The following Terms and Conditions Agreement (“Agreement”) constitutes a binding contract between you (“Customer”) and CC Ortho Technology Limited, a company with its principal place of business at Merchants House, 27-30 Merchants Quay, Dublin 8
Dublin D8, Ireland (“Clearcaps”).
By submitting a Case Submission Form or Case Revision Form to Clearcaps and accepting delivery of products from Clearcaps, Customer agrees to be bound by and accepts these terms and conditions. Customer and Clearcaps may each be referred to herein as a “Party” or collectively as the “Parties”.
1. Case Acceptance and Payment
Payment of lab fees is due upon case acceptance by Clearcaps. Cases are accepted upon receipt if:
• The Case Submission or Revision Form is complete;
• The records are complete; and
• There are no special instructions that would require Customers’s explanation or decision.
When cases are accepted, the credit card on file is charged in the amount of the current price for the product, factoring in any coupons or discount certificates included with the case submission. Cases that are not automatically accepted are not charged. Customer will be contacted for consultation if this occurs.
2. Cancellation and Refunds
If Customer cancels a case before delivery of the Treatment Setup, Customer will not incur any cancellation fee. For cases cancelled after delivery of the Treatment Setup, but before Customers’s approval of the Treatment Setup, Customer will be charged a €195 cancellation fee. Cases cancelled after Customer’s approval of the Treatment Setup will be charged the full fee. Lab fees for cases cancelled before delivery of the Treatment Setup will be refunded in full. Lab fees for cases cancelled after delivery of the Treatment Setup will be credited to Customer’s account minus any applicable cancellation fees.
3. Shipment and Delivery
Clear Aligners will not be fabricated until Customer approves the Treatment Setup. Customer should receive the Treatment Setup for a case within 2 to 3 weeks of case submission and acceptance. The first phase of clear aligners will be fabricated and shipped within 2 to 3 weeks of Customers’s approval of the Treatment Setup. Delivery dates are estimates. Clearcaps shall not be liable for any damages, losses or expenses incurred by Customer if Clearcaps fails to meet the estimated delivery dates. Title to products shipped under this Agreement and risk of loss or damage during shipment pass from Clearcaps to Customer upon delivery to the address specified by Customer. Shipping of clear aligners and the records required for original case submissions within the EC is included at no additional cost in the lab fee. Providers in other territories must prepay an additional €95 shipping fee per case. Pricing is subject to change.
Customer shall not submit original records to Clearcaps. Records submitted to Clearcaps become the property of Clearcaps and will not be returned to Customer. Customer shall obtain patient’s informed consent for Customer to provide such patient’s medical records to Clearcaps as necessary for Customer’s treatment of the patient.
5. Customer Representations
Customer represents and warrants to Clearcaps that: (i) Customer is licensed to practice dentistry and/or orthodontics in the location where, and at all times during which, treatment is being provided (ii) Customer has the proper training, expertise and/or experience to perform procedures associated with and/or using Clearcaps clear aligner products; (iii) Customer’s use of Clearcaps products will be in accordance with all applicable medical and dental standards and used in compliance with Clearcaps’ product specifications; and (iv) Customer has obtained an executed Informed Consent and Agreement, from each patient Customer treats using Clearcaps clear aligner products.
6. Warranties and Disclaimer
Clearcaps warrants that its products: (i) shall conform to the specifications provided by Customer in the Case Submission Form and as contained in the Treatment Setup approved by the Customer; and (ii) are free from defects in material and workmanship. Clearcaps shall not be liable for (i) any defects that are caused by neglect, misuse, or mistreatment of its products by any third party, (ii) for any products that have been altered or modified in any way by an individual or entity other than Clearcaps, or (iii) for any products being used in combination with other third party products. Moreover, Clearcaps shall not be liable for any defects that result from Customer’s specifications or instructions for such products. This limited warranty expires three (3) months after shipment of the product. If any Clearcaps product fails to conform to the warranty set forth above, Clearcaps’s sole liability, at its option, shall be to: (i) repair or replace such product; or (ii) credit Customer’s account for such product. If Clearcaps elects to repair or replace such product, it shall have a reasonable time to repair such products or provide replacements. Repaired products shall be warranted for the remainder of the original warranty period. Replaced products shall be warranted for a three (3) month full warranty period.
EXCEPT AS SET FORTH ABOVE, CLEARCAPS HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR ANY SPECIFIC PURPOSE.
7. Limitations of Liability
IN NO EVENT SHALL CLEARCAPS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE PRODUCTS PROVIDED HEREUNDER, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY WHETHER IN NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, CONTRACT, TORT, INDEMNITY OR ANY OTHER CAUSE OR THEORY WHATSOEVER. EXCLUDED DAMAGES INCLUDE LOSS OF PROFITS, LOSS OF USE AND COSTS OF REPLACEMENT OR SUBSTITUTE PRODUCTS. IN NO EVENT SHALL CLEARCAPS’ AGGREGATE MONETARY LIABILITY FOR DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY USE OF ANY PRODUCT PROVIDED HEREUNDER, EXCEED THE TOTAL AMOUNT PAID TO CLEARCAPS BY CUSTOMER FOR THE PARTICULAR PRODUCTS SOLD UNDER THE AGREEMENT FOR WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PARTICULAR PRODUCTS SOLD TO CUSTOMER UNDER THIS AGREEMENT, OR THE EXISTENCE OF MORE THAN ONE AGREEMENT WITH THE CUSTOMER OR THE SALES OF ADDITIONAL PRODUCTS TO THE CUSTOMER SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS CLEARCAPS AND/OR ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL LIABILITY, OBLIGATIONS, LOSSES, CLAIMS, ACTIONS, DAMAGES, PENALTIES, FINES, DEMANDS OR SUITS AND ALL RELATED COSTS, ATTORNEY’S FEES AND EXPENSES OF ANY KIND AND NATURE WHATSOEVER ARISING UNDER ANY THEORY OF LEGAL LIABILITY (A ”CLAIM”) THAT MAY BE ASSERTED AGAINST CLEARCAPS ARISING OUT OF, OR RESULTING FROM, OR RELATING TO: (I) THIS AGREEMENT OR USE OF PRODUCTS SOLD UNDER THIS AGREEMENT; (II) ANY BREACH OF OR FAILURE OF CUSTOMER TO ABIDE BY ANY TERM OF THIS AGREEMENT; (III) ANY BREACH OR ALLEGED BREACH OF ANY REPRESENTATIONS OR WARRANTIES MADE BY CUSTOMER IN THIS AGREEMENT OR ANY INCORRECT INFORMATION PROVIDED BY CUSTOMER OR CUSTOMER’S PATIENT TO CLEARCAPS; OR (IV) CLEARCAPS’ PROVIDING OF OR FAILURE TO PROVIDE PRODUCTS TO CUSTOMER, UNLESS THE PROVIDING OF OR FAILURE TO PROVIDE SUCH PRODUCTS WAS DUE TO CLEARCAPS’ WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
The obligation of the Customer to defend Clearcaps against any Claim is separate and distinct from the obligation of indemnity set forth in this Agreement. Customer has the right and obligation to assume the defense of any Claim with counsel chosen by Customer and reasonably acceptable to Clearcaps provided that counsel to Clearcaps may participate in the defense of the Claim with counsel for Customer, at the expense of Clearcaps. Customer will not have the right to assume the defense of a Claim made against both Clearcaps and Customer if counsel for Clearcaps advises in writing that a conflict in interest between Clearcaps and Customer would under applicable ethical principles preclude a single counsel or firm from defending both parties.
9. Relationship of Parties
The Parties intend by this Agreement that Customer is and at all times shall be an independent contractor and not the agent or employee of Clearcaps. Neither this Agreement nor any contract with Clearcaps nor any course of dealing or practice shall be interpreted as creating, or shall be deemed to create, any employer-employee, principal-agent, partnership, joint venture or other relationship between Customer and Clearcaps.
10. Advertising and Marketing
Clearcaps reserves the right to use Customer’s name in any advertising and marketing materials, provided that Customer has the right to review such marketing materials before final publication or distribution.
This Agreement shall not be assigned by either Party hereto without the prior written consent of the other Party.
12. Successor and Assigns
This Agreement shall be binding upon and shall inure solely to the benefit of the Parties hereto and their respective successors and shall not be for the benefit of any other person, persons, or legal entities.
13. Entire Agreement and Amendment
This Agreement, the Clearcaps Case Submission Form, and the Informed Consent & Agreement shall constitute and contain the entire agreement of the Parties and supersede any and all prior negotiations, correspondence, understandings and agreements between the Parties respecting the subject matter hereof. This Agreement may be modified only by an agreement in writing duly executed by the Parties hereto.
If any provision of this Agreement is or shall be deemed a violation of any applicable law, rule or regulation, such legal invalidity shall not void this Agreement or affect the remaining terms and provision of this Agreement and this Agreement shall be construed and interpreted to comply with all laws, rules or regulations.
15. Force Majeure
Clearcaps cannot be in default or breach by reason of any failure of its performance under this Agreement if such failure results, whether directly or indirectly, from fire, explosion, strike, freight embargo, act of God, or of war, civil disturbance, act of any government, de jure or de facto, or any agency or official thereof, labor shortage, transportation contingencies, severe weather, default of manufacturer or supplier, quarantine or restriction, epidemic or catastrophe, lack of timely instructions or essential information from Customer or any other third party, or other conditions beyond the control of Clearcaps.
All notices, demands, requests, approvals and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been given or made as of the date delivered or mailed if delivered personally or mailed by certified mail (postage prepaid, return receipt requested), or on the date transmitted if transmitted by facsimile or electronic mail, to Customer at the address provided by Customer.
The failure of either Party at any time or times to require performance of any provision hereof shall in no manner affect the right to enforce the same. No waiver by either Party of any condition, or of the breach of any term, provision, covenant or warranty contained in this Agreement, shall be deemed to be or construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or of the breach of any other term, provision, covenant or warranty.
18. Governing Law
All services, transactions and agreements and/or statements will be governed by the laws of Ireland, or by the laws of the country or state the Customer performs the treatments with Clearcaps products.