DENTAL MONITORING TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE. These DENTAL MONITORING (“DM”) Terms and Conditions of Sales shall govern all orders placed by buyer (“Buyer”) for products (“Products”) from DM. All orders for Products are subject to acceptance by DM at its headquarters in Paris, France. 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 DM 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 DM 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 DM, these Terms and Conditions of Sale shall govern unless expressly provided otherwise in such agreement.
2. IMPRESSIONS. DM requires one silicon impression for each arch that is to be monitored. Buyer shall be responsible for and shall pay all freight charges associated with the shipment of impressions/models to DM; provided, that, upon request, DM will provide Buyer with a pre-paid shipping container for such impressions/models and the freight costs therefor shall be added to DM’s invoice and payable together with payment for the Products purchased. Buyer acknowledges that all impressions and models provided to DM shall be disinfected prior to delivery to DM. BUYER FURTHER ACKNOWLEDGES THAT PRODUCTS PROVIDED BY DM PURSUANT HERETO ARE NOT CLASSIFIED AS STERILE.
3. PRICE. Products are invoiced at prices in effect at the time of the order and DM’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 DM may be required to pay in connection with the sale and/or transportation of the Products hereunder. Buyer agrees to promptly reimburse DM 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 DM’s choice. Risk of loss shall pass to Buyer at the time Products are delivered to a carrier at DM’s and Buyer shall be solely responsible for procuring commercially reasonable insurance coverage for the Products after such delivery for the benefit of DM and Buyer. Buyer shall be responsible for filing any claims against such insurers and carriers. Title to Products will remain with DM until full payment therefor is received by DM. Shipping dates are estimates only and DM will use every reasonable effort to meet such estimated shipping dates; provided, that if DM is unable to meet any shipping date, Buyer has no claim for damages resulting from any such delay in delivery.
5. FORCE MAJEURE. DM 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 EURO or DOLLARS within 30 days of the date of invoice. All orders are subject to the approval of DM’s credit department and DM require full payment in advance. Buyer shall pay DM all legal costs and expenses, including attorneys’ fees, incurred by DM in connection with its collection of Buyer’s overdue account.
7. EXCLUSIVE WARRANTY AND LIABILITY LIMITATION. Please, be aware that Dental Monitoring does not provide any clinical diagnosis and is intended to be used under an orthodontist’s prescription only. DM warrants to Buyer that monitoring sold to Buyer will, at the time of web publication from DM, 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 DM 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 DM 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.
THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES WHATSOEVER, EXPRESS OR IMPLIED. DM DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DM’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 DM SHALL AUTOMATICALLY VOID ANY OF DM’S WARRANTY OBLIGATIONS CONTAINED HEREIN. IN NO EVENT SHALL DM 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 EUROPEAN AND US. patent, copyright, or trademark, Buyer shall promptly notify DM of such lawsuit or threat of lawsuit so that DM can take control of the litigation or settlement. Buyer shall fully cooperate with DM in defense of such action at DM’s expense. In the event of such lawsuit or threat of lawsuit, DM 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 DM; provided,however, DM 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 DM’s compliance with specifications provided by Buyer.
9. INDEMNIFICATION. To the maximum extent allowed by law, Buyer must indemnify, hold harmless, and at DM’s request, defend DM, 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 DM 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. DM’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 DM 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. DM’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 DM 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 France without regard to any choice or conflicts of law provisions thereof. Buyer irrevocably and unconditionally (i) consents to submit to the exclusive jurisdiction of France, 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 France. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply to any transaction between DM and Buyer.
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