Terms of Agreement - Teethan
Terms & Conditions of Sale
This quotation constitutes an offer on the part of Abōva Health LLC (Seller), to sell products manufactured by BTS S.p.A. and Teethan S.p.A. (collectively, “Teethan”) to the company identified as "Legal Business Name" in the attached “Customer Information” form (“Buyer”). This offer is contingent upon Seller’s confirmation of the information contained in the “Customer Information” form provided by Buyer. This offer shall become a binding contract upon Seller’s receipt of Buyer’s written acceptance (“Contract”). . Buyer expressly agrees to the following terms and conditions . In the event that Buyer's acceptance conflicts with, varies or supplements the terms and conditions set forth in this offer, Seller hereby expressly objects to and rejects such provisions, and Buyer's conflicting, varying or supplement provisions shall be null and void, unless agreed to and accepted in writing by Seller. Acceptance of this quotation by Buyer constitutes the entire agreement between Seller and Buyer and supersedes all other agreements, oral or written.
- Delivery: Products will be delivered to Buyer’s designated carrier, F.O.B. Seller's dock in Minneapolis, Minnesota or as the parties may otherwise agree in writing (“Delivery”). Risk of loss for the Products shall transfer to Buyer upon Delivery. At Buyer’s request, Seller will arrange for freight and insurance and charge Buyer for such expenses. Any damage to products must be reported promptly when Products are received by Buyer and noted on the Bill of Lading.
- Sales Tax: Seller is required by law to charge and collect state and local sales taxes by several U.S. states. If Buyer is exempt from sales tax, Buyer must provide a copy of its state sales tax exemption certificate in advance of shipment, which Seller will maintain on file. Buyer further must provide a reseller's certificate for the state(s) its business operates in order to avoid Seller from charging sales tax on products that Buyer is responsible for collecting.
- Payment Terms: Payment for Products will be due in advance of Delivery. Payments not made when due will be subject to an interest charge of (1.5%) per month, which shall accrue until paid in full. In the event of non-payment by the Buyer, Seller has the right to pursue any remedy at law or in equity including without limitation, the remedies provided in paragraph 4 below. In the event invoices are unpaid or overdue, Buyer shall pay Seller's actual and reasonable costs and expenses of collection, including attorney's fees.
- Marketing and Promotion: Seller, at its sole discretion, may provide access to certain marketing and promotional materials, and may direct or refer interested consumers to Buyer, as well as other facilities offering Teethan Products and programs, through "site locators" on its website or through other methods it deems appropriate.
- Software: As part of Buyer’s purchase of the Products, Buyer will be entitled to access and use certain software made available by Teethan for use in connection with the Products. Buyer’s access and use of such software will be subject to the end user license agreement attached hereto as Exhibit A.
- Standard Commercial Warranty: Seller makes no representations and warranties with respect to the Products other than that Teethan warrants the Products to be free from defects in design, materials, engineering, fabrication and workmanship, commencing from Delivery of the Product to the Buyer and continuing for as long as Buyer remains a subscriber to the Software pursuant to the agreement between Buyer and Teethan (“Warranty Period”). If during the Warranty Period the Product is not free from defects in design, materials, engineering, fabrication and workmanship and has not been misused or subjected to abnormal conditions, Teethan will replace such defective Product. Buyer is responsible for returning the defective component to Seller within (10) days of discovery of the defect. This warranty is void if the Product is serviced by non-Seller technicians without prior authorization from Seller’s authorized representative. Seller's warranty is expressly in lieu of any other warranties, expressed or implied, including without limitation, any statutory warranty, any warranty of merchantability or fitness of Products for Buyer's particular purposes. Seller makes no representations and warranties with respect to the Software and any representations and warranties or other commitments or obligations regarding the Software will be set forth in the separate agreement between Buyer and Teethan regarding Buyer’s access and use of the Software .
- Waiver and Limitation of Liability: No claim or right arising out of breach of this Contract can be discharged by waiver unless such waiver is supported by consideration and signed by the aggrieved party. Seller's liability will not exceed (100%) of price of the Product. IN NO EVENT SHALL SELLER BE LIABLE FOR LOSS OR CORRUPTION OF DATA, LOST PROFITS, BUSINESS INTERRUPTION LOSSES, THIRD PARTY LOSSES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCTS.
- Returns: No shipments shall be returned unless accompanied by a Return Material Authorization (RMA). Items approved for return due to circumstances outside the control of Seller will be subjected to a restocking charge equal to (15%) of the system or product purchase price. Special order items are non-returnable, non-refundable. Special order items are those items that do not have a Seller part number.
- Statute of Limitations/Attorney's Fees to Prevailing Party: Suits by Seller or Buyer based on claims relating to the Products will be barred unless begun within two years of date of Delivery. The prevailing party is entitled to damages, costs, and its attorney's fees.
- Law Governing/Venue: The internal laws of the State of Minnesota shall govern any purchase resulting from this contract without regard for principles of conflicts of laws thereof. Seller and Buyer each hereby consent to the jurisdiction and venue of any court of competent jurisdiction located within the state of Minnesota upon service of process made in accordance with the statutes of Minnesota and the United States, and further agree that any and all causes of action whether or not arising under this contract by and between the parties hereto shall only be brought in a court of competent jurisdiction situated within the state of Minnesota.
Exhibit A: End User License Agreement
This End User Software License Agreement (the “Agreement”) is made by and between the company identified as "Legal Business Name" in the “Customer Information” form to which this Agreement is attached (“Buyer”) and Abōva Health LLC (“Seller”) and governs your use of software (as well as any upgrades, modified versions, updates, additions and copies thereof) made available to you in connection with Buyer’s purchase of Teethan products from Seller (“Software”) and any related explanatory materials (“Documentation”).
Subject to the terms and conditions of this Agreement (including the conditions set forth in the “Restrictions” section below), Seller hereby grants Buyer a limited, non-exclusive license to use the Software and the Documentation for the period set forth on the purchase order form to which this Agreement is attached or incorporated. The Software and the Documentation may only be used or accessed in connection with the number of users for which Buyer is licensed as set forth on the purchase order form to which this Agreement is attached or incorporated.
As between Seller and Buyer, the Software and the Documentation are proprietary to Seller and Seller remains the owner of all rights, title and interests in and to the Software and the Documentation, including all intellectual property rights in and to any of the foregoing.
Buyer will not and will not authorize or permit any third party to: (i) access, view, use, copy, modify or prepare derivative works of any part of the Software or the Documentation, except as expressly authorized in this Agreement; (ii) resell, distribute, rent, lease, sublicense, lend, give, market, commercialize, assign or otherwise transfer rights or usage of all or any part of the Software or Documentation to any third party, except as expressly authorized in this Agreement; (iii) reverse engineer, translate, disassemble, decompile, disable security measures or cause or allow discovery of the source code (except to the extent that such a restriction would be a breach of applicable law) for any part of the Software or attempt to do so; (iv) remove, obscure or alter the copyright, trademark or other proprietary notices affixed to or contained in the Software or the Documentation; or (v) place the Software onto a server so that it is accessible via a public network such as the Internet.
Buyer is responsible for authorizing, designating and managing its personnel that will be permitted to access and use the Software (“Authorized Users”). Accordingly, Buyer agrees that it is solely responsible for ensuring that (a) its Authorized Users do not share login information with third parties; (b) its Authorized Users understand the need and take appropriate measures to keep all such information secret and confidential; and (c) Authorized Users comply with all applicable laws, including those regulating the use and disclosure of the Software. Seller will have the right to assume that any individual accessing or using the Software using Buyer’s login information is associated with Buyer and will grant access to Buyer’s information and other capabilities accordingly. Buyer will be entirely responsible for the acts and omissions of anyone using Buyer’s login information as though such acts and omissions were the acts and omissions of Buyer, whether or not such acts or omissions or the use of Buyer’s login information were authorized by Buyer. If Buyer wishes to terminate or modify the access rights of any of its Authorized Users, Buyer will be entirely responsible for such changes. Buyer will notify Seller immediately of any known or suspected unauthorized use of the login information registered to Buyer or any other known or suspected breach of security.
Buyer may not assign or otherwise transfer this Agreement or any other rights or obligations herein without the express written consent of Seller, except that Buyer may assign this Agreement to an entity purchasing all or substantially all of Buyer’s assets or voting securities so long as the acquiring party has reasonably complied with all terms and conditions of this Agreement and the assigning party provides prompt written notice to Seller of such assignment. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto, their successors and assigns.
Buyer may, however, transfer the Software to a different physical device within your organization, provided that you transfer this Agreement, the Software (including all copies, updates and prior versions) and the Documentation (including any archival copies) to such physical device and provided that Buyer retains no copies, including copies stored in computer memory, on the previously licensed computer.
THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SELLER, ITS AFFILIATES AND ITS LICENSORS MAKE NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING BY COURSE OF DEALING, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, IN CONNECTION WITH THE SOFTWARE OR THE DOCUMENTATION, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. FURTHER, SELLER AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS BUYER MAY OBTAIN BY USING THE SOFTWARE OR THE DOCUMENTATION. NO EMPLOYEE, AGENT, DEALER OR DISTRIBUTOR OF SELLER IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY, NOR TO MAKE ANY ADDITIONAL WARRANTIES WITH RESPECT TO THE SOFTWARE OR THE DOCUMENTATION.
IN NO EVENT SHALL SELLER BE LIABLE FOR LOSS OR CORRUPTION OF DATA, LOST PROFITS, BUSINESS INTERRUPTION LOSSES, THIRD PARTY LOSSES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE.
The internal laws of the State of Minnesota shall govern any purchase resulting from this Agreement without regard for principles of conflicts of laws thereof. Seller and Buyer each hereby consent to the jurisdiction and venue of any court of competent jurisdiction located within the state of Minnesota upon service of process made in accordance with the statutes of Minnesota and the United States, and further agree that any and all causes of action whether or not arising under this Agreement by and between the parties hereto shall only be brought in a court of competent jurisdiction situated within the state of Minnesota.