Precision Align Co.

General Terms & Conditions

These terms and conditions (“Terms and Conditions”) constitute a binding agreement between
You (as defined herein) and Precision Align, LLC, or one of its subsidiaries, as applicable
(“we”/“us”/“Precision Align”). You and Precision Align are each referred to herein as a “Party”
and collectively as the “Parties”.

 

1. INTRODUCTION

These Terms and Conditions apply to contracts between Precision Align and any customer (“You”
or “our Customer” or “Customer”) for purchases of product(s) (“Product(s)” or “Orthodontic
Devices”) and/or related services (“Services”), except where we have expressly otherwise agreed
in writing. These Terms and Conditions govern the relationship between Precision Align and You
from the time that You first access our systems, use any software or otherwise engage with our
personnel, whether to place an order for Products (“Customer Orders”), or to provide patient
information for the purpose of placing such orders, or to obtain access to Precision Align branding
or marketing materials. By accessing the system and any material of Precision Align or by placing
an order with us, You agree to be bound by these Terms and Conditions.


2. CANCELLATIONS AND REFUNDS

All sales are final. If an order is cancelled for any reason, it will be at Precision Align’s discretion
whether to credit or refund any portion of the fees paid for that order based upon the services and
materials commitment through the date of cancelation.


3. REPRESENTATIONS

You represent and warrant to us that:

(i) You are licensed to practice dentistry and/or orthodontics in the location(s) where, and at all
times during which, treatment is being provided, and you conduct your practice in accordance with
all dental laws, regulations and standards of care in effect and applicable to your practice
location(s);

(ii) You have all necessary training and expertise to treat patients using our products and
Othodontic Devices;

(iii) Your use of our products or Othodontic Devices will be in accordance with all applicable
medical and dental standards and in compliance with our Instructions for Use; and

(iv) You have properly explained the products and Othodontic Devices to your patients before
starting treatment.

(v) You have obtained the appropriate patient consent before starting treatment, including
disclosure that You may share their medical records with third parties in order to facilitate
treatment at your direction.


4. LIMITATION OF LIABILITY

IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS
OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR
FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR
PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH
DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE
OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU EXPRESSLY UNDERSTAND
AND AGREE THAT PRECISION ALIGN SHALL NOT BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING
BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUES, GOODWILL,
USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF PRECISION ALIGN HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE
OR THE INABILITY TO USE THE GOODS OR SERVICES OF PRECISION ALIGN; (ii) THE
COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM
ANY GOODS, DATA, INFORMATION, OR SERVICE PURCHASED OR OBTAINED OR
TRANSACTIONS ENTERED INTO THROUGH OR FROM PRECISION ALIGN (iii)
UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
(iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ASSOCIATED WITH
PRECISION ALIGN, ITS SERVICES OR ITS GOODS; OR (v) ANY OTHER MATTER
RELATING TO THE PROFESSIONAL SERVICES OR PRECISION ALIGN, OR ITS
SERVICES OR GOODS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU ALSO
AGREE THAT PRECISION ALIGN WILL NOT BE LIABLE FOR ANY INTERRUPTION OF
BUSINESS, ACCESS DELAYS, OR ACCESS INTERRUPTIONS TO THE PRECISION
ALIGN SERVICES OR THE WEB SITE(S) YOU ACCESS THROUGH THE PRECISION
ALIGH PLATFORM, DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION,
DESTRUCTION OR OTHER MODIFICATION, AND ANY EVENTS BEYOND PRECISION
ALIGN’S REASONABLE CONTROL.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU EXPRESSLY UNDERSTAND
AND AGREE THAT PRECISION ALIGN’S MAXIMUM AGGREGATE LIABILITY 

(WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, OR UNDER ANY
OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR
CAUSED, SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID TO PRECISION
ALIGN BY YOU.

 

5. INDEMNIFICATION

You agree to indemnify, defend and hold harmless Precision Align 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, attorneys’
fees and expenses of any kind and nature whatsoever arising under any theory of legal liability (a
”Claim”) that may be asserted against us arising out of, or resulting from, or relating to:

(i) use of products sold by Precision Align;

(ii) any breach of or failure of you to abide by any agreement with Precision Align;

(iii) any breach or alleged breach of any representations or warranties made by you or any incorrect
information provided by you or your patient; or

(iv) our provision of or failure to provide products or Orthodontic Devices to you, unless the
provision of or failure to provide such products or Orthodontic Devices was due to our willful
misconduct or gross negligence.

Your obligation to defend us against any Claim is separate and distinct from the obligation of
indemnity set forth in this above. You have the right and obligation to assume the defense of any
Claim with counsel chosen by you and reasonably acceptable to Precision Align provided that
counsel separately chosen by Precision Align may participate in the defense of the Claim with
counsel chosen by you, at our expense. You will not have the right to assume the defense of a
Claim made against both Precision Align and you if counsel for Precision Align advises in writing
that a conflict in interest between Precision Align and you would under applicable ethical
principles preclude a single counsel or firm from defending both Parties. 

 

6. WARRANTIES AND DISCLAIMER

Precision Align manufactures Orthodontic Devices and does not provide medical or dental advice.
You agree that you shall be solely responsible for all medical and dental care associated with the
Orthodontic Devices and their use with patients. From time to time, Precision Align may provide
feedback regarding its services, products, and processes, including Orthodontic Devices, in
connection with order fulfillment and customer satisfaction; however, the sole responsibility for
any medical or dental advice shall be on the associated professional and nothing that Precision
Align communicates, states, or suggests can be relied upon as medical or dental advice.

Precision Align warrants that our products:

(i) shall conform to the specifications represented in the treatment setup that you approve; and

(ii) are free from defects in material and workmanship.

PRECISION ALIGN DOES NOT GUARANTEE ANY TREATMENT OUTCOME,
INCLUDING A SUCCESSFUL TREATMENT OUTCOME. EXCEPT AS EXPRESSLY
PROVIDED IN THIS SECTION, PRECISION ALIGN MAKES NO WARRANTY
WHATSOEVER WITH RESPECT TO THE ORTHODONTIC DEVICES, INCLUDING ANY
(a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY;
WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF
PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

Products manufactured by a third party (“Third Party Product”) may constitute, contain, be
contained in, incorporated into, attached to or packaged together with, the Goods. Third Party
Products are not covered by any warranty herein. For the avoidance of doubt, SELLER MAKES
NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY
PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b)
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE;
OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY
RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF
DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PRECISION ALIGN MAKES
NO WARRANTY OF ANY KIND AS TO ANY SERVICES OR DESIGNS OR THE
ORTHODONTIC DEVICES RESULTING THEREFROM, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

Precision Align shall not be liable for a breach of the warranties set forth herein unless: (i) you
give written notice of the defective Orthodontic Devices, as the case may be, reasonably described,
to Precision Align within ten (10) days of the time when you discovers or ought to have discovered
the defect; (ii) if applicable, Precision Align is given a reasonable opportunity after receiving the
notice of breach of the warranty set forth herein to examine such Orthodontic Devices and you (if
requested to do so by Precision Align) returns such Orthodontic Devices to Precision Align’s place
of business at Precision Align’s cost for the examination to take place there; and (iii) Precision
Align reasonably verifies your claim that the Orthodontic Devices are defective.

The Seller shall not be liable for a breach of the warranty set forth herein if: (i) you make any
further use of such Orthodontic Devices after giving such notice; (ii) the defect arises because you
failed to follow Precision Align’s oral or written instructions as to the storage, installation,
commissioning, use or maintenance of the Orthodontic Devices; or (iii) you alter or repair such
Orthodontic Devices without the prior written consent of Precision Align.

With respect to any such Orthodontic Devices to which an applicable warranty applies hereunder,
Precision Align shall, in its sole discretion, either: (i) repair or replace such Orthodontic Devices
(or the defective part) or (ii) credit or refund the price of such Orthodontic Devices at the pro rata
contract rate provided that, if Precision Align so requests, you shall, at Precision Align’s expense,
return such Orthodontic Devices to Precision Align.

You are completely and solely responsible for all content and information provided to Precision
Align, as well as for all finished designs, images or other information provided which Precision
Align will provide to you and/or any suppliers, manufacturers or clinicians of the Orthodontic
Devices. For the avoidance of any doubt, (a) if you are a prescribing clinician, you are solely
responsible for viewing and approving the resulting designs and Orthodontic Devices and (b) if
you are not the prescribing clinician, you are solely responsible for ensuring that the resulting
designs and Orthodontic Devices meet any and all requirements of the clinician associated with
the delivery and use of the Orthodontic Devices. Precision Align makes no warranties or
representations to you, or to any of your users or any third party(ies) regarding the accuracy of any
information provided to Precision Align and the resulting designs and Orthodontic Devices
produced by Precision Align, nor does Precision Align make any warranties or representation as
to the Orthodontic Devices produced therefrom.

THE REMEDIES SET FORTH IN THIS SECTION SHALL BE YOUR SOLE AND
EXCLUSIVE REMEDY AND PRECISION ALIGN’S ENTIRE LIABILITY FOR ANY
BREACH OF THE LIMITED WARRANTIES SET FORTH HEREIN.

Under no circumstances and notwithstanding anything herein to the contrary, Precision Align shall
not be liable for:

(i) any defects that are caused by neglect or misuse of the Orthodontic Devices by you, the patient,
or any third party;

(ii) any defects that are caused by a third party, including (but not limited to) a patient’s improper
use of any Orthodontic Devices;

(iii) any Orthodontic Devices that have been altered or modified in any way by a third party;

(iv) any Orthodontic Devices being used in combination with other third-party products;

(v) any defects or problems that result from errors in or due to information that you submitted to
Precision Align; or

(vi) any unwanted outcomes, complications, or extra expenses incurred by the patient or the
treating doctor arising from using Precision Align’s product.

 

7. INSURANCE

You shall, at your own expense, maintain and carry insurance in full force and effect which
includes, but is not limited to, commercial general liability (including product liability) in a sum
no less than $5,000,000 USD with financially sound and reputable insurers. Upon Precision
Align’s request, you shall provide Precision Align with a certificate of insurance from your insurer
evidencing the insurance coverage specified in these Terms and Conditions. You shall provide
Precision Align with thirty (30) days’ advance written notice in the event of a cancellation or
material change in your insurance policy. Except where prohibited by law, you shall require its
insurer to waive all rights of subrogation against Precision Align’s insurers and Precision Align.

 

8. WAIVER

No waiver by Prevision Align of any of the provisions of these Terms and Conditions is effective
unless explicitly set forth in writing and signed by Precision Align. No failure to exercise, or delay
in exercising, any right, remedy, power or privilege arising from these Terms and Conditions
operates, or may be construed, as a waiver thereof. No single or partial exercise of any right,
remedy, power or privilege hereunder precludes any other or further exercise thereof or the
exercise of any other right, remedy, power, or privilege.

 

9. GOVERNING LAW AND DISPUTES

These Terms and Conditions and performance hereunder shall be governed by, and construed in
accordance with, the laws of the state of Florida (without giving effect to its conflict of laws
principles). Any claim or cause of action shall brought in connection with the Orthodontic Devices
or for goods or services to which these Terms and Conditions apply shall be solely brought in the
state and/or federal courts in the State of Florida, County of Broward and you irrevocably waive
any objection to such venue.

 

10. OWNERSHIP OF INFORMATION

Precision Align’s content, information and methodologies are proprietary to Precision Align or its
licensors, suppliers, publishers, rights holders, or other content providers (collectively, and
individually, “Precision Align Providers”). You agree not to modify, copy, distribute, transmit,
share, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell
or re-sell any of such content, information or methodologies obtained from or through Precision
Align.

 

11. RELATIONSHIP OF PARTIES

The Parties are and at all times shall be an independent party and not the agent or employee of
Precision Align. Neither these Terms and Conditions nor any contract with Precision Align 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 you
and Precision Align.

 

12. ASSIGNMENT

These Terms and Conditions shall not be assigned by either Party hereto without the prior written
consent of the other Party.

 

13. SUCCESSOR AND ASSIGNS

These Terms and Conditions 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.

 

14. ENTIRE AGREEMENT AND AMENDMENT

These Terms and Conditions and any documents or material incorporating these Terms and
Conditions 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, unless otherwise specified in writing by an authorized
representative of Precision Align. These Terms and Conditions can only be modified by an
authorized representative of Precision Align.

 

15. SEVERABILITY

If any provision of these Terms and Conditions is or shall be deemed a violation of any applicable
law, rule or regulation, such legal invalidity shall not void or affect the remaining Terms and
Conditions and provision of these Terms and Conditions.

 

16. WAIVER

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 these Terms and
Conditions, 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.