Terms and Conditions
DENTORIUM PRODUCTS CO. INC.
Terms and Conditions of Sale
ALL SALES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS, UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING:
1. GENERAL
Dentorium Products Co. Inc. ("Dentorium") hereby offers for sale to the Purchaser [named in the order] ("Purchaser") the products listed [therein] (the "Products") on the express condition that Purchaser agrees to be bound by the terms and conditions set forth herein. If the terms and conditions in this Agreement differ from the terms of Purchaser's offer, this document shall be construed as a counter offer and shall not be effective as an acceptance of Purchaser's document. Purchaser's receipt of Products [or Dentorium's commencement of the services provided hereunder] will constitute Purchaser's acceptance of this Agreement. This is the complete and exclusive statement of the contract between Dentorium and Purchaser with respect to Purchaser's purchase of the Products. No waiver, amendment or other change of the terms contained herein shall be binding on Dentorium unless in writing and signed by Dentorium and Purchaser. Notwithstanding the foregoing, Dentorium reserves the right to make changes to these Terms and Conditions of Sale at any time [by posting such changes here], and such changes shall apply to orders of Products made by Purchaser thereafter. Dentorium's failure to object to terms contained in any communication from Purchaser will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of Dentorium. Dentorium reserves the right to reject any order for any reason. By purchasing products from Dentorium, Purchaser agrees that it is purchasing the Products only for its own use and not for purposes of resale. Products purchased pursuant to these Terms and Conditions may not be sold or transferred to any person or entity for purposes of resale. Dentorium reserves the right to take any action it deems necessary to address Purchaser’s violation of these terms, including, but not limited to, the suspension of Purchaser’s ability to purchase Products.
2. PRICE
All prices published by Dentorium or quoted by Dentorium's representatives may be changed at any time without notice. All prices quoted by Dentorium or Dentorium's representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by Dentorium or, if no price has been specified or quoted, will be Dentorium's price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Dentorium's original price quotation. List prices may vary from the price displayed on the website for certain products.
3. TAXES AND OTHER CHARGES
Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must be paid by Purchaser. If Purchaser claims any exemption, Purchaser must provide a valid, signed certificate or letter of exemption for each relevant jurisdiction.
4. TERMS OF PAYMENT
Dentorium may invoice Purchaser upon shipment for the price and all other charges payable by Purchaser in accordance with the applicable purchase order. If no payment terms are stated on the purchase order, payment shall be net thirty (30) days from the date of invoice. If Purchaser fails to pay any amounts when due, Purchaser shall pay Dentorium interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by Dentorium in collecting such overdue amounts or otherwise enforcing Dentorium's rights hereunder. Dentorium reserves the right to require from Purchaser full or partial payment in advance, or other security that is satisfactory to Dentorium, at any time that Dentorium believes in good faith that Purchaser's financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars(*1).
5. DELIVERY; CANCELLATION OR CHANGES BY PURCHASER
The Products will be shipped to the destination specified by Purchaser, F.O.B. Dentorium's shipping point. Dentorium will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Dentorium reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Purchaser fails to make any payment to Dentorium when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Dentorium will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Dentorium's reasonable control. In the event of a delay due to any cause beyond Dentorium's reasonable control, Dentorium reserves the right to terminate the order or any part of the order so affected, or to reschedule shipment within a reasonable period of time, and Purchaser will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Purchaser's control may be placed in storage by Dentorium at Purchaser's risk and expense and for Purchaser's account. Orders in process may be canceled by Purchaser only with Dentorium's written consent and upon payment of Dentorium's cancellation charges. Orders in process may not be changed by Purchaser except with Dentorium's written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore. Credit will not be allowed for Products returned without the prior written consent of Dentorium.
6. TITLE AND RISK OF LOSS
Notwithstanding the trade terms indicated above and subject to Dentorium's right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Purchaser upon delivery of possession of the Products by Dentorium to the carrier; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with Dentorium or the licensor(s) thereof, as the case may be.
7. WARRANTY
Dentorium warrants that the Products will operate or perform substantially in conformance with Dentorium's published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended storage and usage by properly trained personnel, for the duration of the manufacturer’s warranty period set forth in the product documentation, published specifications or package inserts. If a manufacturer’s warranty period is not specified in the product documentation, published specifications or package inserts, the warranty period shall be one (1) year from the date of shipment to Purchaser for equipment, and the earlier of any stated expiry dates or ninety (90) days for all other products (the "Warranty Period"). In the case of laboratory chemical products, retest dates on Products have no effect on the warranty period. Dentorium agrees during the Warranty Period, to repair or replace, at Dentorium's option, defective Products so as to cause the same to operate in substantial conformance with said published specifications; provided that Purchaser shall (a) promptly notify Dentorium in writing upon the discovery of any defect, which notice shall include the product model and serial number (if applicable) and details of the warranty claim; and (b) after Dentorium's review, Dentorium will provide Purchaser with service data and/or a Return Material Authorization ("RMA"), which may include biohazard decontamination procedures and other product-specific handling instructions(*2), then, if applicable, Purchaser may return the defective Products to Dentorium with all costs prepaid by Purchaser. Replacement parts may be new or refurbished, at the election of Dentorium. All replaced parts shall become the property of Dentorium. Shipment to Purchaser of repaired or replacement Products shall be made in accordance with the Delivery provisions of the Dentorium's Terms and Conditions of Sale. Consumables are expressly excluded from this warranty. If Dentorium elects to repair defective medical device instruments, Dentorium may, in its sole discretion, provide a replacement loaner instrument to Purchaser as necessary for use while the instruments are being repaired.
[Notwithstanding the foregoing, Products supplied by Dentorium that are obtained by Dentorium from an original manufacturer or third-party supplier are not warranted by Dentorium and Dentorium disclaims all warranties associated with the accuracy of any original manufacturer or third-party supplier Product information, but Dentorium agrees to assign to Purchaser any warranty rights in such Product that Dentorium may have from the original manufacturer or third-party supplier, to the extent such assignment is allowed by such original manufacturer or third-party supplier.](*3)
In no event shall Dentorium have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Purchaser, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage and handling of the Products or (vii) use of the Products in combination with equipment or software not supplied by Dentorium. If Dentorium determines that Products for which Purchaser has requested warranty services are not covered by the warranty hereunder, Purchaser shall pay or reimburse Dentorium for all costs of investigating and responding to such request at Dentorium's then prevailing time and materials rates. If Dentorium provides repair services or replacement parts that are not covered by this warranty, Purchaser shall pay Dentorium therefor at Dentorium's then prevailing time and materials rates. ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN DENTORIUM WITHOUT DENTORIUM'S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY DENTORIUM, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.
THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT TO REPAIR OR REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF PURCHASER IN THE EVENT OF A DEFECTIVE PRODUCT. EXCEPT AS EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT, DENTORIUM DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. DENTORIUM DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
8. INDEMNIFICATION
[Purchaser shall indemnify, defend, hold harmless Dentorium, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Purchaser, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Dentorium where the Product itself would not be infringing; (iii) Dentorium's compliance with designs, specifications or instructions supplied to Dentorium by Purchaser; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Dentorium without Dentorium's prior written approval.]
9. LIMITATION OF LIABILITY
Notwithstanding anything to the contrary contained herein, the liability of Dentorium under these terms and conditions (whether by reason of breach of contract, tort, indemnification, or otherwise, but excluding liability of Dentorium for breach of warranty (the sole remedy for which shall be as provided under section 7 above)) shall not exceed an amount equal to the lesser of (a) the total purchase price theretofore paid by purchaser to Dentorium with respect to the product(s) giving rise to such liability or (b) the amount shall not exceed the total purchase price of the relevant products. Notwithstanding anything to the contrary contained herein, in no event shall Dentorium be liable for any indirect, special, consequential or incidental damages (including without limitation damages for loss of use of facilities or equipment, loss of revenue, loss of data, loss of profits or loss of goodwill), regardless of whether Dentorium (a) has been informed of the possibility of such damages or (b) is negligent.
10. EXPORT RESTRICTIONS(*4)
Purchaser acknowledges that each Product and any related [software and](*5) technology, including technical information supplied by Dentorium or contained in documents (collectively "Items"), is subject to export controls of the U.S. government. The export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (the "EAR"), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Purchaser shall comply with the EAR and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. Purchaser shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (i) export or re-export any Item, or (ii) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Purchaser shall cooperate fully with Dentorium in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Dentorium harmless from, or in connection with, any violation of this Section by Purchaser or its employees, consultants, agents, or customers.
11. AUTHORIZED USE OF PRODUCTS
Products sold by Dentorium are intended solely for the use(s) specified by the manufacturer and are not to be used for any other purposes. Purchaser warrants and represents that it will properly test, use, qualify, and/or validate each Product for intended use, and, to the extent authorized, manufacture and market any final articles made from Dentorium’s Products in accordance with the practices of a reasonable person who is an expert in the field, and in strict compliance with all applicable national, state and local laws and regulations. Purchaser acknowledges and understands that the purchase of Products only conveys to Purchaser the non-transferable right for only the Purchaser to use the Products purchased in compliance with the applicable manufacturer's Published Restricted User Statement, Limited User Statement, Limited License, if any. All such statements or licenses are incorporated by reference herein and in any Order as if set forth therein in their entirety. Purchaser is solely responsible for conducting any research necessary to learn the hazards involved for any of its intended uses of the Products purchased from Dentorium and to properly warn its customers, employees and other personnel who may be exposed to such Products of any risks involved in using or handling the Products.](*6)
12. MISCELLANEOUS
(a) Purchaser may not delegate any duties nor assign any rights or claims hereunder without Dentorium's prior written consent, and any such attempted delegation or assignment shall be void.
(b) The rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York, without reference to its choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in New York County, New York, USA, in any action arising out of or relating to this Agreement and waives any other venue to which it may be entitled by domicile or otherwise.
(c) In the event of any legal proceeding between the Dentorium and Purchaser relating to this Agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Any action arising under this Agreement must be brought within one (1) year from the date that the cause of action arose.
(d) The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
(e) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain.
(f) Dentorium's failure to enforce, or Dentorium's waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.
(g) Unless otherwise expressly stated on the Product or in the documentation accompanying the Product, the Product is intended for research only and is not to be used for any other purpose.
(h) Purchaser agrees that all pricing, discounts and technical information that Dentorium provides to Purchaser are the confidential and proprietary information of Dentorium. Purchaser agrees to (1) keep such information confidential and not disclose such information to any third party, and (2) use such information solely for Purchaser's internal purposes and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public.
(i) Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other.
13. ACCEPTABLE PAYMENT METHODS (*7)
Credit Card Payments and Direct Electronic Bank Transfers are the acceptable means of payment.
14. MEDICARE/MEDICAID REPORTING REQUIREMENTS (*8)
If Purchaser is a recipient of Medicare/Medicaid funds, Purchaser acknowledges that it has been informed of and agrees to fully and accurately account for, and report on its applicable cost report, the total value of any discount, rebate or other compensation paid hereunder in a way that complies with all applicable federal, state and local laws and regulations which establish "Safe Harbor" for discounts. Purchaser shall make written request to Dentorium in the event Purchaser requires additional information from Dentorium in order to meet its reporting requirements. Purchaser acknowledges that agreement to such reporting requirement was a condition precedent to Dentorium's agreement to provide Products and that Dentorium would not have entered into this Agreement had Purchaser not agreed to comply with such obligations.
(*1) TBD – If all purchases are pre-paid this will be adjusted; also confirm currency.
(*2) Confirm whether applicable. If not, remove.
(*3) Delete if not applicable.
(*4) Confirm whether applicable.
(*5) If Software is part of any Products sold by Dentorium then include plus include separate software paragraph.
(*6) Tailor or delete, as applicable.
(*7) Revise to conform to practice.
(*8) Confirm whether applicable.