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TERMS AND CONDITIONS OF SALE

AMERICAN ORTHODONTICS CORPORATION

TERMS AND CONDITIONS OF SALE

 

1.                   ACCEPTANCE.  These American Orthodontics Corporation (“AOC”) Terms and Conditions of Sales shall govern all orders placed by buyer (“Buyer”) for products (“Products”) from AOC.  All orders for Products are subject to acceptance by AOC at its headquarters in Sheboygan, Wisconsin.  BUYER’S ORDER IS ACCEPTED ONLY ON THE TERMS AND CONDITIONS CONTAINED HEREIN AND THE PROVISIONS OF ANY PURCHASE ORDER OR OTHER WRITING SUBMITTED BY BUYER WHICH ARE INCONSISTENT HEREWITH SHALL NOT CONSTITUTE A PART HEREOF.  These Terms and Conditions of Sale shall constitute the entire understanding and agreement between AOC and Buyer with regard to the Products shipped hereunder.  Any additional or different terms proposed by Buyer are rejected and shall be deemed a material alteration hereof, unless such terms are in writing and signed by a duly authorized representative of both AOC and Buyer.  In the event of any ambiguity or conflict between or among these Terms and Conditions of Sale and any other agreement or writing signed by AOC, these Terms and Conditions of Sale shall govern unless expressly provided otherwise in such agreement. 

2.                   IMPRESSIONS.  AOC requires one silicon impression for each arch that is to be bonded.  In the case of opposing arches, a plaster model is sufficient.  A complete description of AOC’s impression requirements can be found at www.myharmonysmile.com and such requirements are incorporated herein by reference.  Buyer shall be responsible for and shall pay all freight charges associated with the shipment of impressions/models to AOC; provided, that, upon request, AOC will provide Buyer with a pre-paid shipping container for such impressions/models and the freight costs therefor shall be added to AOC’s invoice and payable together with payment for the Products purchased.  If products purchased by Buyer hereunder are intended for the treatment of one arch only, Buyer must inform AOC if any treatment is planned for the opposing arch.  Buyer acknowledges that all impressions and models provided to AOC shall be disinfected prior to delivery to AOC.  BUYER FURTHER ACKNOWLEDGES THAT PRODUCTS PROVIDED BY AOC PURSUANT HERETO ARE NOT CLASSIFIED AS STERILE. 

3.                   PRICE.  Products are invoiced at prices in effect at the time of the order and AOC’s prices are subject to change without notice.  Buyer understands that the invoice amount does not include any sales, use or value-added taxes, or other taxes, charges or duties applicable to the sales of Products, including but not limited to, boxing, packing and shipping, which AOC may be required to pay in connection with the sale and/or transportation of the Products hereunder.  Buyer agrees to promptly reimburse AOC in full for such taxes and charges. 

4.                   DELIVERY.  Buyer shall be responsible for and shall pay all freight charges.  All Products will be shipped by carrier(s) of AOC’s choice.  Risk of loss shall pass to Buyer at the time Products are delivered to a carrier at AOC’s headquarters in Sheboygan, Wisconsin and Buyer shall be solely responsible for procuring commercially reasonable insurance coverage for the Products after such delivery for the benefit of AOC and Buyer.  Buyer shall be responsible for filing any claims against such insurers and carriers.  Title to Products will remain with AOC until full payment therefor is received by AOC.  Shipping dates are estimates only and AOC will use every reasonable effort to meet such estimated shipping dates; provided, that if AOC is unable to meet any shipping date, Buyer has no claim for damages resulting from any such delay in delivery. 

5.                   FORCE MAJEURE.  AOC shall not be liable for any delay, failure of delivery or other nonperformance attributable to any circumstances beyond its reasonable control, including, without limitation, any nonperformance or delays because of breakdowns in production equipment or unexpected production difficulties, strikes, work stoppages, unavailability of materials, accidents, shut-down or delay of suppliers, government orders, fires, explosions, weather or other acts of God, embargoes, inability to secure transportation facilities, or contingencies arising out of national defense activities, war, terrorism or emergency conditions. 

6.                   PAYMENT.  Unless otherwise stated in the invoice, payments must be made in U.S. Dollars within 30 days of the date of invoice.  All orders are subject to the approval of AOC’s credit department and AOC may require full or partial payment in advance.  Overdue invoices are subject to collection and carry a service charge of 1.5% per month or the maximum legally allowable rate.  Buyer shall pay AOC all legal costs and expenses, including attorneys’ fees, incurred by AOC in connection with its collection of Buyer’s overdue account.

7.                   EXCLUSIVE WARRANTY AND LIABILITY LIMITATION.  Buyer acknowledges that all Products are custom made exclusively for Buyer in accordance with specifications provided by Buyer.  AOC warrants to Buyer that Products sold to Buyer will, at the time of shipment from AOC, conform to the specifications provided by Buyer; provided, that such Products shall be suitable only for the geometry of the teeth represented by the impressions and/or models provided by Buyer.  Notwithstanding the foregoing, Buyer acknowledges that AOC shall not be liable for defects to Products resulting from improper transport, storage or handling, ordinary wear and tear, the failure to utilize the Products in accordance with the instructions provided by AOC or for the duration of any treatment, the negligence or willful misconduct of Buyer, or dissatisfaction of the patient with the results from Products manufactured in accordance with Buyer’s specifications.  If any Products do not conform to the foregoing warranty and if Buyer reports such nonconformity to AOC within the three (3) day period set forth below, AOC shall, at its option, either replace the nonconforming Product without cost to Buyer or refund to Buyer the purchase price of such nonconforming Product.  Such replacement or refund shall be AOC’s sole obligation with respect to any warranty or other claim relating to any Product.   Buyer shall inspect all Products promptly upon receipt and shall give written notice to AOC of any claims as soon as practicable, but in any event within three (3) days after the date such Products are received by Buyer and shall make such Products available to AOC so that AOC may make its own analysis thereof.  If Buyer shall fail to give written notice to AOC of a claim with respect to any Product within three (3) days after receipt thereof as provided above, such Product shall be deemed to conform to AOC’s warranty and Buyer shall be deemed to have irrevocably accepted such Product.  Products shall not be returned to AOC without AOC’s prior written authorization or unless requested by AOC.  Products which AOC consents to have returned shall be shipped F.O.B. AOC’s manufacturing facility in Sheboygan, Wisconsin.  THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES WHATSOEVER, EXPRESS OR IMPLIED.  AOC DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  AOC’S LIABILITY TO BUYER FOR DAMAGES ARISING FROM ANY CAUSE WHATSOEVER HEREUNDER SHALL BE THE INVOICE PRICE FOR THE PRODUCTS.  THE FAILURE OF BUYER TO PAY THE FULL PURCHASE PRICE FOR PRODUCTS ACCORDING TO THESE TERMS AND CONDITIONS OF SALE OR ANY OTHER OUTSTANDING BALANCE OWED TO AOC SHALL AUTOMATICALLY VOID ANY OF AOC’S WARRANTY OBLIGATIONS CONTAINED HEREIN.  IN NO EVENT SHALL AOC HAVE LIABILITY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR ANY BREACH OF WARRANTY OR ANY OTHER ACT OR DEFAULT, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR LOST PROFITS, PRODUCT RECALL COSTS OR ANY LOSS OF BUSINESS OR GOODWILL OF BUYER, AND ANY SIMILAR LOSSES, COSTS OR DAMAGES, REGARDLESS OF HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY. 

8.                   LIABILITY FOR INFRINGEMENT.  Specifications provided by Buyer constitute a warranty against claims for infringement of patents, copyrights, or trademarks.  If a lawsuit is brought or threatened against Buyer because the Products covered by or furnished hereunder are suspected to have infringed upon a valid U.S. patent, copyright, or trademark, Buyer shall promptly notify AOC of such lawsuit or threat of lawsuit so that AOC can take control of the litigation or settlement. Buyer shall fully cooperate with AOC in defense of such action at AOC’s expense.  In the event of such lawsuit or threat of lawsuit, AOC may, in its sole discretion, refund Buyer the original purchase price in the form of a credit or replace with non-infringing Products, which refund or replacement shall be Buyer’s only recourse and remedy against AOC;  provided,however, AOC shall have none of the above obligations if the infringement or suspected infringement is caused by the manner in which Buyer used the Products or AOC’s compliance with specifications provided by Buyer.

9.                   INDEMNIFICATION.  To the maximum extent allowed by law, Buyer must indemnify, hold harmless, and at AOC’s request, defend AOC, its officers, directors, employees, agents, affiliates, successors and assigns from and against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including attorneys’ fees) that AOC may incur or be obligated to pay as a result of (i) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the Products, including, without limitation, any third party claims for personal injury or property damage;  (ii) any infringement or alleged infringement of the industrial or intellectual property rights of others arising from Buyer’s plans, specifications (including Buyer’s trademarks and brand names) or production of the Products ordered by Buyer;  (iii) Buyer’s violation or alleged violation of any applicable international, federal, state, county or local laws or regulations; and/or (iv) Buyer’s breach of these Terms and Conditions of Sale.  AOC’s remedies hereunder are cumulative and in addition to those provided by law. 

10.                DATA PRIVACY.  Buyer shall provide all specifications and other information to AOC in accordance with all applicable international, federal, state and local laws, rules and regulations, including, without limitation, all applicable laws, rules and regulations governing data privacy and protected health information.  

11.                NON-WAIVER.  AOC’s failure to enforce any provisions of these Terms and Conditions of Sale or any rights hereunder shall not operate as a waiver of such provisions or rights.

12.                ASSIGNMENT.  Buyer may not assign its rights or obligations hereunder without the prior written consent of AOC and any attempted assignment without such consent shall be null and void. 

13.                SEVERABILITY.  If any provision of these Terms and Conditions of Sale shall under any circumstances be deemed invalid or inoperative, these Terms and Conditions of Sale shall be construed with the invalid or inoperative provision deleted, and the rights and obligations of the parties shall be construed and enforced accordingly.

APPLICABLE LAW.  Any dispute regarding the interpretation or validity hereof shall be governed by the internal laws of the State of Wisconsin without regard to any choice or conflicts of law provisions thereof.  Buyer irrevocably and unconditionally (i) consents to submit to the exclusive jurisdiction of the state and federal courts in Sheboygan County, Wisconsin, for the resolution of any dispute between the parties concerning the Products or these Terms and Conditions of Sale; (ii) agrees not to commence any such proceeding except in such courts; and (iii) waives any objection to the laying of venue of any such proceeding in the state or federal courts located in Sheboygan County, Wisconsin.  The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to any transaction between AOC and Buyer.