ORTHOAMERICA HOLDINGS, LLC
dba RMO, formerly known as Rocky Mountain Orthodontics

1. ORTHOAMERICA’S COMMITMENTS
   
   1. Product Warranties. i) The Product when shipped will meet ORTHOAMERICA HOLDINGS, LLC’s (“ORTHOAMERICA”) then current Product sales specifications (“Specifications”); and ii) ORTHOAMERICA will convey the Product with good title, free from any lawful lien or encumbrance.
   2. Specifications. ORTHOAMERICA will notify Customer if the Specifications are changed.
   3. Products may be returned for credit within 60 days of shipping only under the following conditions:
      
      • Products must be new, in sellable condition, and in original unopened packaging;
      • Custom products may not be returned;
      • Returned products must be accompanies with a Return Material Authorization (RMA) Number and note explaining the reason for the return. Contact RMO Customer Service to acquire your RMA number.
      • Returned products may be subject to a 15% restocking fee.

2. CUSTOMER’S COMMITMENTS
   
   1. Customer will pay all taxes, import fees and duties that are increased or levied, now or in the future, in connection with the manufacture, sale, transportation, use or disposal of the Product.
   2. Payments/Credit. Unless there is a contract signed by ORTHOAMERICA or purchase order acknowledgment to the contrary, Customer will pay to ORTHOAMERICA the Price for the Product(s) prior to shipment of the Product(s).  Time of payment is of the essence.  If (1) Customer does not pay on time or (2) Customer’s financial responsibility becomes unsatisfactory and ORTHOAMERICA deems itself insecure, then ORTHOAMERICA may defer or cancel shipments, accelerate the due date on all amounts owed ORTHOAMERICA, require cash payments or other security and/or terminate these Terms, in each case without liability and without waiving any other remedies ORTHOAMERICA may have against Customer.  Customer agrees to pay all of ORTHOAMERICA’s collection costs, including prompt payment of reasonable legal fees and costs.  ORTHOAMERICA may charge Customer the maximum interest allowed by law on all overdue amounts. Customer acknowledges that ORTHOAMERICA is under no obligation to sell Product to Customer, and each Purchase Order is a separate arm’s-length transaction.
   3. Responsible Practices. Customer will (i) be solely responsible for determining the suitability of Product; (ii) familiarize itself with any product literature or information ORTHOAMERICA provides ; (iii) adopt and follow safe and appropriate handling, storage, transportation, use, treatment and disposal practices with respect to the Product, and the containers thereof, including such special care and practices as Customer’s use of the Product requires including, without limitation, all such practices required by federal, state and local government statutes, rules, regulations or ordinances; (iv) provide appropriate warnings to and instruct its employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, treatment, transportation and disposal of the Product, and the containers thereof; and (v) comply with applicable health, safety, security and environmental laws, and take action necessary to avoid dangers to persons, property or the environment.  ORTHOAMERICA may immediately suspend Product shipments and/or terminate these Terms on fifteen (15) days notice if Customer fails to comply with any of its commitments under this subsection.
   4. Inspection. Customer shall promptly, and in any event prior to use and/or commingling, inspect Product shipments for any damage to packaging, shortage or non-conformance to these Terms.  All claims for damage to packaging, shortage or non-conformance which could reasonably be discoverable in the course of such investigation shall be waived unless Customer notifies ORTHOAMERICA in accordance with Section 7.
   5. Indemnity. Customer will indemnify and hold ORTHOAMERICA harmless for all claims, damages and related costs, including prompt payment of reasonable legal fees and costs, arising out of Customer’s noncompliance with any of its commitments under subsection c) and d) above.
   6. No Reselling. Customer understands and acknowledges that it is not engaged as a distributor, re-packager, or re-labeler of the Product(s), and that any distributing, repackaging, or relabeling the Product(s) by Customer is strictly prohibited, unless otherwise agreed in writing by ORTHOAMERICA.
3. CHANGES TO TERMS

ORTHOAMERICA may increase Price, change transportation terms, change payment terms, and/or change the notice provision, at any time and from time to time, with or without notice. These changes will be deemed accepted unless Customer objects in writing within fifteen (15) days of the change.  ORTHOAMERICA shall advise Customer within fifteen (15) days from receipt of timely written objection from Customer whether ORTHOAMERICA shall:

1. 1. continue to supply Product on terms and conditions in effect prior to the announced change;
   2. enter into negotiations with Customer; or
   3. delete affected Product from these Terms.

If ORTHOAMERICA elects to enter into negotiations as allowed under b) above, and if, within sixty (60) days from the date of ORTHOAMERICA’s notice of change, a written agreement between the parties has not been reached and ORTHOAMERICA has not agreed to continue to supply on the terms and conditions in effect prior to the announced change, then either party may, upon written notice to the other party, terminate the negotiations and delete the affected Product from these Terms.  Unless otherwise agreed in writing as part of the negotiations, price and other terms applicable during the negotiating period shall be those which ORTHOAMERICA implemented by its initial notice.

4. FORCE MAJEURE / EXCUSED PERFORMANCE

Performance is excused when (a) there is any contingency beyond the reasonable control of ORTHOAMERICA or Customer including, for example, war or hostilities, acts of God, accident, fire, explosion, public protest, breakage of equipment, epidemic, pandemic, acts of terrorism, civil unrest, activity of a governmental authority (including, for example, the passage of legislation or the failure to grant an export license), or labor difficulties and/or labor strikes which interferes with ORTHOAMERICA’s or Customer’s production, supply, transportation or consumption practice; or (b) ORTHOAMERICA is unable to obtain raw materials, power or energy on terms ORTHOAMERICA deems commercially acceptable.  During times when performance is excused, all quantities of affected Product will be eliminated from these Terms without liability and ORTHOAMERICA will allocate its supplies of raw materials and Product among their various uses in any manner that ORTHOAMERICA determines is fair and reasonable, but these Terms will otherwise remain in effect.  ORTHOAMERICA will not be obligated to obtain raw materials, intermediates, or Product from other sources, or to allocate raw materials, intermediates, or Product from ORTHOAMERICA’s internal use.  The foregoing provisions shall in no event relieve Customer of its obligation to timely pay in-full a Product invoice.

5. EXCLUSION OF ALL OTHER WARRANTIES

THE WARRANTIES IN SECTION 1.a) ABOVE ARE ORTHOAMERICA’S SOLE WARRANTIES RESPECTING PRODUCT INCLUDING WITHOUT LIMITATION PRODUCT QUALITY AND PERFORMANCE, AND ARE MADE EXPRESSLY IN LIEU OF AND EXCLUDE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES PROVIDED BY STATUTE, COMMON LAW OR OTHERWISE.

6. LIMITATION OF LIABILITIES
   
   1. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   2. CUSTOMER’S EXCLUSIVE REMEDY, AND ORTHOAMERICA’S TOTAL LIABILITY, FOR ALL CLAIMS ARISING OUT OF THESE TERMS (INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY AND TORT) ARE LIMITED TO CUSTOMER HAVING THE OPTION OF REPLACEMENT OR REPAYMENT OF THE PURCHASE PRICE PAID FOR THE PRODUCT WHICH IS THE SUBJECT OF THE CLAIM(S).
   3. CUSTOMER ASSUMES ALL RISKS AND LIABILITIES RESULTING FROM THE USE OF THE PRODUCT SUPPLIED UNDER THESE TERMS.
   4. In no event shall ORTHOAMERICA’s liability for any claim, loss, liability or Damages be in excess of the Customer’s purchases during the full twelve (12) months immediately prior to the claim. 
7. NOTICE OF CLAIMS

ALL CLAIMS RELATING TO QUALITY, QUANTITY, WEIGHT, CONDITION, AND LOSS OR DAMAGE TO THE PRODUCT CONTAINED IN ANY DELIVERY, AND ALL OTHER CLAIMS ARISING IN CONNECTION WITH THESE TERMS, WILL BE WAIVED BY CUSTOMER UNLESS MADE IN WRITING TO ORTHOAMERICA WITHIN twenty-one (21) DAYS AFTER EITHER (a) TENDER OF DELIVERY TO, AND REFUSAL TO ACCEPT DELIVERY BY, CUSTOMER, (b) ACCEPTANCE OF DELIVERY BY CUSTOMER, (c) THE DATE(S) SPECIFIED FOR DELIVERY, OR (d) THE DATE ON WHICH CUSTOMER BECOMES AWARE, OR SHOULD BECOME AWARE, OF THE FACTS ON WHICH SUCH CLAIM IS BASED, WHICHEVER SHALL OCCUR OR APPLY IN ORTHOAMERICA’ SOLE DISCRETION.

8. ASSIGNMENT
   
   1. These Terms are not transferable or assignable by either party without prior written consent of the non-assigning party except that Customer hereby consents, without further notice from ORTHOAMERICA, to ORTHOAMERICA’s potential future assignment or delegation of (i) some or all of ORTHOAMERICA’s obligations hereunder to any Affiliate, in which case the Affiliate may effect delivery of the Product and invoice Customer directly, (ii) these Terms and all of ORTHOAMERICA’s rights and obligations hereunder, on a product-by-product basis, to any Affiliate, or (iii) to a buyer of ORTHOAMERICA whether through an asset purchase, a stock purchase, or a merger, in one or a series of related transactions.
   2. In the event Customer transfers its business involving Product under these Terms, through a sale or transfer of stock or assets, the new owner(s), as a condition of the sale or transfer and subject to ORTHOAMERICA’s express written consent, shall be obligated by Customer to assume all of Customer’s obligations under these Terms relating to the affected Product.
   3. “Affiliate” means with respect to any entity, any other entity directly or indirectly owning, owned by, or under common ownership with, such entity; for purposes of this definition, “owning”, “owned” and “ownership” shall mean the possession, directly or indirectly, of an ownership interest, directly or indirectly through one or more intermediaries, of at least fifty percent (50%) as a result of ownership of stock or other voting securities, contractual relationship or otherwise.
   4. If these Terms are assigned in accordance with subsections a) or b) above, all terms and conditions contained herein shall remain in full force and effect.

9. SHIPPING/TRANSFER OF TITLE/RISK OF LOSS
   
   1. The shipping terms contained in any sales contract signed by ORTHOAMERICA or purchase order acknowledgment for the Product shall govern with respect to transfer of title and risk of loss of such Product from ORTHOAMERICA to Customer.
   2. Unless otherwise directed by Customer, Customer agrees that Seller shall select the carrier and pre-pay the freight and insurance, which shall be charged to Customer plus an administrative fee, prior to shipment of the Products. Unless specified otherwise, Customer is responsible for clearance of the Product through customs at the port of destination, along with all duties, taxes and fees in connection therewith.
   3. Unless otherwise specified in a sales contract signed by ORTHOAMERICA, or purchase order acknowledgement, title to Product shall be deemed to pass at FOB OrthoAmerica’s plant. Delivery times are approximate and are dependent upon prompt written receipt by ORTHOAMERICA of all information necessary to proceed with the work without interruption.  If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Customer shall so notify ORTHOAMERICA in writing within twenty-one (21) days after receipt.
10. ORTHOAMERICA INTELLECTUAL PROPERTY

Customer acknowledges that all patents, trademarks and copyrights relating to the Products are the property of ORTHOAMERICA.  Customer shall not take any action that infringes upon any trademark, copyright, patent, or other intellectual property of ORTHOAMERICA.  In addition, Customer shall not use any trademark of ORTHOAMERICA on or in relation to any product not originating from ORTHOAMERICA.  Customer shall not use any trademark of ORTHOAMERICA on or in relation to any Product which Customer repacks or re-labels for resale  without obtaining written authorization from ORTHOAMERICA, specifying the terms and conditions of such use.  If Customer uses any product trademark of ORTHOAMERICA in any price list, advertisement or product literature, Customer shall identify the trademark as a “Trademark of ORTHOAMERICA Holdings, LLC or an affiliated company of ORTHOAMERICA.”

11. GENERAL
    
    1. In the event of any conflict between any terms in this document and in any sales contract signed by ORTHOAMERICA or purchase order acknowledgement, the terms of such sales contract or purchase order acknowledgment shall prevail. Except for the foregoing, however, this document, together with its attachments and addenda, constitutes the complete and final agreement between Customer and ORTHOAMERICA regarding Product, and supersedes all prior understandings and agreements, whether written or oral, as to the subject matter herein.  This document may be modified only by a written amendment, expressly stated as such, signed by both parties.
    2. This Agreement is executed in English. In the event this Agreement is translated into a language or languages other than English, this version in English shall be controlling on all questions or interpretations and performance.
    3. The rights and obligations under Sections 2, 5, 6, 7, 8, 9, 10, and 11 will survive the cancellation, termination or expiration of these Terms.
    4. Notwithstanding anything to the contrary contained herein, Customer shall defend, indemnify and hold ORTHOAMERICA harmless from and against all claims, liabilities, costs and expenses (including, but not limited to, those related to injury to or death of Customer’s employees, and including prompt payment of reasonable legal fees) arising from or connected with any third party claims related to injury to or death of any person or persons, or damage to or loss of property in any way arising from or connected with the possession, handling, processing or use of the Product(s) by Customer, except those resulting solely from the use of Product(s) not conforming to the contracted Specifications, which non-conformity was not known to Customer. Customer hereby waives and forever releases ORTHOAMERICA from any claims and liabilities associated with Customer’s prior status as a dealer, distributor, re-seller or the like.
    5. The failure of a party to exercise its rights on one occasion, including the obligation to supply Product, shall not be deemed to be a waiver of the right to exercise those rights in the future.
    6. If any provision of these Terms is declared invalid by any court or government agency, all other provisions shall remain in full force and effect.
    7. Each party represents and warrants that it understands and shall comply with the requirements of the U.S. Foreign Corrupt Practices Act and all other applicable anti-bribery and anti-corruption laws of the jurisdictions under which each party is or may be acting hereunder.
    8. These Terms will be governed by the law of the State of Indiana, USA (“Governing Law”) without reference to its principles of conflict of laws. Additionally, ORTHOAMERICA and Customer hereby submit to the exclusive jurisdiction, for any lawsuit arising out of these Terms, in any court located in a major city of the country of the Governing Law that is closest to the applicable ORTHOAMERICA principal or registered office (“Jurisdiction”).  The U.N. Convention on Contracts for the International Sale of Goods (Vienna, 11 April 1980) or any successor thereto is expressly excluded, unless a court of competent jurisdiction in the country in which the lawsuit is brought prohibits these Terms from being governed by the Governing Law, in which case these Terms will be governed by the U.N. Convention on Contracts for the International Sale of Goods or any successor thereto.  The Uniform Law on the International Sale of Goods, as well as the Uniform Law on the Formation of Contracts for the International Sale of Goods, is expressly excluded.
    9. Customer agrees to comply with all export laws of the country from which the Product originates (“ORTHOAMERICA’s domicile”) and all import laws of any country having jurisdiction over Customer or the transactions contemplated by these Terms.
    10. ORTHOAMERICA is subject to application of the export control laws of ORTHOAMERICA’s domicile. In this capacity ORTHOAMERICA may be prohibited from directly or indirectly exporting and/or selling products, or allowing third parties to directly or indirectly sell or export products, into certain embargoed or restricted countries and to certain restricted or denied customers under the export control laws of ORTHOAMERICA’s domicile.  Prohibited transactions include any transaction in which Product(s) are shipped to or through the embargoed countries or which involve the restricted or denied customers.  Customer shall not directly or indirectly, sell or export the Product(s) to any of these embargoed, restricted or denied persons, entities or countries, nor sell or otherwise transfer any such Product to any customer under circumstances where it has knowledge or reason to believe that the Product will be sold or exported to any such embargoed, restricted or denied person, entity or country.  The Customer further certifies that, to the best of its knowledge, the Product sold and delivered by ORTHOAMERICA will not in any way be used for purposes that are prohibited under national and international regulations. Customer agrees to  check the website of the U.S. Bureau of Industry and Security (bis.doc.gov) for updates on embargoed and restricted countries. As of the date of these Terms and Conditions, embargoed countries include Cuba, Iran, Syria, and North Korea. Restricted countries include but are not limited to the Balkans, Belarus, the Central African Republic, Congo, Lebanon, Liberia, Libya, Nicaragua, Somalia, Sudan, the Crimea region of Ukraine, Venezuela, Yemen, and Zimbabwe. NO SALES SHALL BE MADE INTO ANY OF THE EMBARGOED OR RESTRICTED COUNTRIES WITHOUT THE EXPRESS WRITTEN AUTHORIZATION OF ORTHOAMERICA AND PROPER LICENSING AND DOCUMENTATION.
    11. Shipping and delivery dates are approximate and are given by ORTHOAMERICA in good faith, but are not guaranteed. Customer shall be responsible for all storage and other costs relating to Customer’s failure to accept delivery pursuant hereto.
    12. In the event that Customer files or has filed against it a petition for relief under the insolvency laws, receivership laws, bankruptcy laws, or the equivalent laws of any jurisdiction, ORTHOAMERICA, in its sole discretion, shall have the right to stop any shipments of the Product or any other goods then in transit to Customer, and thereby exercise an immediate right of possession thereto.