OrthoFlex Orthodontic Products Terms of Sale

Sales to customers:

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1. Effective Date of Terms and Conditions; Modification; Website

These Terms and Conditions of Sale (“Terms”) are effective for all purchases and orders placed by any buyer (“Buyer” or “You”) with Ortho Solutions, LLC (“OrthoFlex” or “Company” or “we/us”) on or after April 01, 2019 (the “Effective Date”).  Unless otherwise agreed in writing by OrthoFlex, on and after the Effective Date, these Terms will supersede all prior terms and conditions regarding the purchase by Buyer and sale by OrthoFlex of any and all dental or medical devices or other dental or medical products manufactured or sold by OrthoFlex (the “Products”).  OrthoFlex reserves the right to further modify these Terms from time to time (the “Modified Terms”) either upon written notification to Buyer by Canada post mail, electronic mail or by posting any changes on the OrthoFlex Products website (www.ortho-direct.com or www.OrthoFlex.ca) (the “OrthoFlex website”), with the most current terms on the website and the Effective Date of these Terms to be at the time Buyer thereafter places an order or purchases the Products. 

 

THE MODIFIED TERMS SHALL BE EFFECTIVE FOR ALL ORDERS PLACED BY BUYER AND ALL PURCHASES WITH OrthoFlex ON OR AFTER THE EFFECTIVE DATE SET FORTH THEREIN.  BUYER SHALL BE DEEMED TO HAVE ACCEPTED THESE TERMS AND ANY MODIFIED TERMS UPON THE EARLIER TO OCCUR OF (1) BUYER SIGNING OR OTHERWISE AUTHENTICATING THESE TERMS OR (2) BUYER CONTINUING TO USE THE WEBSITE AND/OR PLACING AN ORDER WITH OrthoFlex OR MAKING A PURCHASE FROM OrthoFlex BY ANY METHOD AFTER THE APPLICABLE EFFECTIVE DATE.  PLEASE NOTE THAT BY ACCESSING OR USING ANY PART OF THE WEBSITE OR PLACING ANY ORDER OR MAKING ANY PURCHASE, BUYER AGREES THAT BUYER HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS AND ANY MODIFIED TERMS, INCLUDING THE APPLICABLE LAW AND VENUE PROVISIONS. IF BUYER DOES NOT AGREE TO BE SO BOUND, BUYER SHOULD NOT ACCESS OR USE THE WEBSITE OR MAKE A PURCHASE FROM OrthoFlex.

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1. The Practice of Buyer

Our customer is the doctor who orders the Product and not the doctor’s patient.  If a practice, partnership, corporate body or other legal entity for or with which the doctor works is named on the invoice and/or that practice pays the invoice(s), then we are entitled to assume that it is the doctor who uses the OrthoFlex Products and places orders with the authorization of, for and on behalf of that entity (the ”Practice”).  Under these circumstances the Practice will also be our customer, and the doctor and the Practice shall be jointly and severally liable for obligations in these Terms which are obligations of “Buyer.”  The doctor and the Practice must read and understand these Terms before downloading any materials or software, uploading patient information or placing any order, because in each case, a contract will be formed, and Buyer will be bound by these Terms which will govern that contract.

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1. Limitation of Liability

OrthoFlex does not practice dentistry or any other practice of medicine.  Buyer is solely responsible for the selection and use of Products regardless of any input from OrthoFlex and regardless of the qualifications of the OrthoFlex employee assisting with the selection.   The final medical/dental/orthodontic decision remains at all times with Buyer.  Receipt and acceptance of the order (including phone orders) constitutes a binding order between Buyer and OrthoFlex.

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EXCEPT AS EXPRESSLY PROVIDED IN DYNAFLEX’S WRITTEN WARRANTY STATEMENT BELOW FOR THE PRODUCT AND THESE TERMS, THE PRODUCT IS SOLD “AS IS”, AND OrthoFlex MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND THE PARTIES EXPRESSLY EXCLUDE ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND PRODUCT QUALITY.  IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR INDEMNIFICATION OR OTHERWISE, SHALL OrthoFlex BE LIABLE TO BUYER OR ANY PATIENT OF BUYER FOR ANY, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE DAMAGES OR DAMAGE OF ANY KIND ARISING OUT THE SALE, FUNCTIONING OR THE USE OF ANY PRODUCT PROVIDED, EVEN IF OrthoFlex HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  OrthoFlex SHALL HAVE NO LIABILITY TO BUYER (EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS) OR TO ANY PATIENT OF BUYER HEREUNDER, AND BUYER AGREES TO HOLD HARMLESS AND INDEMNIFY OrthoFlex FOR ANY SUCH CLAIMS.  In addition to the foregoing, OrthoFlex’s warranty obligations shall not apply to the negligence of Buyer, or patients using the Products, including without limitation (i) any use, modification maintenance, repair or combination with other devices not in accordance with written instructions (ii) exposure of the Product to accident or natural causes (such as fire); or (iii) operation of the Product beyond its normal useful life.  Except as otherwise stated, in no event shall the Company’s liability exceed the purchase price of the Products in respect of which damages are claimed.  This is on the basis that Buyer will be able to use this sum to pay a different provider for equivalent products.

In the case of loss or damage to physical property while we are on Buyer’s premises or Buyer is on our premises or on a third party’s premises at our invitation, the sum of Fifty Thousand CAD dollars ($50,000) is the limit of liability for it is the amount we have estimated is the maximum value of property which we might reasonably foresee might be damaged.

Nothing in these Terms shall exclude or limit in any way our liability for: death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, any breach of obligations implied by applicable law and in respect of which obligations the law prohibits us from so limiting or excluding its liability for those losses or any other matter for which it would be illegal or unlawful for us to so limit or exclude or attempt to so limit or exclude our liability.

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1. Warranty and Conditions

OrthoFlex warrants that the Products will conform to their description, they will be free from substantial defects in material and workmanship, and they will be of satisfactory quality within the industry for sixty (60) days from the date of delivery.

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THESE WARRANTIES ARE VOIDED IF THE PRODUCT HAS BEEN MISUSED, MODIFIED OR BEEN USED IN COMBINATION WITH THIRD PARTY PRODUCTS OR EXPOSED TO ACCIDENT OR NATURAL CAUSES (SUCH AS FIRE OR EXTREME TEMPERATURES).  NO WARRANTY IS MADE REGARDING THE OUTCOME OF ANY TREATMENT USING THE PRODUCT.  No representative, employee or agent of OrthoFlex is authorized to give any other warranties on behalf of OrthoFlex or modify the limitations set forth in these Terms.

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1. Returns

Buyer may return the Product within thirty (30) days of the delivery for a full credit so long as the product is unused and in its original packaging.

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After thirty (30) days and before sixty (60) days from the date of delivery, OrthoFlex will evaluate any return for a credit subject to a twenty percent (20%) restocking fee.  In our sole discretion, if the Products do not meet the warranties in the Term above or any terms implied by law or imposed by mandatory statutory law and which we have not expressly and lawfully excluded, a refund (subject to reduction for the restocking fee) may be granted.

There are no returns or replacements after sixty (60) days from the date of delivery.

Except where the law requires otherwise, this replacement or refund will be Buyer’s only remedy; however, this does not affect Buyer’s rights under any applicable mandatory law. In no event shall a claim against the warranty be received more than sixty (60) days after delivery of the Product. Buyer is responsible for Products being returned to us.  All returns should be completed via a reputable courier who provides insurance for the full replacement value.  The package must be addressed to the Returns Department, OrthoFlex. OrthoFlex will cover the cost of postage for returns only if it is determined that the Product is defective.  OrthoFlex will inspect the Product for which a warranty claim is being made to determine if such failure is confirmed.  Buyer shall retain title to the Product until we verify the Product does not meet specifications.  If an exclusion applies (e.g. abuse of the Product) or the warranty is otherwise inapplicable, or the Product is not defective, we will contact you to determine whether or not you wish us to send back the Product.  You agree to promptly respond so the matter can be resolved in a timely manner.  If a replacement is warranted, the Company will ship it to Buyer, at the Company’s expense, and retain or destroy the original Product.

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1. Cancellation

OrthoFlex prepares to ship Product as soon as an order is received and most orders are shipped on the same day.  Only If OrthoFlex receives a timely and immediate cancellation of an order before the order ships, will a cancellation be processed.

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1. Indemnity

Buyer shall indemnify, defend and hold OrthoFlex and its affiliates, and each of their respective members, shareholders, managers, officers, directors, employees, agents, representatives and assigness (the “Indemnified Persons”) from any claim, liability, actual or consequential damages, lawsuits, taxes and costs (including attorney’s fees and costs), whether for personal injury, property damage or other, brought by or incurred by the Buyer, Buyer’s employees or any other person, arising out of (i) improper selection, improper application or other (mis)use of the Products purchased by Buyer from the Company, (ii) Buyer’s breach of any agreement with the Company (iii) Buyer’s breach of any agreement between the Buyer and Buyer’s patient or any acts or failures in respect of a patient (iv)  dealings with Buyer’s national regulators, licensing or professional bodies in relation to Buyer or the Practice (v) Buyer’s failure to comply with all applicable foreign, Canadian federal, provincial or local laws, ordinances, rules, orders and regulations, including without limitation Canadian export control laws and any regulations and orders thereof or failure to provide Company adequate information related thereto (vi) the acts or omissions of Buyer, its agents and employees and others under its direction or control except to the extent such liabilities are caused by or are the direct result of the gross negligence or willful misconduct of the Company.  Buyer shall give Company immediate written notice of any demand, investigation, inquiry, action, suit, proceeding or claim.  Company shall have the right to defend at Buyer’s expense any such liability or claim in which either the Company or Buyer or both are named as defendants, or reasonably are expected to be named.  OrthoFlex’s conduct of the defense shall not diminish Buyer’s obligation to indemnify the Company hereunder.  This indemnity shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms.

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1. Price List and Product Changes

OrthoFlex has a published Product price list which is updated periodically, usually annually.  The Company reserves the right to amend, change, add or discontinue any product published with the price list at any time without advance notice.  This policy also applies to the published price list.  The price that applies to any order will be the published price at the time Buyer places the order with final approval by Buyer and acceptance by the Company. Prices are exclusive of applicable duty tax/sales tax/use tax/VAT/GST/HST/PSTconsumption tax and any other governmental tax, charge or fee and exclusive of shipping, packing and insurance charges.

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1. Credit

The Company may terminate any credit availability within its sole discretion.    Buyer understands that Company is relying on the truth and accuracy of the information provided to Company in any application for credit as well as any other information provided to Company regarding Buyer or Buyer’s Practice.  Buyer authorizes Company to conduct any credit investigation of Buyer deemed necessary, including but not limited to personal credit information about guarantors, general partners, proprietors and individual applicants.  Buyer hereby explicitly authorizes trade and bank creditors to release credit information to the Company on a periodic basis in the sole discretion of the Company.

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1. Payment Terms

Payment terms are strictly thirty (30) days from the date of invoice to be paid in cleared funds in Canadian Dollars.  Time of payment is of the essence.  In addition to other repercussions, Company reserves the right to add 1 ½ % interest per month (18% A.P.R.) (or the maximum interest allowed by law if less) for all amounts past due until paid in full.  Interest shall accrue on a daily basis.  Buyer agrees to pay the interest together with the overdue amount.  Buyer agrees to pay all amounts due in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).  Buyer is responsible for payment of the Company invoices.  In addition, and without prejudice to the responsibility of Buyer, the Practice, if named on the invoice or if the practice habitually pays the Company invoices, is jointly and severally liable with Buyer for the payment of all Company invoices.  Company may therefore claim payment of any sums owed under any agreement against Buyer personally and/or against the Practice. Buyer waives diligence, demand, presentment for payment, notice of nonpayment and protest.

OrthoFlex reserves the right to set credit limits on individual or Practice accounts.  If an account has not cleared its outstanding invoices, the Company reserves the right to place the account on credit hold for which no further Product sale will be undertaken or further orders shall be C.O.D., at the option of the Company.  Buyer agrees to pay a $50,00 service fee for any returned check.  We reserve the right to institute a fee for use of credit or debit cards to pay for product.  Unless otherwise stated, all payments shall be applied to the oldest unpaid invoice first. Buyer shall be responsible to reimburse the Company for all collection costs, including but not limited to reasonable attorney’s fees.

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1. Taxes and Fees

Buyer shall be responsible for any duty tax/ sales tax/use tax/VAT/GST/HST/PST or consumption tax, fee or charge of any nature imposed by any governmental authority upon the sale of any Product to Buyer.  In the event Company is required to pay such tax, fee or charge, Buyer agrees to reimburse Company within ten (10) days of notice of same.  Alternatively, at the Company’s option, Buyer shall remit payment directly to such taxing authority.

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1. Delivery, Delays and Risk of Loss

Unless otherwise agreed in writing, all Products will be sold “Ex works,” OrthoFlex’s works, factory, warehouse or distribution center.  Delivery of Products to the carrier shall constitute delivery to Buyer; thereafter all risk of loss or damage shall be Buyer’s responsibility, with claims to be submitted promptly to the carrier.  Buyer shall be responsible for all freight, insurance and other shipping expenses, unless otherwise agreed in writing.

Products are generally shipped on the same day as the order is made.  All dates are approximate only and the time of dispatch is not of the essence.  

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The Company 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 our reasonable control, including, without limitation, an act of God, act of Buyer or patient, delays cause by our suppliers or subcontractors, 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.  OrthoFlex shall notify Buyer of the happening of any contingency and of the contemplated effect thereof on the delivery of the Product.

Products will be shipped to the delivery address selected by Buyer at the time the order is placed.  Company is not liable for any liability arising out of the Buyer’s failure to provide accurate and complete delivery details.

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If the Products are not delivered, Buyer shall inform the Company promptly who will determine the cause of the delay and, if in accordance with these Terms, OrthoFlex is under an obligation to deliver, the Company shall ship replacement Product and this will be Buyer’s sole remedy in respect of a failed delivery.

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If 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, then delivery of the Products will be deemed to have been completed at 9 AM CST on the fifth (5th) day after such notice.  OrthoFlex shall charge Buyer for redelivery, including insurance, but shall have no obligation to redeliver the Products seven (7) days after the notice to Buyer of the Products readiness for delivery.

1. Inspection of Shipment; Claims; Commencement of Action

Claims for shortages, errors in delivery or defects apparent on visual inspection must be made in writing to Company within three (3) days after receipt of shipment.  Buyer’s failure to give timely notice of the same shall constitute unqualified acceptance of such shipment.

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No other claims against the Company will be considered (including a request for replacement) unless asserted in writing within sixty (60) days after delivery

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Any legal action based upon a breach of these Terms or upon any other claim arising out of the sale of a Product to Buyer (other than an action by the Company for any amount due to OrthoFlex by Buyer) must be commenced within ninety (90) days from the date of the tender of delivery by the Company.

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1. Warranties of Buyer

Buyer expressly warrants and represents that:

• The doctor and/or technician is licensed or registered to practice dentistry and/or orthodontics without restriction in the country and province to which the Products are to be shipped;

• The Practice and/or laboratory has all licenses and authorizations to provide dental treatment in the country and province in which it operates;

• It has the necessary expertise, experience and training to properly perform procedures associated or in conjunction with the Products; and

• It is not purchasing or acquiring Products with the intent that they will be used by any other doctor and/or for the benefit of any patient other than Buyer’s own patient or otherwise outside the country to which the Products are shipped.

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Further Buyer undertakes that Buyer will (with these obligations being conditions of our contract with Buyer):

• Not use the Products if Buyer’s license or registration to practice expires, is not valid, is revoked, suspended or otherwise jeopardized or restricted at any time during the treatment of patients;

• Use the Products only in accordance with generally accepted dental standards;

• Regularly reviews the website to verify Buyer is aware of any changes to pricing or other Terms;

• Provide, upon request, feedback regarding the success of the Products;

• Promptly notify OrthoFlex, and in any event within ten (10) days of any event (in all available detail) relating to Product use on any patient which the Company and/or the Buyer is required to notify any governmental or regulatory authority; and

• Not allow any other person to use the Products. 

1. Good Standing Matters

If any of the following circumstances occur, the doctor and/or Practice will not be in Good Standing with OrthoFlex:

• The Buyer ceases practicing dentistry/orthodontics; or

• Buyer consistently fails to timely pay invoices from the Company or an amount remains due for more than ninety (90) days or Buyer’s ability to timely pay Buyer’s debts is in doubt; or

• Buyer ships Products out of the country to which they were shipped; or

• Buyer misuses the Intellectual Property of OrthoFlex;

If any of those circumstances do occur, Buyer agrees that OrthoFlex may by notice in writing having immediate effect, suspend Buyer’s right to use the Buyer’s Customer ID or to order any further Products.

1. Confidential Information and Intellectual Property Rights

Buyer may become familiar with trade secrets and confidential information of OrthoFlex which derive independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from their disclosure or use (“Confidential Information”).  Buyer agrees not to disclose or utilize any Confidential information including, without limitation, Product specifications, prices, discounts, manufacturing plans and ideas, technical data, customer lists and sales reports to which Buyer has been privy.

All rights in Intellectual Property (including all patents, trademarks, service marks, registered designs, utility models, design right, database rights, copyright, trade secrets) and other Confidential Information, know-how, and all other intellectual and industrial property and rights of a similar or corresponding nature in any part of the world in or relating to the Products, systems and website, or items that the Company prepares or produces for Buyer or patient or makes available to Buyer belong to OrthoFlex absolutely and exclusively.

Buyer shall inform us promptly if Buyer becomes aware of any infringement of our trademarks or other Intellectual Property rights by any person.

1. Data Protection

See our Website Privacy Policy HERE. 

See our HIPAA Policy HERE.

If you have further questions regarding data protection, please contact us.

1. Promotional Materials

Buyer authorizes OrthoFlex or a third party on the Company’s behalf to send programs, training, event, sales and marketing promotions and materials, surveys or other information related to the Products to Buyer’s office via courier, post, facsimile, e-mail and other means unless Buyer has indicated otherwise in writing to the Company.  Buyer has the right to withdraw this consent in writing at any time.

1. Notices

All notices sent by Buyer to OrthoFlex must be sent to the main corporate offices.  The Company may give notice to Buyer at either the e-mail or physical address provided to us in the Buyer’s order.  However, this does not apply to the service of any proceedings or other documents in any legal action.

Notice will be deemed received and properly served 24 hours after an e-mail is sent or three (3) days after the date of posting or provision to a reputable courier service of any letter.  In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post, or recorded by the courier service as received, and in the case of an e-mail that the e-mail was sent to the specified e-mail address of the addressee.

1. Attorney’s fees

In the event OrthoFlex institutes a legal proceeding against Buyer to collect any monies due under the Terms, or if the Company successfully defends any lawsuit instituted by Buyer, whether based on contract, tort or any other legal theory of recovery, OrthoFlex shall be entitled to recover its costs and expenses, including without limitation, reasonable attorney’s fees, collections costs and other expenses incurred by the Company in connection therewith from Buyer.

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GENERAL

1. Interpretation of these Terms

Any phrase introduced by the terms, “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.  A reference to writing or written includes emails.  A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted.  A reference to a statute or statutory provisions includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.  A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).  A reference to a “party” is either OrthoFlex or the Buyer, and parties includes both of us, and a “party” includes personal representatives, successors or permitted assigns.  All defined terms shall be deemed to refer to the masculine, feminine, neuter, singular and/or plural, in each instance as the context and/or particular facts may require.  Use of the terms “hereunder”, “herein”, “hereby”, and similar terms refer to these Terms. The headings in these Terms are for the convenience of the parties only and have no effect on the construction or interpretation of the Terms.

1. Relationship

Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent or employee of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party.    These Terms are personal to the Buyer (whether the Doctor or the Practice).

1. Implied Terms

All terms implied by law and which we may by law exclude, are excluded from these Terms.  Other than the Terms and terms which are implied by trade, custom, practice or course of dealing or by law, or by mandatory statutory law and which cannot by law be excluded by us, there are no other terms included in these Terms.

Any statements made by our employees or representatives or in any documents produced by us are not terms included in these Terms and Buyer agrees that Buyer has not relied upon any such statement, promises, representations, assurances or warranties when entering into the Terms and shall not have any remedy in respect of any statement, representation or warranty (whether negligently or innocently made) or any person other than as expressly set out in these Terms.

Nothing in this section shall however operate to limit or exclude any liability for fraud.  Products supplied under these Terms shall be as described in the Buyer’s Order, but any other brochures are not part of these Terms.

1. Binding Effect; Assignment; Third Parties

These Terms shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, subsidiaries, affiliates and permitted assigns of the parties. OrthoFlex may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms.  Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of Buyer’s rights or obligations under these Terms without the prior written consent of the Company.  A person who is not party to the Terms shall not have any rights under or in connection with these Terms.  OrthoFlex shall have rights against the doctor and the doctor’s Practice under any Terms.

1. No Waiver

If OrthoFlex fails, at any time while these Terms are in force, to insist that Buyer perform any of Buyer’s obligations under these Terms, or if the Company does not exercise any of its right or remedies under these terms, that will not mean that the Company has waived such rights or remedies and will not mean that Buyer does not have to comply with those obligations.  If OrthoFlex waives a default by Buyer, that waiver will not mean that the Company will automatically waive any subsequent default by Buyer.  No waiver by the Company of these Terms shall be effective unless OrthoFlex expressly says that it is a waiver and tells the Buyer so in writing.  All waivers shall be strictly construed.

1. Severability

If one of the parties gives notice to the other of the possibility that any provision or part of a provision of these Terms is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and to the greatest extent possible, achieves the intended commercial result of the original provision.  In the event that any provision hereof shall be found invalid, illegal or unenforceable, that provision shall be ineffective as to the extent of its violation without invalidating any other provision.

1. Survival

The provisions of these Terms that, by their sense and context, are intended to survive performance by either or both parties, including specifically but not limited to provisions on warranty, limitation of liability, indemnity and confidential information, shall also survive the completion, expiration, termination or cancellation of these Terms or any order by Buyer.

1. Force Majeure

OrthoFlex will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under these Terms that is cause by events outside our reasonable control (“Force Majeure Event”).  Any failure to pay sums due to the Company shall not be excused by reason of any Force Majeure Event.  The Company’s obligations under these Terms are suspended for the period that the Force Majeure Event continues, and OrthoFlex will extend the time to perform these obligations for the duration of that period but will make reasonable efforts to perform.

1. Amendments

Any variation of these Terms or any agreement with OrthoFlex can only be made in writing.  The Company has the right to revise and amend these Terms from time to time.  Changes will not affect orders placed by Buyer already accepted by the Company.  Failure by the Company to object to provisions contained in any purchase order (or equivalent document) shall not be construed as a waiver of these Terms or an acceptance of any other terms.

1. Language

These Terms are drafted in the English language.  If these Terms are translated into any other language, the English language version shall prevail.

1. Law; Jurisdiction; Service of Process

These Terms and the sale and delivery of all Products hereunder shall be deemed to have taken place in and shall be governed and construed in accordance with the laws of the province of Ontario, as applicable to contracts executed and wholly performed therein and without regard to its conflicts of law principles.  Any proceeding arising out of or related to these Terms or any order by Buyer to the Company shall be brought in the courts of the province of Ontario,  or if it has or can acquire jurisdiction, in the Court for the province of Ontario.  Each of the parties (including doctor’s Practice) irrevocably submits to the exclusive jurisdiction of each such court in any proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to these Terms or any order by Buyer in any other court.  The parties agree that any of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained-for agreement between the parties irrevocably to waive any objections to venue or to convenience of forum.  Process in any proceeding related to these Terms of any order of Buyer may be served on any party anywhere in the world.

1. Entire Agreement

These Terms and all other documents attached hereto represent the entire agreement between OrthoFlex and Buyer and constitutes the complete and exclusive expression of the Terms. All prior or contemporaneous oral and written negotiations with respect to the subject matter are herein merged.