Waiver Consent and Release – veterinarian – Form

This Release, Waiver, Covenant not to Sue, Informed Consent, and Assumption of Risk (this “Release”) is given by [___________________________________________________] [print name], an individual (“Veterinarian”), for himself/herself, and on behalf of each of other Releasor to and for the benefit of Tropoflex, Inc., a Texas corporation, (“Company”) and each other Releasee. The terms “Releasor” and “Releasee” are defined below.

WHEREAS, Company manufactures, sells and distributes a patented injectable composition with the tradename of “TropoFlex™” (“Product”);

WHEREAS, Veterinarian is a licensed veterinarian in the State of [___________________________________] (the “State”) and desires to administer the Product to animals who are or may become under Veterinarian’s care and who are under Veterinarian’s medical care at the time the Product is administered (the administration of the Product by Veterinarian to an animal, the “Procedure”, and such animals, whether one or more, the “Animals”); and

WHEREAS, in partial consideration for Veterinarian’s execution and delivery of this Release to Company and Veterinarian’s compliance with the terms hereof, Company has agreed to provide Product to Veterinarian for Veterinarian to administer to the Animals.

Licensed Veterinarian. Veterinarian represents and warrants to Company and covenants to Company that Veterinarian (a) is and at all times while performing the Procedure will be licensed to practice veterinarian medicine in the State and such license is in good standing with all applicable regulatory authorities, (b) will maintain all licenses and accreditations necessary for Veterinarian to practice veterinarian medicine in the State and perform the Procedure, and (c) will at all times perform the Procedure in compliance with all applicable laws and regulations.

Informed Consent; Assumption of the Risks. Veterinarian

  • acknowledges he/she has been informed, understands and acknowledges that the Product has not been approved by the United States Food and Drug Administration (the “FDA”) to diagnose treat, cure, or prevent disease, or to affect the structure or function of the body, and no claims about the Product have been evaluated by the FDA or made by Company; and
  • represents and warrants to Company that Veterinarian understands and accepts that use of the Product is subject to risks, both known and unknown, and may cause (i) injuries (including bodily injury), infections, swelling, irritation, redness, pain, illness, exposure to pathogens and other biological and chemical hazards, disability or death, (ii) property damage, or (iii) other personal or financial injury (any injury related to, arising out of, resulting from, or attributable to the Procedure or the use of the Product, including the items in this subsection (b), collectively, “Injuries”, and individually, an “Injury”); and
  • understands that the Procedure aims to improve the regeneration of collagen in damaged tissues, however animals responses to the Procedure have varied and no guarantee of improvement can be made; and
  • agrees that Company has answered, completely and to Veterinarian’s satisfaction, all of Veterinarian’s questions regarding the Product and the Procedure; and
  • with knowledge of and after considering the foregoing, requests that Company provide Product to Veterinarian for Veterinarian to perform the Procedure on the Animals; and
  • represents and warrants to Company, and covenants with Company, that the Procedure will only be performed on Animals under the medical care of Veterinarian at such time and for whom Veterinarian deems the Procedure to be appropriate.

Waiver, Release and Covenant Not to Sue. VETERINARIAN, ON BEHALF OF HIMSELF/HERSELF AND FOR EACH OTHER RELEASOR, HEREBY EXPRESSLY WAIVES AND RELEASES ANY AND ALL CLAIMS, NOW KNOWN OR HEREAFTER KNOWN, AGAINST COMPANY OR ANY OTHER RELEASEE, ON ACCOUNT OF ANY INJURY (DEFINED ABOVE), WHETHER ARISING OUT OF THE ORDINARY NEGLIGENCE OF COMPANY OR ANY OTHER RELEASEE OR OTHERWISE. VETERINARIAN, FOR HIMSELF/HERSELF AND ALL OTHER RELEASORS, COVENANTS NOT TO MAKE OR BRING ANY SUCH CLAIM AGAINST COMPANY OR ANY OTHER RELEASEE, AND FOREVER RELEASES AND DISCHARGES COMPANY AND EACH OTHER RELEASEE FROM LIABILITY UNDER SUCH CLAIMS AND FOR SUCH CLAIMS. THIS WAIVER AND RELEASE DOES NOT EXTEND TO CLAIMS FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR ANY OTHER LIABILITIES THAT TEXAS LAW DOES NOT PERMIT TO BE RELEASED BY AGREEMENT. VETERINARIAN UNDERSTANDS AND AGREES THAT THIS release IS a LEGALLY BINDING document AND WILL PRECLUDE VETERINARIAN AND EACH OTHER RELEASOR FROM RECOVERING DAMAGES FROM company or ANY other RELEASEE.

Disclaimer of Representations and Warranties. Veterinarian acknowledges and agrees that neither Company nor any other Releasee has made any representation, warranty or assurance regarding (a) the results of the Procedure, (b) the use of the Product, or (c) reactions to, including adverse effects from, the Procedure or use of the Product. Without limiting the foregoing AND NOTWITHSTANDING ANY PROVISION HEREOF, VETERINARIAN ACKNOWLEDGEs AND AGREEs THAT (A) THE PRODUCT IS PROVIDED “AS IS”, “WHERE IS”, AND “WITH ALL FAULTS” AND (B) COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, INCLUDING (1) WITH RESPECT TO THE PRODUCT OR THE PROCEDURE; (2) ANY WARRANTY OF MERCHANTABILITY; OR (3) ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY WAIVED. VETERINARIAN ACKNOWLEDGES AND AGREES THAT HE/SHE HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY OR COVENANT MADE BY COMPANY OR ANY OTHER PERSON OR ENTITY and will not rely on any REPRESENTATION, WARRANTY OR COVENANT MADE BY COMPANY OR ANY OTHER PERSON OR ENTITY with respect to the product or the procedure.

Use of Product. Veterinarian agrees and covenants to Company that (a) no person other than Veterinarian will administer the Product, (b) Veterinarian will administer the Product only to the Animals and only in the State, (c) Veterinarian will not distribute the Product or provide the Product to any person or entity, (d) Veterinarian will prepare and maintain for at least five years detailed written records of each use of the Product, such records to include, without limitation, the identity of the Animal on which the Product is used (in at least sufficient detail that the Animal can be identified and located by Company and Veterinarian thereafter), the name and address of the owner of the Animal, the date and address where the Product was administered, reactions of the Animal (including positive or negative reactions), any follow-up care provided to the Animal relating to or resulting from the Procedure or the Product, and such other information as Company from time to time may request, (e) Veterinarian will provide to Company each month (on or before the 5th day of each month) the Records from the then-prior month, (f) prior to administering the Product to an Animal, Veterinarian will obtain an Owner Release (defined below) from the owner of the Animal, (g) at the time Veterinarian provides the Records for the prior month to Company, provide Company with an executed copy of each Owner Release not previously provided to Company, including all Owner Releases executed since the last date Veterinarian provided the Records, (h) Veterinarian will cease administering Product immediately if so instructed by Company, and (i) upon the request of Company return to Company all Product in Veterinarian’s possession and upon receipt of such Product, Company will refund to Veterinarian the purchase price, if any, paid by Veterinarian for such Product. An “Owner Release” is an agreement in form and substance acceptable to Company. The current form of the Owner Release is attached hereto as Exhibit A. Company may modify the Owner Release at any time upon written notice to Veterinarian and Veterinarian agrees he/she will not administer Product to an animal unless the owner of such animal has executed and delivered to Veterinarian for delivery to Company the then-most current form of the Owner Release. Veterinarian also agrees to obtain a new Owner Release from the Animal’s owner if the Owner Release has been updated since the last time the Animal was administered the Product.

Insurance. At all times while Veterinarian has any Product, Veterinarian, at his/her sole expense, shall provide and maintain professional liability insurance insuring Veterinarian for professional errors, omissions, negligence, incompetence, license defense, and malfeasance in an amount no less than $1,000,000 per occurrence /$2,000,000 in the aggregate (the “Liability Insurance“). The Liability Insurance shall be in a form, and with companies reasonably satisfactory to Company, including, the policy shall be primary and non-contributory with insurance carried by Company and the insurer’s agreement to give Company 30 days’ prior written notice before cancellation or material change of the Liability Insurance. In connection with the execution and delivery of this Release, Veterinarian is providing Company with insurance certificates accurately evidencing that the Liability Insurance is in effect on the date hereof. Veterinarian shall provide Company with insurance certificates accurately evidencing the renewal of the Liability Insurance required under this Release promptly upon such renewal. Additionally, Veterinarian, upon request by Company, shall promptly provide Company with insurance certificates evidencing that the insurance coverage required under this Release is in effect at such time.

Indemnity. Veterinarian agrees to defend, indemnify, and hold harmless Company and each other Releasee against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs incurred by Company or any other Releasee, related to, arising out of or resulting from (a) enforcing any provision of this Release, including the waiver, release and covenant not to sue set forth herein, (b) Veterinarian’s breach of any provision of this Release, or (c) any claim, including claims of third parties, related to, arising out of, resulting from, or attributable to the Procedure or the use of the Product, including any claim related to Veterinarian’s own negligence or the ordinary negligence of Company or another Releasee.

Entire Release; Conflicts. This Release is in addition to and is not intended to replace any other agreements related to liability for Injuries that Veterinarian executed in the past or may execute in the future. To the extent that there is any conflict between this Release and any such other agreement, Veterinarian agrees that the agreement that provides the greatest protection to Company or the other Releasees against liability and the most expansive release of claims and assumption of risk allowed by law shall govern the matter. Subject to the immediately preceding sentence, this Release (a) constitutes the sole and entire agreement (i) by Veterinarian or (ii) between Company and Veterinarian, in each case with respect to the subject matter contained herein, and (b) supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

Definitions: Releasor and Releasee; Binding on Releasors. For purposes of the Release, (a) “Releasor” means Veterinarian and each of Veterinarian’s heirs, personal representatives, executors, next of kin, spouses, minor children, employees, agents, affiliates, successors and assigns; and (b) “Releasee” means (i) Company, (ii) Yellowstone Naturals LLC, a Wyoming limited liability company , (iii) manufacturers or distributors of the Product (or any portion thereof or any ingredient therein) and (iv) the officers (elected or otherwise), managers, directors (and similar persons), owners, employees, agents, affiliates, subsidiaries, licensors, licensees, successors and assigns of each of the foregoing. Veterinarian represents and warrants to and covenants to Company that the provisions of this Release are and will be binding on and enforceable against each Releasor.

Governing Law; Venue. All matters arising out of or relating to this Release shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule whether of the State of Texas or any other jurisdiction. Any claim or cause of action arising under this Release may be brought only in the federal and state courts located in Bexar County, Texas and Veterinarian, for himself/herself and each other Releasor, hereby consents to the exclusive jurisdiction of such courts.

Miscellaneous. This Release may not be amended, modified, or terminated and no provision hereof may be waived (including by action or lack of action) without the written consent of Company. If any term or provision of this Release is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Release or invalidate or render unenforceable such term or provision in any other jurisdiction. If Veterinarian breaches any provision of this Release, Veterinarian agrees to immediately notify Company in writing of such breach, such notice to be provided to Company at the following address: info@tropoflexinc.com and such notice will be deemed given only when Company acknowledges its receipt to Veterinarian. Company may change its address for notices upon notice to Owner. Veterinarian may not assign any right or obligation under this Release without the prior written consent of Company. Subject to the preceding sentence, this Release is binding on Veterinarian, each other Releasor and their respective successors and assigns and shall inure to the benefit Company, each other Releasee and their respective successors and assigns. Veterinarian agrees to execute and deliver, or cause to be executed and delivered, such further documents and to do all such things and acts as Company may reasonably request in furtherance of the provisions and purposes of this Release and the transactions contemplated hereby. Veterinarian further agrees that this Release is intended to be as broad and inclusive as is permitted by applicable law, including the laws of the State of Texas. When used in this Release, the term (a) “including” means “including, without limitation” or “including, but not limited to”, and (b) “or” has the inclusive meaning represented by the term “and/or”, and (c) the singular shall include the plural and vice versa. All notices to Veterinarian pursuant to this Agreement shall be provided to the email address for Veterinarian provided below (or if no email address is provided below to any address for Veterinarian in Company’s records at the time the notice is given) and shall be deemed given upon being sent to such address.

Veterinarian acknowledges and agrees that (a) he/she has read and understands the terms of this Release, (b) has, if Veterinarian so desired, (i) had counsel of his/her choice review this Release and advise him/her on the terms of this Release or (ii) voluntarily declined such representation and advice, and (c) he/she is freely and voluntarily executing and delivering this Release. 

SIGNATURE PAGE TO RELEASE, WAIVER, COVENANT NOT TO SUE, informed CONSENT, AND ASSUMPTION OF RISK AGREEMENT