PLANMECA PROMODEL STANDARD TERMS AND CONDITIONS OF SALE - SEPTEMBER 2008

The following terms and conditions form an integral part of each proposal submitted by Planmeca Oy (“Planmeca”) for sale of Planmeca ProModel products (“Products”) to a purchasing company or individual (“Purchaser”), and any contract (“Agreement”) concluded among Planmeca and Purchaser shall incorporate these terms and conditions, unless a distribution agreement has been concluded between Planmeca and Purchaser, in which case the terms of such an agreement shall prevail.

Terms of delivery

Planmeca’s obligation to deliver under this Agreement is subject to receipt and acceptance by Planmeca of Purchaser’s order and receipt of payment.

Common carrier

Delivery by Planmeca or, at Planmeca’s sole discretion, by any of its subsidiaries, to a common carrier appointed by Planmeca shall constitute delivery to Purchaser, and Purchaser appoints the common carrier its agent to receive possession. Purchaser shall be taken to have authorised the common carrier as its import broker, and provide the common carrier any applicable limited power of attorney enabling the common carrier to clear inbound consignments of Products as necessary. The common carrier is currently United Parcel Service Finland Oy, United Parcel Service, Inc., UPS International Inc. and their transportation-related affiliates. 

Time of delivery

Planmeca will make reasonable efforts to deliver as scheduled, but dates of delivery are approximate only and are based on normal production schedules.

Shipment is subject to any delay caused by Purchaser in supplying Planmeca with necessary and complete data, specifications and shipping instructions or any changes thereto made at Purchaser’s request; a change made at the request of Purchaser causes the shipment date to be extended a reasonable time and Purchaser shall compensate Planmeca for any extra costs and expenses incurred thereby.

Personal data

Purchaser shall provide Planmeca and/or the common carrier such personal information as necessary including but not limited to Purchaser’s name and email address. The Purchaser hereby gives Planmeca and/or the common carrier the right and authority to control and use such personal information for the purposes of this Agreement including but not limited to any notifications to the Purchaser, collecting and processing the payment made by the Purchaser, and to provide such personal information to certain recipients including but not limited to any service providers in the context of this Agreement and, if required by law, government agencies and authorities. The Purchaser hereby consents to the transfer of this information to the United States or other countries not having the same level of data protection as the Purchaser’s country for the purposes of this Agreements. United Parcel Service Finland Oy, Niittytie 23, FI-01300 Vantaa, Finland, currently the main controller of this personal information, will process the information for the purposes of this Agreement, and may provide the information to recipients referred to above.

Terms of payment

Unless it has been otherwise agreed, the terms of payment are as follows:

(a)      The price of each Product shall be the price in effect at the time of the acceptance by Planmeca of Purchaser’s order;

(b)      All prices are and deliveries are made on “FCA Helsinki (Incoterms 2000) at Planmeca’s factory” terms, excluding package, unless otherwise indicated in the export price list;

(c)      Payment for all Products is due and payable prior to receipt of the Products and upon the receipt of notification regarding the despatch of the Products in accordance with given payment instructions.

(d)      Financing fee for past due payments is 1.5% for each commencing 30 days period delay in payment;

(e)      If Purchaser fails to make any payment when due, Planmeca shall have the right at its sole discretion to change credit terms in respect of any Agreement or Product in transit or of any further shipment and to defer shipment of further Products until all outstanding amounts are paid in full or Planmeca has received a security deemed satisfactory by Planmeca. Unless Planmeca receives such outstanding amounts or satisfactory security within ten (10) days after demand, Planmeca may treat such failure as a repudiation of Agreement by Purchaser.

Limited liability

Planmeca ProModel is an approximate physical model of patient’s promax 3d imaged volume. Purchaser bears the entire risk of and liability for, inter alia, the purchase, import, use and any disposition of ProModel products. Planmeca disclaims any and all liability what so ever for Promodel products including but not limited to merchantability, fitness for particular purpose or otherwise.

PLANMECA’S LIABILITY IN RESPECT OF PROMODEL PRODUCTS INCLUDING BUT NOT LIMITED TO ANY MATERIALS USED IN THE PRODUCTS IS EXCLUDED AND PLANMECA DISCLAIMS AND THE PURCHASER HEREBY WAIVES AS TO PLANMECA ANY AND ALL LIABILITIES, WARRANTIES, GUARANTEES, CONDITIONS AND REPRESENTATIONS, WHETHER OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR OTHERWISE, EXPRESS, IMPLIED, ORAL OR WRITTEN ARISING BY LAW OR OTHERWISE. IN NO EVENT SHALL PLANMECA BE LIABLE FOR ANY SPECIAL, GENERAL, EXEMPLARY, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR DELAY, LOSS OF USE OR LOSS OF PROFITS BY REASON OF PLANMECA’S NEGLIGENCE OR OTHERWISE, INTER ALIA, IN CONNECTION WITH THE SALE, IMPORT, DELIVERY, USE, OPERATION OR REPAIR OF THE PRODUCTS, OR IN ANY WAY ARISING OUT OF OR RELATED TO THE PURCHASE, IMPORT, SALE, DELIVERY, USE, OPERATION OR REPAIR OF OR INABILITY TO USE THE PRODUCTS.

Purchaser’s sole and exclusive remedy under this Agreement shall be limited to replacement of defective  Product, in accordance with the delivery terms indicated in the export price list, provided that a written claim of the defect is sent to Planmeca and the original Product is returned to Planmeca’s factory within ten (10) days of receipt of the Product by Purchaser, transportation prepaid, and Planmeca’s inspection establishes the existence of such a defect. At Planmeca’s sole discretion, Planmeca shall also be entitled to cancel the Agreement.

Planmeca shall in no event be liable for damage or delay caused by deficient workmanship, storage, handling, installation, use, repair or maintenance by Purchaser or by someone other than Planmeca, and Purchaser shall receive no allowances for repairs or alterations or the cost of labour in connection therewith.

Planmeca shall have no liability whatsoever to Purchaser or any other person for or on account of any injury, loss or damage of any kind or nature, sustained by, or any damages assessed or asserted against, or any other liability incurred by or imposed upon the handling, use, operation, maintenance or repairs of Products by anyone other than Planmeca. Purchaser shall indemnify and hold Planmeca harmless from and against any such liability, and any and all claims, actions, proceedings, damages, awards, penalties, losses, expenses (including but not limited to attorneys’ fees), and/or injuries incurred by any third party.

In any event Planmeca’s maximum liability is always limited to the purchase price paid for the Products.

Title retention

In case of default by Purchaser Planmeca shall have the right, at its sole discretion to (a) reclaim possession of Products with the assistance of a court or without such assistance, where legally available; (b) consider the sale cancelled without having to give notice; or (c) commence proceedings for the cancellation of Agreement and repossession of Product.

Any instalment paid by Purchaser may be retained by Planmeca by way of damages and/ or interest.

Safety standards

Planmeca endeavours to comply with the purposes and applicable standards of safety of the country of manufacture of Products. However, compliance with the requirements of laws of Purchaser’s country of domicile, the country to which the Products are purchased, sold, imported, delivered, installed or in which they are repaired, used or operated is the responsibility of Purchaser.

The prices of Products do not include any special charges for such compliance, and Planmeca makes no representation or warranty hereunder with respect thereto and shall in no event be liable for any general, special, exemplary, direct, indirect, incidental or consequential damages or fines assessed against Purchaser, arising out of or resulting from importation, purchase, sale, delivery, installation, use or operation of Products.

Approvals

Unless expressly undertaken by Planmeca Purchaser shall be liable to obtain all necessary government or other regulatory bodies’ registrations, approvals, certifications and related permissions required for the importation, purchase, sale, delivery, use or operation of Products outside Finland.

Taxes

Purchaser shall pay and indemnify and hold Planmeca harmless of any and all claims, duties, sales, use, excise and/or other taxes, assessments and charges assessed and/or levied against Products outside Finland.

Immaterial rights

Planmeca’s patents, trade marks, trade names, designs, copyrights and other such proprietary rights and technical data, know-how and information (the “Immaterial Rights”) are specifically recognized by Purchaser as Planmeca’s exclusive property, and Purchaser shall have no right to or license in, copy, translate, modify, transfer, merge any of such Planmeca’s property except where specifically and expressly assigned or granted by Planmeca to Purchaser in writing. Purchaser shall not disclose any such confidential proprietary information, data, know-how etc to any third party without prior written consent of Planmeca.

In any event, Purchaser shall discontinue the use of any such trade mark, trade name, design or other Immaterial Right immediately upon notice in writing by Planmeca.

Purchaser shall not remove, obliterate, deface, change or replace any trade mark or trade name used on or in connection with Products.

Force majeure

Planmeca’s obligations under any accepted orders in accordance herewith or under applicable laws are subject to force majeure and delays resulting from fires, casualties or accidents, acts of God, transportation or manufacturing difficulties, inability to obtain equipment, materials or qualified labour, governmental regulations and other causes beyond Planmeca’s reasonable control. In the event of force majeure or other such reason as referred to herein above the agreed deliveries will be made by Planmeca as soon after such reason has ceased to affect Planmeca’s performance as may be deemed reasonable. Planmeca may, however, at its sole discretion cancel any orders affected by force majeure or other such events without incurring any liability by giving reasonable notice to Purchaser. In events such as referred to above Planmeca shall to the extent possible attempt to allocate agreed deliveries in a fair manner among its customers and distributors. Planmeca accepts no indemnification.

Amendments, waivers

No modification of this Agreement nor any waiver or renunciation of any claim or right accruing to Planmeca hereunder shall be binding upon Planmeca unless made in writing and signed by a duly authorized representative of Planmeca. No waiver of any performance required under this Agreement shall be deemed a waiver of future compliance with any of the terms hereof.

Governing documents, law and jurisdiction

If any of the provisions of these Planmeca Oy Standard Terms and Conditions of Sale (including exhibits and statements made in the proposal) conflict with any provisions in the Purchaser’s documents, these Planmeca Oy Standard Terms and Conditions of Sale shall govern unless Planmeca expressly agrees to the contrary in writing.

It is intended that this Agreement shall not violate any applicable mandatory laws and the invalidity of any provision hereof shall not affect the force and effect of the remaining provisions and such invalid provisions shall be deemed severed here from and shall be replaced by provisions with contents as close to the original wording as is possible without violating any applicable mandatory laws.

This Agreement, its validity and formation, all aspects of transacting business hereunder and any legal relations between Planmeca and Purchaser shall in all respects be governed by, construed and interpreted under and in accordance with the laws of Finland.

Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof shall be finally settled by one (1) arbitrator in arbitration in accordance with the Rules of the Arbitration Institute of the Central Chamber of Commerce of Finland. The arbitration shall be held in Helsinki. The proceedings shall be conducted in the English language.  Notwithstanding anything provided herein Planmeca may at its sole discretion have recourse to any courts of law in any jurisdiction to enforce any rights or remedies it may have under any Agreement or relating thereto.