Purchase Terms and Conditions

These Terms and Conditions (these “Terms”) govern any and all sales of devices, accessories, and products (“Products”) from SomnoMed, Inc. (“SomnoMed”) to a third-party purchaser (the “Buyer”). These Terms prevail over any of the Buyer’s general terms and conditions of purchase, regardless of whether or when the Buyer has submitted its purchase order or such terms. Fulfillment of the Buyer’s order does not constitute acceptance of any of the Buyer’s terms and conditions and will not be deemed to modify or amend these Terms.

PLACING ORDERS:

After logging into or creating online account with SomnoMed, the Buyer may fill in an order form and submit the order electronically. Once the Buyer has submitted an order, the Buyer will be assigned an order number for reference purposes only (which does not constitute acceptance of the order). Submitted orders are binding on the Buyer, and the Buyer may not cancel an order once it has been submitted.

SomnoMed may cancel or reject any order for any reason or no reason, at any time. If an order is canceled after the Buyer’s credit card (or other payment account) has been charged, SomnoMed will issue a refund to the Buyer in the amount of the charge.

If SomnoMed accepts an order, the Buyer will be notified via email confirmation, which will be effective upon the date such confirmation is sent. In the event SomnoMed rejects or cancels an order, SomnoMed will attempt to contact the Buyer by email and/or telephone to notify the Buyer of such rejection or cancellation.

PAYMENT TERMS:

All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by the Buyer. The Buyer shall be responsible for all such charges, costs, and taxes; provided, that, the Buyer shall not be responsible for any taxes imposed on, or with respect to, SomnoMed’s income, revenues, gross receipts, personnel or real or personal property or other assets.

Payment of invoices are due upon receipt. Buyer shall make all payments by Autopay, ACH, check, or acceptable credit cards. SomnoMed accepts MasterCard, Visa, American Express, and Discover.

If the Buyer does not pay any amounts when due, such payments shall bear interest, beginning on the thirtieth (30th) day after the due date, at the lesser of the rate of 1 ½% interest per month (18% A.P.R.), or the maximum interest allowed by law. Interest shall accrue on a daily basis. In addition to all other remedies available to SomnoMed hereunder or at law, SomnoMed shall be entitled to suspend the delivery of any future Products if the Buyer fails to pay any amounts when due hereunder.

The Buyer shall reimburse SomnoMed for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

SomnoMed reserves the right to set credit limits on individual or practice accounts. If an account has not cleared its outstanding invoices, SomnoMed reserves the right to place the account on credit hold after which no additional orders will be accepted. SomnoMed may, at its discretion, require all future orders to be prepaid.

Unless otherwise stated, all payments shall be applied to the oldest unpaid invoice first.

The Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with SomnoMed, whether relating to SomnoMed’s breach, bankruptcy or otherwise.

LIABILITY RELEASE STATEMENT:

SomnoMed is a manufacturer that provides Products as prescribed by a licensed dental practitioner. SomnoMed does not assume, and expressly disclaims, any and all responsibility and liability for techniques used and the use and/or misuse of the Products by the prescribing dental practitioner or its staff or patients.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS, SOMNOMED MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. THE BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SOMNOMED, OR ANY OTHER PERSON ON SOMNOMED’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS.

PRODUCT WARRANTY AND CONDITIONS:

SomnoMed’s ability to provide quality Products begins with the Buyer. The Buyer must take the time to provide SomnoMed with accurate impressions, models, or digital scans along with a protrusive bite. SomnoMed is not able to accept, and will not accept, scans with traditional bite registrations.

Certain Products are covered by the warranties herein for a period of three (3) years and certain Products are covered for a period of one (1) year, as set forth in the “Warranty Period” section below. During the applicable warranty period, SomnoMed represents and warrants to the Buyer that, except to the extent set forth in the “Not Covered By Warranty” section below, the Products will: (a) conform to the specifications provided by the Buyer in the Buyer’s prescription form, and (b) be free from significant defects in materials and workmanship.

SomnoMed is responsible only for the custom fabrication of Products in accordance with provided specifications from the Buyer’s prescription form and within the manufacturing specifications of the Products. SomnoMed can only warrant that its custom-made Products will fit the working models that were provided by Buyer for use in connection with the Products’ construction.

IMPORTANT NOTE:

SomnoMed does not make any warranties, and hereby expressly disclaims all warranties, with respect to Products that are fabricated from impressions, models or digital scans that were created more than 360 days from date of invoice. For the avoidance of doubt, Buyer shall ensure that all impressions, models, and digital scans provided for any Product must have been taken less than 360 days from the date of the invoice for such Product.

Warranty repair work may only be completed by the authorized SomnoMed facility, or facility in which the SomnoDent® was originally manufactured.

WARRANTY PERIOD:

The Warranty Period begins upon delivery of the Product(s).

SomnoDent Warranty: Signature Line
• Fusion, Flex, Classic, Avant, SUAD, and SUAD Ultra – 3 years

SomnoDent Warranty: Standard Line
• Morning Repositioner, AIR, and AIR+ – 1 year

Herbst Advance, Herbst Advance Elite – 3 years,

NOT COVERED BY WARRANTY:

The warranties under these Terms do not apply to, and SomnoMed will not be liable for, any defects or damage to the Products caused by any of the following:

• Midline Acrylic fractures
• Buyer’s non-compliance with these Terms or patient’s non-compliance with prescriber’s instruction (patient chooses not to follow the prescribed treatment protocol, dislikes, or intolerant to prescribed device, etc.)
• Buyer’s or patient’s abuse (e.g., accident, neglect, device being lost, improper cleaning, storage, or hygiene, pet damage, etc.)
• Delamination of hard/soft material due to mishandling
• Staining or calculus build up
• Changes in the patient’s dentition (e.g., loss or removal of teeth, restorations, failure of supportive tooth or tissue structures, orthodontics, etc.)
• Improper insertion or removal of Product
• Improper adjustment or structural changes of Product
• Concerns expressed to prescribing doctor (regarding impressions, models, digital scans, bite registration, questionable indications, and authorization for Product fabrication)
• Incidental or consequential damages or costs (e.g., due to patient canceling treatment, lost wages, chair time, pain, and suffering)
• Resetting to current position or reset to new bite for sleep apnea devices
• Clasp and Wing repairs
• Normal wear and tear
• Expedited production and shipping costs
• Unauthorized alteration of Products by the Buyer or any third party
• Use of the Products in connection with any third-party product that has not been authorized by SomnoMed
• Use of the Products in violation of these Terms or contrary to any other instructions of SomnoMed

PRODUCT REMAKE REQUESTS:

While SomnoMed understands that many patients depend upon their appliances for improved and continued health, requests for a total remake – while the patient continues to use the current Product – should be neither expected by the Buyer or prescribing dentist nor promised to the patient.

FDA REGULATIONS:

Products in need of repair, replacement or adjustment must be returned to SomnoMed within 30 days of alleged defect for assessment. Failure to abide by the timely return of a Product will result in an invoice at full price of the remanufactured Product.

DELIVERY, DELAYS AND RISK OF LOSS:

• Unless otherwise agreed in writing, all Products will be sold “Ex works,” Somnomed’s warehouse.
• Delivery of Products to the carrier at SomnoMed’s warehouse shall constitute delivery to the Buyer and, thereafter, all risk of loss or damage shall be the Buyer’s responsibility, with claims to be submitted promptly to the carrier. SomnoMed shall not be liable for any delays, loss or damage in transit.
• The Buyer shall be responsible for all freight, insurance, and other shipping expenses, unless otherwise agreed in writing.
• Products will be shipped to the delivery address selected by the customer at the time the order is placed. SomnoMed is not liable for any liability arising out of the customer’s failure to provide accurate and complete delivery details.
• Any time quoted by SomnoMed for delivery is an estimate only. SomnoMed is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver, or delay in delivery. Any liability of SomnoMed for non-delivery of any Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered. No delay in the shipment or delivery of any Products relieves the Buyer of its obligations under these Terms, including without limitation accepting delivery of any remaining installment(s) of Products.
• SomnoMed shall not be liable for any non-delivery of Products (even if caused by SomnoMed’s negligence) unless the Buyer gives written notice to SomnoMed of the non-delivery within five (5) days of the date when the Products would in the ordinary course of events have been delivered.
• If the Buyer fails to accept delivery of the Products within four (4) days of a notice from the delivery company that the Products are ready for delivery, or if SomnoMed is unable to deliver the Products on the agreed date because the Buyer has not provided appropriate instructions or information, then: (i) the Products shall be deemed to have been delivered; (ii) SomnoMed, at its option, may store the Products until the Buyer picks them up, in which case the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and (iii) for the avoidance of doubt, risk of loss to the Products shall pass to the Buyer.

FORCE MAJEURE:

SomnoMed shall not be liable for any default, delay in performance or damage as a result of any delay in performance or nonperformance, due to any cause, directly or indirectly, beyond its reasonable control, including, without limitation, an act of God, act of the Buyer, embargo or other governmental action, prohibition or regulation or request, fire, the elements, accident, strike, labor dispute, slowdown, war, force of arms, riot, delay in transportation or inability to readily obtain necessary labor, materials or facilities. SomnoMed shall notify the Buyer of the happening of any contingency and of the contemplated effect thereof on the delivery of the Product.

PRODUCT REFUNDS AND PRODUCT RETURNS:

• Product refunds will not be provided for any reason. Buyer’s sole and exclusive remedy for any defects shall be as set forth in the “Exclusive Remedy for Defective Products” section below.

• All sales of shelf Products are final and are not eligible for return or credit.

EXCLUSIVE REMEDY FOR DEFECTIVE PRODUCTS:

This section contains the Buyer’s sole and exclusive remedies for Products that do not comply with the warranties set forth in these Terms (“Defective Products”). Buyer’s remedy under this section is conditioned upon Buyer’s compliance with its obligations under this section and the “If a Product Requires a Repair or Replacement” section below.

During the applicable warranty period, with respect to any Defective Products:
• Buyer shall notify SomnoMed, in writing, of any alleged claim or defect within thirty (30) from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable warranty period);
• Buyer shall ship, at its expense and risk of loss, such allegedly Defective Products to SomnoMed’s designated facility for inspection and testing by SomnoMed;
• If SomnoMed’s inspection and testing reveals, to SomnoMed’s reasonable satisfaction, that such Products are Defective Products and any such defect has not been caused or contributed to by any of the factors described under the “Not Covered By Warranty” section above, SomnoMed shall repair or replace such Defective Products; and
• SomnoMed shall, after receiving the Buyer’s shipment of such Defective Products, deliver to the Buyer, at SomnoMed’s expense, the repaired or replaced Products (and such deliver of the repaired or replaced Products shall be subject to the terms of the “Delivery, Delays, and Risk of Loss” section above);

In no event shall the Buyer reconstruct, repair, alter, or replace any Products, in whole or in part, either itself or by or through any third party.
THIS SECTION SETS FORTH THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SOMNOMED’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THESE TERMS.

IF A PRODUCT REQUIRES A REPAIR OR REPLACEMENT:

In the event that SomnoMed is obligated hereunder to repair or replace any Products, the Buyer shall comply with the following terms:

1. Returns must be generated according to SomnoMed’s RMA policy. The Buyer must begin the process by calling the RMA Team or by submitting its request on SomAccount (www.somaccount.com) and obtain the Buyer’s RMA Courtesy Box.

2. Follow the instructions printed on the inside of the RMA Courtesy Box. A link is provided to review the SomnoMed RMA policy, if needed.

3. Send new impressions, models, or digital scans along with a new bite registration.

4. Do not include any accessories or personal items. Products are returned in the white container located in the RMA Courtesy box.

GOVERNING LAW; DISPUTE RESOLUTION:
These Terms, including all orders of Products, and all matters arising out of or relating to these Terms, are governed by, and construed in accordance with, the laws of the State of Texas, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
SomnoMed and the Buyer each irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Terms, all orders of Products and all transactions contemplated by these Terms, including contract, equity, tort, fraud, and statutory claims, in any forum other than the state and federal courts located in Dallas County, Texas. SomnoMed and the Buyer irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in such courts. SomnoMed and the Buyer agree that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

LIMITATION OF LIABILITY:
SOMNOMED SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

SOMNOMED’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SOMNOMED PURSUANT TO THESE TERMS.