Customer Agreement
Customer Agreement
THIS CUSTOMER AGREEMENT ("Agreement") is entered into by and between Drake Precision Dental Laboratory, Inc., a corporation organized and existing under the laws of the State of North Carolina ("Company"), and the prescribing dentist, whether by written prescription or electronic prescription ("Customer"). This Agreement covers all prescriptions, written or electronic, received by the Company.
WHEREAS,
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- The Company values its customers and desires to avoid any and all misunderstandings between it and its customers regarding the terms and obligations of orders placed by its customers;
- The understandings set forth herein will help eliminate any potential future misunderstandings as set forth above;
NOW, THEREFORE, the Company and the Customer, do hereby agree as follows:
1. Payment
Full payment, as set forth on Company's current price sheet (which is subject to change from time to time without prior notice), for all products, work, services, or shipments requested by Customer pursuant to each order placed by Customer shall be due within thirty (30) calendar days after the date of the statement therefor, regardless of when actually received by Customer. All balances remaining past such date shall be considered PAST DUE. Any promotional discounts will be void if the invoice has not been paid. Company may bring a single action for collection of any number of Customer's PAST DUE balances, whether or not such balances were incurred pursuant to this order/request or any other order/request (even if such other order/request was not otherwise made in writing by the Customer as specified hereinbelow). The Customer also authorizes the Company to obtain and report credit information on the Customer.
2. Delivery
While the Company shall use its best reasonable commercial efforts to prepare all products, work, services, or shipments requested by the Customer in a timely fashion, the Company cannot and does not represent or warrant that the same may be prepared or delivered by any particular date. The Customer may not claim any offset or reduction in price for any alleged late delivery.
3. Late Charges
ALL PAST DUE balances shall incur, and bear and Customer agrees to pay a late charge equal to two percent (2%) of any PAST DUE balance per month or portion thereof from and after the invoice date until the unpaid PAST DUE balance is paid in full, or as otherwise provided by the laws of your state. No late charges shall accrue during the first thirty (30) days from the date of the invoice (net 30 days). The late charge shall not be deemed to constitute the payment of interest or a finance charge. Notwithstanding the foregoing, the above charge shall not exceed an ANNUAL PERCENTAGE RATE (APR) of the lesser of twenty-four percent (24%) or the highest rate allowed by applicable law.
4. Application of Payments
All payments made by (or credits or discounts granted to) the Customer while a PAST DUE balance exists shall be applied first to late charges and second to PAST DUE balances before being applied to current balances, unless otherwise elected by the Company.
5. Credits and Discounts
The Company reserves the right to grant, at its sole discretion and on a case-by-case basis, credits, or discounts for pre-paid accounts, or otherwise. Notwithstanding the foregoing, no such credits or discounts shall be allowed while a PAST DUE balance or default by the Customer under this Agreement exists, unless otherwise agreed to in writing by the Company and the Customer.
6. Late Charges
All agreements between the Customer and the Company are expressly limited so that in no contingency or event whatsoever shall the amount of any late charge exceed the highest lawful rate allowed under applicable usury laws. If, for any circumstances whatsoever, any late charge hereunder shall involve transcending the limit of validity prescribed by law which a court of competent jurisdiction may deem applicable thereto, then ipso facto, the late charge shall be reduced to the limit of such validity, and if from any circumstances the Company shall ever receive an amount which might be otherwise deemed to be interest in excess of such limits, the same shall be applied to the reduction of the unpaid principal balance due hereunder and not to the payment of interest. This provision shall control every other provision of all agreements between the Customer and the Company.
7. Shipping and Transport
The Company shall, unless specified otherwise in writing by the Customer, determine the method of shipping or transport. Customer shall be responsible for all shipping and transport costs, including but not limited to the payment and maintenance of any shipping or transport insurance. Customer shall bear all risk of loss or damage during shipping or transport.
8. Orders and Specifications
All orders/requests for products, work, services, or shipments requested by the Customer shall be made in writing pursuant to the forms made available by the Company for such purposes. The Company reserves the right to disregard any other orders/requests. The Customer shall supply the Company in writing with all specifications and information reasonably required by the Company to prepare the prosthesis(es) requested by the Customer. While the Company reserves the right to request, from time to time, further specifications, or information, it expressly disclaims any duty to do so and may rely entirely upon the original specifications and information provided by the Customer without any duty of investigation. The Customer shall be solely responsible for the accuracy of any such specifications or information.
Further, the Customer shall be responsible for inspecting the products, work, services, or shipments requested by the Customer, including without limitation all prosthesis, for proper application, fit, alignment, and ultimate use. The Customer shall indemnify, defend, and hold the Company, and its principals, shareholders, directors, officers, employees, representatives, agents, successors, and assigns, harmless from any and all claims, liabilities, and damages, known and unknown, arising by reason of treatment of any patient of the Customer or the actual application, fit, alignment, or ultimate use of any prosthesis prepared by Company hereunder.
9. Discrepancies, Shortages, Claims, and Incorrect Shipments
Any and all discrepancies, shortages, claims, or incorrect shipments must be reported immediately to the Company by the Customer, and in no event later than ten (10) calendar days from the date of receipt. All notification shall be made in writing and delivered to Company; provided, however, that Customer may notify Company orally, by telephone or otherwise, so long as it also contemporaneously prepares and delivers to Company a written record of such notification, and such oral notification shall be deemed effective as of the date made. Unless notification is made and delivered as set forth above, Customer shall be deemed to have inspected and accepted all products, work, services, or shipments of or by Company. The Company shall reasonably cure any discrepancies, shortages, claims, or incorrect shipments for which it may be responsible only if notified as set forth above. Discrepancies, shortages, claims, or incorrect shipments shall be handled as follows:
9.1 Errors, omissions, or mistakes made by the Company will be corrected at the Company's expense. The Customer must request a return authorization from the Company, which the Company will provide reasonably. The Company will not remake or otherwise remedy any prosthesis unless and until proper return authorization has been requested and provided. Upon obtaining a return authorization, the Customer must promptly return any prosthesis in question, clearly and conspicuously identifying the same pursuant to the return authorization, or as otherwise directed by the Company. The Customer's sole and exclusive remedy and the Company's sole liability for any error, omission, mistake, or breach of any limited warranty expressly provided herein or any other claim arising out of or related to the prosthesis shall be for the Company, at its option, to either remake or repair any prosthesis in question or give credit to the Customer, in the invoice amount, for the prosthesis in question returned to the Company as set forth above.
9.2 Errors, omissions, or mistakes made by the Customer may be corrected by the Company, at the expense of the Customer or at the Company's discretion, depending upon the nature of the case. However, it is the policy of the Company not to profit from the mistake of the Customer.
10. Company Disclaimer of Warranties and Liability for Performance
The Company and the Customer acknowledge that the Company has prepared the subject prosthesis to the specifications of the Customer and that the Customer is solely responsible for such specifications. The Company makes no other warranties and all other warranties, express or implied, are hereby excluded. In no event shall the Company's obligation or liability for breach of warranty or any claim related to the prosthesis exceed the price of the prosthesis. The Customer further acknowledges that the Company is not licensed to practice dentistry and does not know the particular circumstances and application under which the prosthesis is to be utilized. Therefore, the Company does not and cannot warrant that the prosthesis are fit for any particular purpose or that the same is in any way merchantable. The Company expressly disclaims and excludes any such warranties of merchantability and fitness for a particular purpose.
11. Company Liability for Performance
The Customer further acknowledges that the Company does not and cannot warrant the performance or results that may be obtained by using the prosthesis. The Customer acknowledges that in no event will the Company be liable to any party, including but not limited to patients of the Customer, for any damages resulting from any use of the prosthesis or otherwise, including but not limited to incidental, consequential, special, exemplary, or punitive damages, whether claimed by the Customer, any patient of the Customer, or any other party. In addition, the Customer understands that no patient of the Customer, or any other person not a party to this agreement, will be considered a third-party beneficiary to this agreement and that no such person will be able to enforce against the Company any representations or warranties, if any, made herein or by the Customer to such patient.
12. Entire Agreement
This Agreement shall be read in conjunction with the provisions set forth on the reverse hereof, which provisions (including name, description of products, work, services, or shipments, etc.) shall be incorporated herein, and all of which shall constitute the entire agreement between the parties hereto pertaining to the subject matter contained herein and therein and shall supersede all prior and contemporaneous agreements, representations, and understandings of the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
13. Severability
Should any provision or portion of this Agreement be held or otherwise become unenforceable or invalid for any reason, the remaining provisions and portion of this Agreement shall be unaffected by such unenforceability of invalidity.
14. No Third-Party Beneficiaries
Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the parties to it and their respective successors and assigns, except expressly as set forth herein, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, except as set forth herein, nor shall any provision give any third person any right or subrogation or action over against any party to this Agreement.
15. Binding Effect
This Agreement shall be binding on and shall inure to the benefit of the parties to it and their respective heirs, legal representatives, successors, and assigns.
16. Attorneys' Fees
If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover as an element of their damages reasonable attorney's fees and other costs incurred in that action or proceeding, in addition to any other relief to which said prevailing party may be entitled.
17. Governing Law
This Agreement shall be construed in accordance with, and governed by, the laws of the State of North Carolina.
18. Venue
This Agreement is deemed to have been entered into, and primary performance will be deemed to be in Mecklenburg County, North Carolina.