Divine Dental Studios

 

Digital Rx Terms & Conditions

By submitting this order form ( "Agreement" ) to Divine Dental Studios, Inc. ( "DDS" ) you agree to the terms and conditions herein applicable to the sale and delivery of the specially manufactured goods described herein (collectively, the "Product"). The following termsand conditions may not be added to, modified, superseded, waived, or altered except by a written instrument signed by you and an authorized officer of DDS. Any terms contained or referenced on any purchase order or document you submit to DDS at any time, whether contradictory to the terms appearing in this Agreement or otherwise, are rejected by DDS.

l. Payment of the stated invoice price is due in full upon receipt of the Product. Past due amounts shall accrue interest at the greater of 1.5% per month or the maximum rate permitted by law. You shall responsible for all costs of oollection, including, without limitation, attorneys' fees and costs. In the event that any order you submit is cancelled for any reason before shipment, you shall pay DDS cost incurred in connection with the cancelled order, and you shall reimburse DDS for any loss or damage.

2. You have the right to inspect the Product prior to acceptance. However, your failure to reasonably notify and return the Product to DDS within ten days after receipt shall constitute acceptance. Other forms of acceptance include, but are not limited to, installing the Product in a patient's mouth or requesting a change of shade, preparation, bite or design modification of any sort to the Product.

3. If you reject a Product due to a defect in workmanship or materials and such defect is (a) your fault (or the result of damage occuring during delivery), DDS may provide a replacement Product within a reasonable time and you shall pay all related costs, including, but not limited to, the costs of replacement Product and shipment, (b) DDS's fault, you must give DDS the opportunity to provide a replacement Product within a reasonable time at DDS's costs, and (c) both your fault and DDS's fault or fault is difficult to determine, you must give DDS the opportunity to provide a replacement Product within a reasonable time and the direct costs of remaking or replacing the Product and all related shipment expenses shall be shared and DDS shall determine your portion of the cost. You shall deliver all allegedly defective Product to DDS pursuant to Paragraph 5 below and DDS shall determine whether a Product is defective in its sole and absolute discretion.

4. You acknowledge and agree that it is customary in the aesthetic dental industry for goods similar to the Product to be adjusted and/or modified by a dental laboratory on more then one separate occasions. You further acknowledge and agree to give DDS a reasonable time and opportunity to make changes to the Product to meet the specification described in your initial order. Should DDS fail to provid a satisfactory Product within a reasonable time, your sole and exlusive remedy is limited to (a) the return of the Product and return from DDS of the amount paid for the priduct, or (b) DDS replacement the Product.

5. If you request the restoration, repair or replacement of the Product, you shall resubmitt all Products, including, but not limited to, original impressions, models and restoration(s) to DDS. You acknowledge and agree that DDS must have the original Product in order to assess possible restoration, replacement or repair options. You shall pay DDS for its services at its then applicable rates for restoration, repairs or replacement in the event that you request changes to the Product that were not included in your initial order.

6. You must thoroughly and carefully clean all blood and salvia from all materials used in the mouth including, but not limited to, the Product and you must also disinfect all of these items before sending them to DDS. You must also disinfect the items after they are returned to you by DDS before them in your patient's mouth.

7. DISCLAIMER AND LIMITATION OF LIABILITY. EXCEPT FOR THE TERMS IN THIS AGREEMENT AND EXCEPT AS OTHERWISE PROVIDED FOR IN WRITING BY DDS WITH RESPECT TO A SPECIFIC DDS PRODUCT (E.G. DDS'S WRITTEN CERTIFIED WARRANTY FOR ITS VARIOUS PRODUCTS), ALL PRODUCTS ARE PROVIDED "AS-IS" AND DDS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PRODUCTS. DDS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OR OTHERWISE, DDS SHALL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY AMOUNTS IN EXCESS OF THE ORIGINAL CONTRACT PRICE FOR THE PRODUCT, OR (B) ANY INCIDENTAL, CONSENQUENTAL OR PUNITIVE DAMAGES, LOST PROFITS, OR ANY LOST REVENUE OR COSTS YOU OR YOUR PATIENTS MAY INCUR IN CONNECTION WITH THE PRODUCT, INCLUDING, WITHOUT LIMITATION, YOUR COSTS OR YOUR PATIENT'S COSTS IN CONNECTION WITH YOUR SEVRICES TO INSTALL, REPAIR OR REPLACE THE PRODUCT.

8. You shall indemnify, defend and hold DDS and its officers, directors, employees and shareholders harmless from and against any and all claims, liabilities, damages, debts, settlements, costs, attorneys' fees and costs of any kind or nature relating to or arising from your negligence or intentional misconduct.

9. Product will be shipped F.O.B. DDS's fascilities by common carrier, unless the parties agree to other arrangements before the date of shipment. DDS bears the exoense and risk of placing the Product in the possession of the carrier. Thereafter, you bear the expense and risk of transporting the Product to the place of destination. DDS shall not be responsible for any lost Products or damage to Products occuring shipment.

10. Except with respect to injunctive relief, which may be brought in a court of competent jurisdiction, any controversy or claim arising out of or relating to this Agreement or the breachthereof shall be settled by binding arbitration to be held by JAMS or its successor. The arbitration shall be held in North Hollywood, CA, before a single arbitrator having experience with and knowledge of dental technology and the dental business selected in accordance with the rules and regulations promulgated by JAMS and shall be conducted in accordance with such rules and regulations unless specifically modified herein. The arbitrator's decision shall set forth a reasoned basis in writing for any award of damages or finding of liability including factual findings and the legal reasoning upon which the decision is based. The arbitrator shall not have the power to multiply actual damages or award punitive damages or any other damages that are specificaly excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages. The parties shall have all rights for depositions and discovery as provided in section 1283.05 of the California Code of Civil Procedure. This Agreement shall be governed by the laws of the United States of America and in particular, the laws of the State of Califonia, exclusive of its conflicts of law principles. The arbitrator shall apply California substantive law and the California Evidence Code to the proceeding. The language of the arbitration shall be English. The arbitrator shall have the power to grant all legal and equitable remedies including provisonal remedies and award compensatory damages provided by law, but the arbitrator may not order relief in excess of what a court could order. The arbitrator shall not have the power to commit errors of law or legal reasoning or to make findings of fact except upon sufficiency of the evidence. Any award that contains errors of law or legal reasoning or makes findings of fact except upon the sufficiency of the evidence exceeds the power of the arbitrator, and may be corrected or vacated as provided by applicable law. The parties covenant and agree that they will participate in the arbitration in good faith and they will share equally the fees and expenses of JAMS. The arbitrator shall assets costs and expenses (including the attorneys' and experts' fees and expenses of the prevailing party) against the non-prevailing party to a proceeding. Any party unsuccessfully refusing to comply with an order of the arbitrator shall be liable for costs and expenses, including attorneys' fees, incurred by the other party in enforcing the award. The arbitrator's decision shall be enforceable in any court of competent jurisdiction. Nothing in this provision shall limit or affect in any way any legal proceedings between the parties to this Agreement that has commenced or remains pending prior to the formation of this Agreement.

11. If any provison of this Agreement is held invalid, unenforceable or void by a court of competent jurisdiction, such circumstances shall not affect the validity of any of the provisions of this Agreement, but this Agreement shall be reformed and continued as if such invalid, inoperative or unenforceable provision had never been contained herein and such provision reformed so that it would be valid, operative and enforceable to the maximum extent permitted.

12. In addition to any excuse provided by applicable law, DDS shall be excused from its obligations to perform hereunder in the event of circumstances beyond its reasonable control, whether or not foreseeable, including, but not limited to, labot disturbance war, terrorism, fire, accident, inability to obtain materials, governmental act or regulation, and any other causes or events beyond DDS's reasonable control, whether or not similar to those enumerated above.

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