Straumann CareStack Terms and Conditions
This SaaS Customer Agreement (the “Agreement”) contains the terms and conditions that apply to the use of the services specified in the attached Order Form (collectively, the “Service,” or “Services”) offered by Straumann USA, LLC (“Straumann”) to Customer identified on the Order Form. BY SUBMITTING THE ORDER FORM TO STRAUMANN OR OTHERWISE ACCESSING OR USING THE SERVICES, CUSTOMER AGREES TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN TO THE EXCLUSION OF ALL OTHER TERMS. BY ACCESSING OR OTHERWISE USING THE SERVICES, CUSTOMER HEREBY REPRESENTS AND WARRANTS THAT CUSTOMER IS DULY AUTHORIZED TO ENTER INTO AND BIND THE ENTITY IT REPRESENTS TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ACKNOWLEDGE AND AGREE THAT ALL SUCH USE BY CUSTOMER IS SUBJECT TO SUCH TERMS AND CONDITIONS. IF CUSTOMER DOES NOT AGREE TO THESE TERMS OR ARE NOT AUTHORIZED TO BIND THE ENTITY IT REPRESENTS, CUSTOMER IS NOT LICENSED OR PERMITTED TO USE THE SERVICES. ALL OTHER USES OF THE SERVICES ARE PROHIBITED.
1. Service; Distributor Only
1.1 Subject to all of the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Straumann grants Customer the right to access and use the services specified in each Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of such Customer, only as provided herein and only pursuant to the applicable user documentation.
1.2 Straumann is acting only as a distributor of the Services, which are manufactured or supplied by Good Methods Global, Inc. (“CareStack”). Customer’s use of the Services is also subject to the applicable terms set out in CareStack’s “SAAS Customer Agreement” available at https://carestack.com/legal/2021-1/termsandconditions, specifically sections 1.2, 3, 4, 6, 7, 8.3, 8.4, 9, 10, and 11 of those terms and conditions, which are incorporated herein by reference. By using the Services, Customer signifies its acceptance of those terms. If Customer does not agree to those terms, do not use the Services.
2. Warranty Disclaimer
If applicable and permitted by CareStack, Straumann will pass through to Customer any warranties provided to Straumann by CareStack for the Services. This limited obligation to pass through warranties provided by CareStack to Customer is Customer’s sole remedy and Straumann’s sole obligation in connection with representations, warranties and conditions related to the Services. STRAUMANN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OPERATION OR NONINFRINGEMENT, AND THE SERVICES ARE SOLD “AS IS.” Customer acknowledges that no employee of Straumann is authorized to make any representation or warranty on behalf of Straumann that is not in this Agreement.
To the extent that CareStack provides indemnities to Straumann, including but not limited to, indemnification against liability for infringement of a third party’s proprietary rights, and to the extent that CareStack permits the transfer of such indemnities to Customer, Straumann will pass such indemnities through to Customer. Straumann does not directly provide any indemnities in connection with the Services. Further, Customer expressly waives any claim that it may have or allege to have against Straumann based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property right with respect to any Service and also waives any right to indemnification from Straumann against any such claim made against Customer by a third party.
Customer shall defend, indemnify, and hold harmless Straumann, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that any data, information or other material provided, uploaded, or submitted by or on behalf of Customer to the Service in the course of using the Service, or Customer’s use of the Service, infringes, violates, or misappropriates any third party intellectual property, proprietary, or privacy right.
4. Limitation of Liability
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO STRAUMANN HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
5. Payment Terms
Payment terms are credit card at time of sale. Customer authorizes Straumann to charge Buyer’s credit card for the purchase of the Services in the amount set forth on the Order Form. All prices are exclusive of all excise, sales, use, transfer and other taxes and duties imposed with respect to the Services or their sale by any Federal, state, municipal or other governmental authority, all of which taxes must be paid by Customer. To the extent permitted by applicable law, overdue payments will be subject to finance charges computed at a periodic rate of 1.5% per month (18% per year). If Customer chooses to finance the payment of the Services, Straumann shall have no obligation to sell or deliver the Services to Customer unless and until such financing shall have been approved by the third party agreeing to finance the Customer’s purchase of the Services. Customer shall notify Straumann in writing of any dispute with any invoice within thirty (30) days from Customer’s receipt of such invoice. Customer will be deemed to have accepted all invoices for which Straumann does not receive timely notification of disputes and shall pay all undisputed amounts due under such invoices.
6. Term; Termination
6.1 This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and following the Initial Order Form Term, shall automatically renew for additional successive periods of one year each (each, a “Renewal Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable.
6.2 In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. In addition, either party may terminate this Agreement at any time, with or without cause, upon 30 days’ notice.
6.3 Upon expiration or termination of this Agreement, all provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
This Agreement represents the entire agreement between Customer and Straumann with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Straumann with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the Commonwealth of Massachusetts. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Customer may not assign any of its rights or obligations hereunder without Straumann’s consent, except that Customer may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, which is not a competitor of Straumann. Straumann may utilize subcontractors in the performance of its obligations hereunder and may freely transfer and assign any of its rights and obligations under this Agreement. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.
May 2, 2022
Straumann North American Headquarters
Straumann USA, LLC
60 Minuteman Road Andover, MA 01810
Phone 800/448 8168 (US)
Fax 978/747 2490