TERMS AND CONDITIONS OF SALE
1. Limits of Agreement
The terms and conditions as set forth herein as well as any additional terms and conditions that may appear on an invoice at the time of sale (initialed by an authorized signatory of Seller only) shall constitute the entire agreement between BIOLASE ("Seller") and the buyer ("Buyer"). The Agreement shall not be modified except in writing, signed by both parties thereof. No waiver by Seller of any default or provision hereof shall be deemed a waiver of any subsequent default or provision. The Agreement must be accepted by Seller by signature of one of Seller's duly authorized officers/managers, and shall constitute the entire Agreement between the parties and shall supersede all prior and contemporaneous written or oral negotiations, warranties, representations, and agreements. Seller's sales consultants or field service workers are not authorized to bind Seller nor to make warranties or other commitments of any kind.
(a) The Buyer shall pay a minimum of 20% of the purchase price as a down payment, which shall be forfeited in the event the Buyer breaches this Agreement. The price of all goods, unless otherwise specifically stated, is Ex-works, at the place of manufacture or warehouse location, exclusive of insurance cost. The cost of packaging for normal domestic shipment is included in the invoice price. Where special domestic or export packaging is specified, involving greater expense, a charge will be made to cover such extra expense.
(b) Prices and orders do not include federal, state, or local excise, sales, use, or other tax now or hereinafter enacted, which are applicable to the goods sold, which tax or taxes will be added by Seller to the sales price when Seller has the legal obligation to collect the same and will be invoiced to and paid by Buyer, unless Buyer provides Seller with a proper tax exemption certificate. Prices do not include the following, which shall be the sole responsibility of the Buyer and are not included in the purchase price: (i) the disconnecting and/or reinstalling of Buyer's existing equipment, (ii) changes or additions in electrical, or carpentry work, (iii) costs to bring air supply to necessary specifications for the proper operation of the laser, (iv) necessary governmental inspections, approvals, and fees, (v) union intervention in installation or delivery of the equipment, (vi) disposal of old equipment, and (vii) delivery of donated equipment. In the event of a lease satisfactory to both parties, all monies paid in advance shall be returned. Buyer agrees to allow the release of financial information of the financial institution stated on the order form relative to the purchase, and further authorizes Seller, or its agent, to investigate Buyer's personal and/or business credit and finance records including Buyer's banking records. Buyer authorizes Seller to use Buyer's social security number and other personal information to request and obtain consumer credit reports on Buyer in connection with the opening, monitoring, renewal, and extension of this and other accounts with Seller. (c) Unless otherwise stated by Seller in writing, all quotations are firm for, and will expire on, sixty (60) days after the date thereof and constitute offers. (d) Prices quoted are for the goods and services described only and do not include technical data, proprietary rights of any kind, patent rights, qualification, environmental, or other than Seller's standard tests unless expressly agreed to in writing by Seller.
3. Payment Terms
(a) In the event Seller chooses to sell to the Buyer on open account, the terms of the sale are net 30 from the date of invoice, subject to credit approval unless otherwise stated on the sales invoice. Interest accrues on overdue invoices at the rate of one and one-half percent (1.5%) per month, but not more than the amount allowed by law, on the unpaid balance from the original due date of the invoice. Payment shall not be withheld for delay in installation.
(b) All orders are subject to, and the obligation of Seller to make deliveries is subject to, the rights of the Seller as provided in the Agreement. (c) Buyer hereby grants a security interest in the Products in favor of Seller until such time as Buyer has made payment in full in accordance with the terms thereof. Buyer shall cooperate fully with Seller to execute such documents and to accomplish such filings and/or recordings thereof as Seller may deem necessary for the protection of Seller's security interest in the Products.
Unless otherwise agreed to in writing by Seller, all transportation shall be at the expense of Buyer. Seller reserves the right to ship Products freight collect and to select the means of shipment. Risk of loss or damage shall pass to Buyer upon delivery of the Products to the transportation company at the shipping (EXW) point, whether or not installation is provided by or under supervision of Seller. Confiscation or destruction of, or damage to Products shall not release, reduce or in any way affect the liability of Buyer, and includes products returned at Buyer's expense.
5. Inspection and Acceptance
The Buyer shall have the right to inspect the goods upon tender of delivery. Failure of the Buyer to inspect the goods and give written notice to the Seller of any alleged defect or nonconformity within five (5) days after tender of delivery shall constitute an irrevocable acceptance by Buyer of the goods delivered to Buyer; provided that goods for which Seller agrees in writing to provide installation by its personnel, shall be deemed accepted by Buyer upon completion by Seller of installation. Notwithstanding the foregoing, use of any such goods by Buyer, its agents, employees, or licensees, for any purpose after delivery thereof, shall constitute acceptance of the goods by Buyer.
6. Training Vouchers
All BIOLASE training credits will expire 120 days after the date of installation.
7. Purchase Agreement
This purchase agreement, when accepted by BIOLASE, shall constitute the entire agreement between the parties and shall supersede all prior and contemporaneous written or oral negotiations, warranties, representations and agreements. BIOLASE Laser Specialists or Field Service Engineers are not authorized to bind BIOLASE or to make warranties. Oral statements do not constitute warranties and any other oral statements shall not be relied upon nor considered part of this agreement.
Sales on all lasers are final upon shipment. The goods or parts thereof sold herein may in no case be returned to Seller without first obtaining Seller's written consent. The request for return and credit must be filed with Seller and shall include purchase order number, approximate date shipped, and any and all other identifying numbers (such as invoice number, date of invoice, P.O. numbers, etc.). For consumables (including tips), unopened, unused consumables may be returned within 90-days. If a return authorization is granted then (1) a return authorization number will be issued by BIOLASE and, (2) the return authorization number must be written on all packages. A 20% restocking fee will be charged for all unopened, unused consumables being returned after 30 days, and an online-store credit or account credit will be issued (no monetary refunds). No credit allowance on defective goods will be made and no replacement for defective goods will be shipped in any event, unless the alleged defects are, among other things, established to Seller's satisfaction after suitable testing and inspection by Seller. Seller shall have the right of first refusal in the event that Buyer wishes to sell the Products and related accessories, and hereby acknowledges and agrees that the sale to a third party of the Product purchased under the Agreement voids any existing warranty set forth hereon or in the user instructions of the Product, as the case may be, and then in effect, and agrees to inform the third party buyer of such fact prior to such sale.
Any order for a standard Product with a published price accepted by Seller and terminated by Buyer prior to shipment, shall be subject to a termination charge of not less than twenty percent (20%) of the order value, to cover costs of processing and order handling.
10. Limited Warranty
The Products shall be subject to a limited warranty set forth in the Product's user manual/instructions, or any other officially-approved BIOLASE documentation accompanying the Product or Products. In the event no such user manual/instructions or other warranty documentation is so provided, the Seller warrants the goods and parts which are of its manufacture and shipped hereunder to be (1) free from defects in material and workmanship for a period of twelve (12) months for Waterlase Laser(s) and twenty-four (24) months for Diode Laser(s) from shipment/receipt of Product(s), and (2) to perform in the manner and under the conditions as specified in Seller's warranty for the individual Product(s). All related accessories and other products used in conjunction with the Product(s) must be manufactured by or certified in writing by Seller, and use of any non-authorized Product(s) or accessories will void the warranty and all service contracts, and remove all liability to Seller. Seller's sole and exclusive liability and the Buyer's sole and EXCLUSIVE REMEDY under this warranty shall be, at Seller's election, the repair or replacement of goods, only if Seller is promptly notified in writing by Buyer upon discovery of such defects and Seller's examination of such goods meets Seller's satisfaction that such defects actually exist and the goods have not been misused, neglected, repaired, worked on, or altered, or otherwise used not in accordance with Seller's instructions for proper use. All goods which Buyer considers defective shall be returned to Seller's office, transportation post prepaid and borne by Buyer (unless otherwise agreed to in writing). The risk of loss of goods shipped or delivered to Seller's plant to repair or replace will be borne by Buyer. If it is found that Seller's Product has been returned without cause and is still serviceable, Buyer will be notified and the product returned at Buyer's expense; in addition, a charge for testing and examination may, in Seller's sole discretion, be made on Product(s) so returned. SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT AS EXPRESSLY SET FORTH IN THE ABOVE WARRANTY. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE GOODS DELIVERED HEREUNDER.
11. Bankruptcy or Insolvency of Buyer
If the financial condition of the Buyer at any time is such as to give Seller, in its judgment, reasonable grounds for insecurity concerning Buyer's ability to perform its obligations under this Agreement, Seller may (a) require full or partial payment in advance and suspend any further deliveries (or continuance of the work to be performed by Seller) until such payment has been received or (b) make shipment C.O.D.
12. Proprietary Rights
The Sale of the goods hereunder to Buyer shall in no way be deemed to center upon Buyer any right, interest, or license in any patents or patent applications, indicia or design copyrights the Seller may have covering the goods. Seller retains for itself all proprietary rights in and to all designs, engineering details, and other data and materials pertaining to any goods supplied by Seller and to all discoveries, inventions, patents, and other proprietary rights arising out of the work done in connection with the goods or with any and all products developed, as a result thereof, including the sole right to manufacture any and all such products. Buyer warrants that it will not divulge, disclose, or in any way distribute or make use of such information, and that it will not manufacture or engage to have manufactured such products.
The Agreement is made and entered in the State of California, without giving effect to conflict of laws principles. Any dispute under the Agreement shall be brought in the state or federal courts situated in Orange County, California to the exclusion of all forums. In the event of a dispute, the prevailing party shall be entitled to the reimbursement of its costs and reasonable attorneys' fees by the non-prevailing party. Buyer agrees to pay any reasonable attorneys' fees and all other costs of collection incurred by Seller in connection with the Agreement.
Typographic and numerical errors are subject to correction when identified.