Terms of service

TERMS AND CONDITIONS OF SALE. The following are the terms and conditions by which Keystone Dental, Inc. sells its products. As used herein, the term “Keystone” means Keystone Dental, Inc. and its applicable affiliates; the term “Products” means the Keystone products and services described in this invoice, and “Purchaser” means the person or company purchasing the Products.

GOVERNING TERMS. Any purchase and shipment of Products shall be deemed to be on the terms and conditions stated herein. Any and all terms and conditions submitted by Purchaser are hereby rejected.

TAXES. The prices set forth herein do not include any sales, use, excise, ad valorem, property or other taxes applicable to the sale, use or delivery of the Products, all of which shall be paid by Purchaser separately or added to the contract price and paid by Purchaser to Keystone.

PRICES. The prices set forth for the Products are in local currency. All prices shall be as of the invoice date, regardless of the date the Product is originally ordered from Keystone.

DELIVERY. Title to and risk of loss for the Products subject to a purchase order shall shift from Keystone to Purchaser upon Keystone’s delivery of the goods to the carrier. Products sold hereunder shall be delivered F.O.B. shipping point. Purchaser shall assume responsibility for all subsequent delivery or shipping charges.

ACCEPTANCE. Purchaser must inspect all Products for defects and/or non-conformity and notify Keystone of any such defect and/or non-conformity within seven (7) calendar days of delivery. After this period, Purchaser will have accepted such Products subject to Purchaser’s right of return set forth in the “RETURN; EXCHANGE” section below.

PAYMENT. Payment terms shall be as set forth on the front of the invoice. Custom made, patient matched prosthetics will be billed in two stages with 50% of the total charge invoiced at the completion of each stage. Stage 1 is considered completed after acceptance of the design. Stage 2 is considered completed after delivery of the final prosthesis. If any payment is late, interest shall accrue on the amount due and unpaid from the date such payment was due until paid at an interest rate equal to 1 1/4% per month or the maximum interest rate permitted under applicable law, whichever is less. Keystone may, in its sole discretion, suspend shipments of Products until full payment by Purchaser of all past due amounts to Keystone is made. Purchaser acknowledges and agrees that it shall pay all costs of collection, including, without limitation, reasonable attorneys’ fees, incurred by Keystone in connection with collecting any sums due Keystone, including but not limited to, any incidental or consequential damages to Keystone arising from Purchaser’s failure to satisfy its obligations hereunder. PURCHASER WAIVES ANY RIGHT OF SET-OFF AND SHALL MAKE NO DEDUCTIONS FROM PAYMENTS DUE TO KEYSTONE FOR ANY DAMAGES OF ANY TYPE CLAIMED BY PURCHASER AGAINST KEYSTONE.

RETURN; EXCHANGE. Purchaser may return any Product (excluding Products that are custom made, patient matched prosthesis, and gauges) within thirty (30) calendar days of the invoice date so long as there is an offsetting (exchange) order of equal or greater value. Purchaser may return any Product after thirty (30) calendar days from the invoice date, but no later than ninety(90) calendar days after the invoice date, so long as there is an offsetting (exchange) order of equal or greater value, provided, however, such returns shall be subject to a 15% re-stocking fee. Keystone will not accept any returns or exchanges after ninety (90) calendar days following the invoice date.

Products that are custom made, patient matched prosthesis will be accepted for return only when there is a defect in materials or workmanship or if the Product does not match any special instructions communicated in relation to the Product in question and Purchaser has timely notified Keystone of any such defect or non-conformity within the time required by the “AC- CEPTANCE” section set forth above.

No biomaterial products (bone grafting and membrane) will be accepted for return or exchange. No returns or exchanges will be accepted for Products that (i) were originally sold as part of a kit, pack or set, (ii) were included on the original invoice at no charge, (iii) have less than six

(6) months remaining before expiration or (iv) were custom ordered. The Purchaser shall pay all shipping costs associated with the return or exchange of a Product. No Products will be accepted by Keystone for return or exchange without an RMA number given to Purchaser by Keystone Customer Service. Returned Products must be unexpired, un- opened and undamaged, returned freight prepaid.

WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN KEYSTONE’S LIFETIME IMPLANT WAR- RANTY PROGRAM AND OSTEON WARRANTY PROGRAM AS IN EFFECT ON THE DATE OF IN- VOICE FOR THE APPLICABLE PRODCUTS AND ONLY TO THE EXTENT APPLICABLE TO SUCH PRODUCTS, KEYSTONE DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, EXCEPT THAT ITS PRODUCTS SHALL BE FREE FROM DEFECTS IN MATERIAL AND/OR WORKMANSHIP. THIS WARRANTY APPLIES ONLY TO THE ORIGINAL PURCHASER. PURCHASER ASSUMES ALL RISKS AND LIABILITY RESULTING FROM THE USE OF THESE PRODUCTS, WHETHER USED SEPARATELY OR IN COMBINATION WITH OTHER PRODUCTS. THE WARRANTY DOES NOT AP- PLY IF THE FAILURE OF THE PRODUCT IS CAUSED BY TRAUMA OR ACCIDENT OR BY THE PATIENT IN WHOM THE IMPLANT OR PRODUCT WAS INSTALLED OR IF THE PURCHASER IS NOT CURRENT ON ALL OUTSTANDING PAYMENTS TO KEYSTONE AT THE TIME OF SUCH CLAIM. KEYSTONE MAY MODIFY OR TERMINATE ITS WARRANTY PROGRAM AT ANY TIME, HOWEVER ANY CHANGES TO THE WARRANTY PROGRAM WILL NOT AFFECT PRODUCTS AL- READY PURCHASED AT THE TIME OF SUCH CHANGE. PURCHASER’S SOLE REMEDY WITH RE- SPECT TO CLAIMS RELATED TO KEYSTONE PRODUCTS IS RESTRICTED TO THE APPLICABLE WARRANTY POLICIES. PURCHASER ACKNOWLEDGES THAT IT IS NOT RELYING ON KEY- STONE’S SKILL OR JUDGMENT TO SELECT OR FURNISH PRODUCTS SUITABLE FOR ANY PAR- TICULAR PURPOSE.

LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL KEYSTONE OR ANY OF ITS AFFILIATES BE LIABLE FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, SPECIAL, INDI- RECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE AND FROM ANY CAUSE WHETHER BASED IN CONTRACT, WARRANTY OR TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL THEORY, EVEN IF KEYSTONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAM- AGES.

INTELLECTUAL PROPERTY. All intellectual property rights in Products sold to Purchaser shall remain the exclusive property of Keystone.

PERSONAL DATA. It is Purchaser’s responsibility to obtain patient’s consent to transfer any per- sonal data to Keystone. Purchaser shall comply with all applicable laws and regulations related to the transfer of such personal data and shall no event transmit any such personal data without the prior written consent of Keystone and without appropriately marking the personal data so that it the confidential nature of such personal data is apparent to Keystone.

TERMINATION. Keystone may terminate this or any agreement with Purchaser to purchase its Products upon immediate written notice if Purchaser fails to pay any of its obligations to Keystone on time

FORCE MAJEURE. Keystone shall not be liable for any loss or damage due to failure or delay arising out of any cause beyond the reasonable control of Keystone. In the event of any failure or delay resulting from such causes, an equitable adjustment of delivery and any other appropri- ate terms and conditions shall be made. No such failure or delay shall be the basis for an increase in Keystone’s obligations, nor any termination by Purchaser.

CONDITION AND QUANTITY OF GOODS. Keystone reserves the right to make any change in material or its designs which is minor or an improvement with or without prior notice, but bears no obligation to do so. Any design, specification, or other change requested by Purchaser shall be made only as agreed to in writing by Keystone. Keystone makes no warranty or representation of any nature that any Products shipped to Purchaser conform to any goods of like Product de- scription as may have previously been delivered to Purchaser except as to the applicable specifi- cations. All Products shall be subject to standard manufacturing and commercial variations and practices of Keystone. If Keystone should be manufacturing any "non-standard" Product for Purchaser, and Purchaser requests a delay or a delay is caused by lack of shipping instructions from Purchaser, then Keystone will store all items ordered at Purchaser’s risk and expense and will invoice Purchaser for the full purchase price of the Products on or after the date on which same are ready for delivery. If manufacture is delayed by Purchaser, payment shall be made based on the percentage of completion and the purchase price.

IDENTIFICATION OF PRODUCTS AND TRADEMARKS. Keystone may, at Keystone’s option, place its name, address and trademark on the Products or any component thereof that are purchased from Keystone.

CANCELLATION: No orders may be canceled or changed without the written agreement of both parties. In the event Purchaser cancels or repudiates a purchase order after acceptance by Keystone, Purchaser shall pay liquidated damages to Keystone as follows:

If the goods have been manufactured and are ready for shipment at the time Purchaser cancels or repudiates the purchase order, Purchaser shall pay the full purchase price.

If the manufacture of the goods has not been completed at the time Purchaser cancels or repudiates the purchase order, Purchaser shall pay to Keystone (i) all costs incurred by Keystone pursuant to Keystone’s obligations under the purchase order up to the time notice of said cancellation is received by Keystone; (ii) all other costs subsequently incurred by Keystone that can- not be avoided; and (iii) the expected profit of Keystone if Keystone had completed manufacture of the goods and delivered same to Purchaser.

CREDIT APPROVAL; ADEQUATE ASSURANCE; SECURITY INTEREST. All purchase orders are subject to credit approval of Purchaser and to acceptance by Keystone. During the performance of Keystone’s obligations, Keystone shall have the right to demand adequate assurance of due performance if reasonable uncertainty exists concerning Purchaser’s solvency or if Purchaser has become incapacitated, declared bankruptcy, suspended payments or, in the case of a corporation, dissolved, and Keystone may suspend further performance until such assurance is given by Purchaser or, at Keystone’s sole option, may terminate the purchase order in which event Keystone shall be entitled to receive from Purchaser liquidated damages determined in accordance with the “CANCELLATION” section set forth above or such amount as is then due and owing from Purchaser to Keystone for such Products, whichever is greater. Purchaser hereby grants to Key- stone, and its successors and assigns, a security interest in all Products until all amounts due or to become due under the purchase order have been paid, and agrees, without further consideration, to execute and deliver all documents reasonably requested by Keystone to perfect its security interest.

EXPORT SALES. Purchaser shall comply with all applicable laws, rules, and regulations of all jurisdictions have a relation to the purchase and movement of, and payment for, any Products Keystone may sell or otherwise provide to Purchaser, and Purchaser will not import, export or transfer any products sold or provided by Keystone without obtaining all necessary or required governmental or other authorizations or approvals or otherwise complying with all applicable legal requirements and payment of any duties on such Products.

DISCOUNT REPORTING OBLIGATIONS. If the pricing offered to Purchaser hereunder constitutes “a discount or other reduction in price” for purposes of the federal Anti-Kickback Statute (“AKS”) discount exception (42 U.S.C. §1320a-7b(b)(3)(A)) and the AKS discount safe harbor (42 C.F.R.§1001.952(h)), Purchaser shall disclose the discount or reduction in price to the full extent re- quired under any state or federal program that provides cost or charge-based reimbursement to Purchaser for Products. Purchaser may also be required, upon request, to provide documentation of the discount or other reduction in price to the Secretary of the Department of Health and Human Services and/or state agencies. Purchaser shall make written request to Keystone if Purchaser requires additional information from Keystone to meet its reporting requirements.

VALIDITY. If any provision of these Terms and Conditions is found to be illegal or unenforceable in any respect, such illegality or unenforceability shall not affect any other provision of these Terms and Conditions, all of which shall remain enforceable in accordance with their terms.

NO THIRD PARTY BENEFICIARIES. The purchase order shall be for the sole and exclusive benefit of Keystone and Purchaser and not for the benefit of any other person or entity.

GENERAL PROVISIONS. The purchase of the Products and these Terms and Conditions are governed by the laws of the Commonwealth of Massachusetts, without regard to conflicts of law principles. Any dispute, claim or controversy arising out of or in connection with the purchase of the Products shall be resolved by arbitration in Boston, Massachusetts. This document incorporates all oral and written representations between the parties and constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all other agreements either oral or written between the parties with respect to such subject matter. No amendment or modification may be made to this document unless in writing and duly executed by an authorized representative of Keystone. No waiver by Keystone of any breach of these terms and conditions by Purchaser shall constitute a waiver of any other breach or of such provision. Keystone’s failure to require strict performance of any term or provision hereof shall not affect Keystone’s right thereafter to require strict performance of such term or provision or any other term or provision hereof. Keystone's failure to object to provisions contained in any communication from Purchaser shall not be deemed an acceptance of such provisions or a waiver of these terms and conditions. Keystone may subcontract, assign or transfer its obligations or rights to a competent third party. Purchaser may not assign or transfer any of its obligations without the prior written consent of Keystone.