless in writing and signed by the parties.

[END OF AGREEMENT]

SCHEDULE A

CLUB EVOLUS TERMS AND CONDITIONS WITH SERVICE SPECIFICATIONS

1. SPECIFICATION OF SERVICES TO BE RENDERED:

HCP on behalf of themselves, and their Practice, agrees to enroll in the Club Evolus program, the (“Program”). Under the Program, Club Evolus members will receive up to 20 units of Jeuveau^®, once every 90 days, including both the product and administration and injection of the product by a licensed healthcare provider (the “Services”). The decision to receive and method of treatment with Jeuveau is left to the sole discretion of the patient in consultation with the HCP. Similarly, the specific manner or uses in which Jeuveau^® is used is left to the discretion of the patient in consultation with HCP. Any additional treatments or units of Jeuveau above 20 units shall be the financial responsibility of the HCP directly. If a patient cancels Club Evolus membership within the first three months a $100 cancellation fee will apply. Patient will forfeit and eligible treatments or payments upon cancellation. The Club Evolus membership is non-transferable, and payments are non-refundable.

HCP shall participate in the Program and represents, warrants, and covenants to use Jeuveau on all Club Evolus members. Club Evolus members shall automatically be enrolled in the Evolus Rewards consumer reward program for administrative purposes but are not eligible for additional financial incentives offered through the Evolus Rewards program.

HCP agrees to report on and consult with Evolus regarding performance, financial, and other metrics as needed to evaluate the program’s ongoing performance.

2. PROGRAM ELIGIBILITY FOR HCPs:

The Program is open to appropriately licensed HCPs in the United States. Void where prohibited or restricted by law. An account must purchase at least ten (10) vials by an eligible purchase of an Evolus product within the previous six (6) months. All Evolus products purchased to qualify for this Program must be purchased within the United States. All HCP’s that have an Evolus Credit Account must keep their account in current standing, and have an account history of maintaining current standing.

3. FEE AND METHOD OF PAYMENT:

HCP shall not receive financial compensation for participating in the Program or being a participating provider in Club Evolus. The HCP shall be compensated in the form of earning additional vials of Jeuveau, which may be administered in the treatment of non-Program patients. For every patient treated through Club Evolus, the HCP will earn four (4) credits toward a club reward vial. Nine (9) credits = 1 Club Reward Vial. Earned reward vials will be shipped at the beginning of each quarter for vials earned in the prior quarter. Additional marketing support will be provided within Evolus’ own marketing platforms designating the HCP as a Club Evolus participant and directly to patients seeking a program provider within the Club Evolus enrollment process.

You can request your HCP Reward vials through the Evolus Practice App. Any request for ten vials or less will incur the standard shipping fee for orders of that size. HCP Rewards have no independent monetary value and are only earned once all required Benefits are properly redeemed. HCP rewards will expire on a periodic basis, and you are expected to redeem HCP Rewards vials on a timely basis. Please check the Evolus Practice App for reward vial status.

When your patient has a Benefit to be redeemed at your office, they will notify your office, and you will be responsible for redeeming the patient’s Benefit by following the instructions set out in the Program’s application or website. By enrolling a consumer in the Program or redeeming a Benefit you represent and warrant to Evolus that the consumer is an eligible consumer meeting the Consumer Terms. Throughout the redemption process, you will provide truthful and non-misleading information for each Benefit redemption, including, but not limited to: that you have read any required disclosures to the eligible consumer, that you have treated the eligible consumer with Evolus product with the Minimum Units, and that that you have provided the full discount on such treatment to the consumer in the amount of the Benefit. Failure to provide the discount on an treatment with an Evolus Product to an eligible consumer shall not be deemed a redemption of the Benefit and shall not be counted towards any HCP Reward, and it is considered to be fraud . Evolus reserves the right to require proof that a Benefit was properly earned and redeemed by an eligible consumer at its sole discretion.

To compensate you for redeeming the Benefit, Evolus will provide you with Jeuveau^® vials (“HCP Reward”) on the terms set forth herein. HCP shall not receive financial compensation for their participation in the Program or for being a participating provider in the Club Evolus membership program. The HCP shall be compensated in the form of earning additional vials of Jeuveau, which may be administered in the treatment of non-Program patients.

HCP Rewards are not redeemable for cash, transferable, or assignable for any reason, and cannot be sold, traded, bartered, auctioned through an online auction site, or otherwise; any such HCP Rewards may be confiscated by Evolus and/or canceled.

HCP Rewards are only earned on Benefits provided to eligible consumers who receive treatment with Evolus products, including Jeuveau^®, and are provided the full discount on such treatment equivalent to the amount of the Benefit. It shall be a violation of these terms and conditions to provide a Benefit to any individual who does not meet the conditions for a Benefit, who is not treated with Evolus products, or who is not provided the appropriate discount.

4. HCP REGISTRATION:

HCPs will have the option to opt-in to the Program in MyEvolus. In order to participate in the Program, you first must register, then review and agree to the Provider Agreement and these Terms and Conditions. By completing the registration process and participating in the Program, you are deemed to agree to these Terms and Conditions. Your staff or other individuals in your practice may also be permitted to administer or register you in the Program. You agree that we may attribute all use of your account to you and that you are responsible for all activities and activities that occur under your Account, including activities by your staff or other employees, and that each of them shall abide by the Terms and Conditions of this Program. You must follow all steps to register and participate in the Program. Following opt-in, all facilities connected to an HCP account are also automatically opted into the Program.

5. OPT OUT PROCESS:

You may opt out of the Program after the first year of membership by going to the “Account settings” section of MyEvolus or by any other means that Evolus allows.

HCP must provide 90-day notice with intent to end membership
- This can be done within MyEvolus > Account settings> Club Evolus
- Click Opt-out button
- Cancellation request will be submitted, and an Evolus representative will reach out within thirty (30) days to schedule an exit interview with the next steps
- The practice will not be eligible to re-enroll in Club Evolus
Evolus will notify patients within thirty (30) days, informing them that the practice will no longer be offering Club Evolus. The patient will need to select one of the following options by “Date” (ninety (90) days from account opt-out)
1. USE earned treatments & CANCEL their membership:
  - Patient can redeem any earned treatments
    - Must be done prior to canceling
    - Must be completed by “Date”
  - Patient will not be charged on next billing
  - Patient is able to re-enroll
2. CHANGE their Club Evolus practice:
  - Patients who change their practice will continue to be billed and can be treated for their next 20-unit treatment at the newly selected practice
3. IF NO ACTION will result in a forced cancel
  - Patients who fail to take action will result in a forced cancelation.
  - will not be charged on their next billing cycle
  - will have the ability to re-sign up at another practice
Any Earned Club Evolus Reward Vials will expire according to the normal reward vial expiration guidelines.

6. Reservation of Rights

The Program and its Benefits are offered at Evolus’ discretion. Evolus has the right to modify or discontinue, temporarily or permanently, the Program, including the Benefits offered, in whole or in part, for any reason, at our sole discretion. Evolus may, among other options, withdraw, limit, modify, or cancel any Benefit; change the value of any Benefits; increase the requirements for any Benefit; or modify or condition the redemption of Benefits. You agree that Evolus will not be liable to you or any third party for any modification or discontinuance of the Program or any Benefit offered, in whole or in part.

7. Account Security

You will pick a username and password during the registration process (“Account”). You agree to maintain the confidentiality of your Account and not authorize any third party to use it or your Account. You agree that you are fully responsible for all activities that occur under your Account or any other breach of security, and to log out at the end of each session. You agree to provide current, complete, and accurate Account information when you register for an Account. You agree to notify us immediately if you suspect any unauthorized use of your Account or any other breach of security. Depending on your Account type or other criteria, your Account may not have full access to all features or functionality available in our Evolus Practice App or in the Program site. You agree not to attempt to access any restricted features or functionality.

If you lose or forget your username or password, you can e-mail us at customerexperience@evolus.com to have the information reset.

We will not be liable for any loss or damage arising from your failure to comply with these Terms and Conditions.

8. Earning and Redeeming Program Benefits/Minimum Units

Use of Your Information and Personal Information

The information that you provide in connection with the Program will be used by Evolus in connection with the administration of the Program and to provide you information about the Program. Furthermore, Evolus may use any information you provide for Evolus’s internal purposes and to send you information about Evolus and its products and services. Evolus will not share your information with any third party, except as necessary for the administration of the Program or as required by law or legal process. If you do not wish Evolus to send information to you about the Program and Evolus and its products and services, you should not participate in the Program. By participating in the Program, you agree that we may collect and use personal information about you that you provide to us in accordance with our Privacy Policy which can be found at: https://www.evolus.com/privacy-policy/. By using the Program, you agree to be bound by the terms of our Privacy Statement.

9. Fraud, Abuse, or Violation of Terms and Conditions

Fraud or abuse relating to the accrual or redemption of Program Benefits or any violation of the Terms and Conditions may result in forfeiture of your HCP Reward compensation under the Program as well as the termination of your account and ability to participate in the Program in the future. IT WILL BE CONSIDERED FRAUDULENT AND A VIOLATION OF THESE TERMS AND CONDITIONS FOR YOU TO SEEK COMPENSATION FOR REDEEMING BENEFITS THAT WERE NOT PROPERLY EARNED OR REDEEMED.

10. Limitation of Liability; Release

Evolus and its affiliates and their respective representatives, agents, directors, officers, shareholders, and employees (“Evolus Entities”) are not responsible for and shall not be liable for: (i) late, lost, delayed, damaged, misdirected, inaccurate, incomplete, or unintelligible registration entries; (ii) telephone, electronic, hardware or software program, network, Internet, computer or other malfunctions, failures, or difficulties of any kind, whether human or technical; (iii) failed, incomplete, garbled, or delayed computer transmissions; (iv) any condition caused by events beyond our control; (v) any injuries, losses, or damages of any kind arising in connection with or as a result of the benefit or acceptance, delivery or failure to timely deliver, possession, or use of the benefit, or from participation in the Program; or (vi) any printing or typographical errors in any materials associated with the Program. Further, in no event shall the Evolus Entities be liable for any damages of any kind or nature, including but not limited to, direct, indirect, incidental, consequential, exemplary, special (including loss or profit), punitive, or other damages arising from or in connection with the existence or use of this site or any such dispute, regardless of whether any of the Evolus Entities has been advised as to the possibility of such damages. You accept all responsibility for, and hereby indemnify and hold harmless the Evolus Entities from and against, any actions taken by any user authorized to use your account, including, but not limited to, accrual of Benefits, redemption of Benefits, and disclosure of passwords to third parties.

11. Violation of the Terms

You understand and agree that if we determine that you have violated our Terms and Conditions, then in our sole discretion, and without prior notice, we may take actions including, but not limited to (1) terminating your access to the Program, (2) voiding any accrued HCP Rewards, (3) confiscation of any HCP Rewards, and/or (4) deactivating or deleting your account. Upon written request to you we may require an HCP repay the value, as determined by Evolus, of any HCP Reward that Evolus, in its sole discretion, determines was rewarded as a result of fraud, abuse or a violation of our Terms and Conditions. HCPs whose accounts have been terminated shall not be eligible to participate in the Program and shall not be eligible to enroll new accounts without the express written consent of Evolus.

12. Proprietary Rights

You should assume that all contents of this site are copyrighted unless otherwise noted and may not be used except as provided herein and without our express written permission. Except as expressly provided herein, nothing contained herein shall be construed as conferring any license or right under any Evolus copyright. All product names, logos, and service marks displayed on this site that are identified by ® or ™ or appearing in type form different from that of the surrounding text (collectively, the “Trademarks”) are registered or unregistered trademarks owned by or licensed to Evolus or our Affiliates unless otherwise identified as being owned by another entity. Nothing contained herein shall be construed as conferring by implication, estoppel, or otherwise, any license or right, either express or implied, under any patent or Trademark of Evolus or any third party. No use of any Trademark may be made without our prior written authorization.

13. Governing Law & Disputes

These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California without regard to choice of law principles. You agree that any dispute related to the Program shall be submitted for resolution exclusively to the jurisdiction of the United States District Court for the Southern District of California. All applicable federal, state, and local laws and regulations apply. The invalidity or unenforceability of any provisions of these Terms and Conditions shall not affect the validity or enforceability of any provision. In the event that any provision of these Terms and Conditions is found to be invalid or unenforceable, these Terms and Conditions shall be construed in accordance with their terms as if the invalid or unenforceable provision was not contained therein.

For Jeuveau^® full Prescribing Information, including BOXED WARNING, and Medication Guide, visit evolus.com.

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Club Evolus^TM Provider Agreement and Terms and Conditions

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