ORATECH, LLC USA
Terms & Conditions of Agreement to Supply Product
Services. OraTech shall perform the services set forth in the foregoing quote (hereinafter “Services”). The parties may agree, subsequent to this agreement, to further specifications, which shall set forth requirements specific to the Services (hereinafter “Specifications”), and which shall be binding on the parties only after signature by both parties. Compliance by OraTech with the Specifications shall constitute complete and final performance by OraTech. Customer shall clearly set forth any special requirements related to packaging, governmental regulation, mixing, testing, storage, environmental parameters, or inspection of the Product on its purchase order for Services. If no regulatory classification is clearly shown on Customer’s purchase order, OraTech will assume that the least restrictive regulatory classification applies to the Services. If no special requirements related to packaging are provided in Specifications, OraTech shall use standard procedures to package the Product.
Pricing and Payment Terms. Payments are due according to Payment Terms established, unless agreed otherwise by the parties in writing. OraTech shall be entitled to halt all work on Customer’s pending orders and to charge interest of eighteen percent (18%) of the outstanding balance if payment on any order is late. Should OraTech’s costs increase due to circumstances beyond its control, it shall be entitled to revise the pricing after consultation with Customer. If the parties cannot reach agreement for a new price based on unforeseen cost increases, OraTech shall be entitled to cancel any order so affected.
Shipping. OraTech shall ship the completed Product to Customer via a common carrier acceptable to Customer, FOB OraTech’s dock in South Jordan, Utah. Customer shall be responsible for all shipping costs, insurance, and loss or damage to product during shipping. Any special shipping instructions must be included in Specifications as part of this Agreement.
Storage. Should Customer request that OraTech delay shipping the Product beyond the original agreed upon ship date, OraTech shall nevertheless invoice for the Product on the original ship date. OraTech, at its election, may store the Product for a fee of FIFTY DOLLARS ($50.00) per month per pallet.
Specification. Written Product Specifications must be provided by the Customer. Should the Customer require the services of OraTech in determining and finalizing Specifications such services, including R&D, DD&D, Stability Testing, Graphic Revisions, etc. may be billed to customer at a rate of $150.00 per hour. Any revisions made to Product Specification are subject to charges if Customer has requested OraTech make revisions. Additionally, Customer shall purchase from OraTech, at OraTech’s documented cost, all raw materials/components which have been purchased by OraTech for the manufacture of the Product and either still in the possession of OraTech or having been ordered but not yet delivered by OraTech that become obsolete by a Product revision.
Customer Supplied Bulk Product and Components. Customer shall supply OraTech with the product to be prepared (hereinafter “Bulk Product”) in quantities sufficient to meet Customer’s requirements. OraTech may provide customer with an estimate of the amount of Bulk Product necessary to produce the units ordered by Customer, but it accepts no responsibility for shortfall in Bulk Product and shall not be liable for yield loss on Customer supplied Bulk Product or components. Should OraTech discover defects in Bulk Product or components supplied by Customer after commencing work, OraTech shall be entitled to cease work and shall inform Customer of such defects, after which OraTech and Customer shall work together to cure such defects at Customer’s expense. Should resolution of such defects not be reached through cooperation, OraTech shall be entitled to terminate work and receive reimbursement for its out-of-pocket expenses related to the order for which work is ceased due to the defect.
Custom Tooling. Unless the parties agree otherwise in a writing signed by the parties, any custom tooling used by OraTech, even if paid for in full by Customer, shall belong exclusively to OraTech. OraTech retains all intellectual property and other proprietary rights relating to such tooling and shall not be required to turn over any tooling specifications or other information related to such tooling to Customer. Any exception to tooling ownership must be referenced in the Specifications.
Termination. In the event Customer terminates this agreement for any reason, Customer shall purchase from Oratech, at Oratech’s documented cost, all raw materials/components which have been purchased by Oratech for the manufacture of the Product and either still in the possession of Oratech or having been ordered but not yet delivered by Oratech as of the date of termination.
Customer’s Representations and Warranties. Customer warrants to OraTech the following: (1) OraTech’s packaging of the Product or Bulk Product for Customer does not infringe upon any patent, trade secret, or other proprietary or intellectual right of any third party; (2) that it is unaware of any existing claim regarding the safety or effectiveness or suitability of the Bulk Product or the Product; (3) that the Bulk Product supplied by Customer is the substance claimed by Customer and that it is compatible with the packaging required by Customer; and (4) that the Bulk Product actually has the shelf life claimed by Customer.
Indemnification. Customer hereby agrees to defend, indemnify and hold OraTech, its agents, directors, officers, employees, successors, and assigns harmless for, from and against any and all liability, actions, claims, losses, costs, damages, fines, penalties, and expenses (including, but not limited to, reasonable and necessary investigation and attorney fees), threatened and/or incurred, by reason of or arising out of Customer’s breach of any of its warranties or representations specified herein or due to Customer’s negligence or due to any other act or omission of Customer.
Confidential Information. In the event the parties have signed a confidentiality or non-disclosure agreement prior to the date of this Agreement, such confidentiality or non-disclosure agreement shall remain in effect. OraTech’s policy is to keep confidential all information received from Customers, but if Customer has specific confidentiality concerns, it will enter into a separate confidentiality agreement with OraTech.
Disclaimer of Warranty and Liability. OraTech agrees to package the customers Product pursuant to the Specifications. However, even if OraTech is made aware that a claim may exist, it specifically disclaims any other warranty. SPECIFICALLY, ORATECH PROVIDES THE PRODUCTS “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER BEARS ALL RISK RELATING TO QUALITY AND ACCEPTABILITY OF THE PRODUCT, recognizing that the Service is performed pursuant to Customer’s Specifications and that OraTech is a contractor retained to perform the Services and not to consult with regard to the effectiveness, safety, shelf life, compatibility with packaging, or suitability of the Product or its packaging. In no event shall OraTech be subject to claims for lost profits, consequential, or incidental damages arising out of the services rendered by OraTech or its performance under this Agreement.
Acceptance by Customer. Customer agrees to inspect the Product within thirty (30) days of delivery by OraTech to the common carrier. It agrees to immediately notify OraTech of any non-conforming Product, which shall be returned for inspection by OraTech. OraTech shall issue a Returned Goods Authorization number if it determines the Product is non-conforming, and credit shall be given for the returned Product only after the issuance of such number. Failure by Customer to give notice of any non-conforming Product within said thirty (30) day period shall be deemed unconditional acceptance by Customer of the Product and a waiver of any claims for non-compliance with the Specifications and claims that the Product need not be accepted by Customer for any reason whatsoever.
Performance. OraTech agrees to take commercially reasonable steps to perform its obligations under this Agreement. OraTech will not be liable for delays or defects partly or solely caused by third parties or that are beyond the reasonable control of OraTech, such as war, terrorism, strikes, governmental action, shortage of material or labor, etc.
Non-waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
Final and Complete Integration. This Agreement is a final and complete expression of the intent of the parties entering into this Agreement. It supersedes any inconsistent or additional terms of any Specifications, purchase order or other subsequent writing unless such writing is signed by OraTech and expressly amends this Agreement, referring to it by date and indicating that the terms hereof are amended.
