General Terms and Conditions for Sale
These General Terms and Conditions of Sale (these “Terms”) contain important information regarding your rights and obligations, as well as conditions, limitations, and exclusions that apply to your purchase of the products on our Website. Please read carefully.
By placing an order for products from www.kometusa.com (the “Website”), you accept and are bound by these Terms. You affirm that if you place an order on behalf of an organization or company, you have the legal authority to bind any such organization or company to these Terms.
You may not order or obtain any products from the Website if you (i) do not agree to these Terms, (ii) are not eighteen (18) or of legal age to form a binding contract, or (iii) are prohibited from accessing or using the Website or using any of the products by applicable law.
1. Applicable Conditions and Scope of Application
1.2 We expressly reject any different or additional terms or conditions contained in any documents or electronic com- munications submitted by you. Our provision of credit, acceptance of any purchase order, sale of any goods and your use of this website are expressly made conditional on your assent to these terms and conditions.
2. Advice, Information and Documentation
2.1 Any advice and information given on our products is based on our experience to date. The data, in particular con- cerning the possibilities of use of our products, are average data only and do not represent an express or implied warranty of any kind. Information on our website may be incomplete, out of date and differ significantly from the written material delivered with any product. The written material delivered with a product shall be controlling.
2.2 Any document and object, such as drawings, samples or models, made available to you in connection with our of- fers, remain our property. We are the holder of intellectual property rights, including without limitation copyrights and related protective rights under domestic and international copyright laws, regarding these documents and objects. Other than the documents we generally make available to the public, you are not entitled to disclose to third parties the documents made available without our prior written consent.
3. Acceptance of Orders and Terms of Contract
3.1 Unless we expressly provide otherwise in an offer, our offers are not binding. We make no offers through our website. A valid and binding contract shall be concluded only upon either our written confirmation of your pur- chase order or, where no such confirmation is given, the delivery of the goods. We reserve the right to reject any purchase order or offer we receive. The terms of the contract shall be determined by our written confirmation, and in the case of delivery without prior confirmation, our delivery note shall constitute the terms of our contract. Oral statements are not binding under any circumstances.
3.2 Subject to standard manufacturing variations, we warrant that our goods shall meet specifications set forth on our applicable sales order confirmation or on the delivery note, whichever is applicable. EXCEPT FOR ADDITIONAL EXPRESS WARRANTIES WE MAY MAKE IN OUR CONFIRMATION ORDER OR DELIVERY NOTE, WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. If models and samples are delivered, their qualities are not warranted unless expressly stated otherwise in the order confirmation. This Section 3.2 shall also apply to any data we provide concerning the result of analyses.
4. Additional Provisions for Website Users
4.1 To place an order through our website, you may have to set up an account. If so, you will be responsible for maintaining the confidentiality of all logon information, including the username and password. You will be responsible for all activities that occur under your account. You agree (a) to immediately notify us at info@KometUSA.com or at 888-566-3887 of any unauthorized use of your password or username or any other breach of security, and (b) to ensure that you log out of the account at the end of each session. We reserve the right to terminate an account at any time and for any reason.
4.2 Our website has been designed to provide general information about Komet and its products and services and to provide a means for you to order products. You may copy material from our website for non-commercial use, provided that you retain all copyright, trademark, and other proprietary notices contained in the original materials on any copies of these materials. These pages are not intended to provide medical or legal advice. You agree not to interrupt or attempt to interrupt the operation of our website in any way. You may not modify the materials at our website in any way.
4.3 Links on our website to third party websites are provided solely as a convenience to you. If you use these links, you will leave our website. We do not control and are not responsible for any of these sites or their content. The link to any other site does not imply our endorsement of that site, its content, or its site-owner, or that we are a sponsor of, or affiliated or associated with, such a site. If you leave our website to access any of the third-party sites linked to our website, you do so entirely at your own risk.
5. Delivery and Passing of Risk
5.1 Where delivery dates or times are not expressly set forth with a provision that time is of the essence in our written order confirmation, such dates and times are to be regarded as estimates. All statements of delivery dates or times on our website are estimates. In the event we do not deliver the products within two (2) weeks after expira- tion of the delivery estimate for reasons other than a force majeure event, you may cancel the order. Time periods for delivery do not begin to run until you have provided to us complete copies of all the documents we require to produce or modify a product, e.g. approval or release of product drawings, if advance payment is required, until you have paid such advance payment.
5.2 In case we are in default pursuant to any contract, our liability shall be limited as set forth in Sections 7 and 8 below.
5.3 In cases of force majeure, for example operational disturbances or breakdowns, delay in transportation, measures taken in the course of industrial action, and in cases of incorrect, delayed or non-delivery by our own suppliers, ir- respective of its cause (reservation of self-supply), and in any other case of insufficient performance for which we are not directly responsible, we shall be entitled to extend the delivery period for the duration of the force majeure event and for a reasonable period thereafter to reinstate production. If we deem it foreseeable that the inability to perform will be of a permanent nature, we are entitled to cancel the delivery in whole or in part without liability. A force majeure event is any event outside our reasonable control, including without limitation, any act of God, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, act of terror, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities.
5.4 We are entitled to make partial deliveries. Place of delivery is always Rock Hill, South Carolina.
5.5 If delivery upon request is agreed upon, the respective requests must be placed within three months after execu- tion of the contract, unless otherwise agreed upon in writing. In case you do not request delivery within the specified time agreed upon, Section 5.6 shall apply accordingly.
5.6 If you do not request delivery within the specified time agreed upon or if shipment is otherwise delayed for rea- sons for which you are responsible, you shall be responsible for the risk of loss of such goods after such time. Moreover, any storage costs incurred after such time shall be payable by you. We are entitled to charge either a lump sum of 0.5% of the invoice amount per month as a reasonable estimate of our storage costs and other damages, or the damage actually suffered, whichever is greater. In addition, if you fail to request delivery within a period of 14 days after the specified time agreed upon, or to remove any impediment for which you are responsi- ble within 14 days after we were prepared to ship, we are entitled to rescind the contract or claim damages for non-fulfillment.
6. Prices, Payments
6.1 Our prices include standard packaging and do not include sales or use tax or any similar tax. Applicable taxes will be added to the invoice amount.
6.2 Any shipping expenses, including insurance in transit, shall be borne by you, unless otherwise agreed upon in writing, at the freight rates, customs tariffs, and any further duties applicable at the time of delivery.
6.3 You are not entitled to make any deductions from amounts due to us due to any counterclaims or to exercise a right of setoff, unless the counterclaims or the right of setoff have been acknowledged by us in writing or declared valid with final effect in a judicial proceeding.
6.4 All payments to us shall be due and payable upon receipt of the order. Discounts will not be offered for early pay- ment. The amount you owe us shall be on the invoice and you may not rely on other statements of the amount due.
6.5 Accounts with open invoices 30 days beyond the above-mentioned terms will receive a written notification. ACCOUNTS WITH OPEN INVOICES 60 DAYS BEYOND THE ABOVE-MENTIONED TERMS MUST BE BROUGHT CURRENT PRIOR TO RECEIVING ADDITIONAL SHIPMENTS. Accounts with open invoices 90 days beyond the origi- nal due date are subject to revocation of open credit status and are subject to collection proceedings. Accounts which are not paid within thirty (30) days of the date of invoice shall, at our option, pay interest on the amount past due at the rate of FIVE percent (5 %) per annum until paid. You agree to pay all reasonable costs we incur, in- cluding without limitation court costs and attorney fees, in collecting any past due amount.
6.6 Payment options are as follows:
6.7 If you do not fulfill your material obligations under any contract, or if any protest or attempt to stop or suspend payment under any bill of exchange or letter of credit or other form of payment occurs, or if we learn of circum- stance which in our opinion makes your creditworthiness or financial standing impaired, including those circum- stances existing at the time a purchase order was placed or accepted but were not known to us at that time (each such event an “Event of Default”), we may suspend performance of such contract or all contracts by written no- tice to you until such time as we have received full payment for any goods already delivered or in process and are satisfied (in our sole discretion) as to your credit for future deliveries. If we suspend performance and later pro- ceed with such order, we shall be entitled to such extension of time for performance as is necessitated by the suspension.
- Check – Mail with the self-addressed envelope provided to you and with the invoice coupon. To ensure fast processing, you need to reference the account number and the invoices being paid on your check.
- Non-Sufficient Fund (NSF) – The charge for non-sufficient fund (NSF) checks is $ 50.00 per check. This applies to any check written to us. If this happens multiple times, we reserve the right to refuse payment by check.
- Credit Card – Two options:
- Call the Accounting Department at 1-888 566-3887 opt 2
- Complete a Credit Card Authorization form and permanently have your credit card on file for future purchases
6.8 In addition, if an Event of Default occurs, we shall also have the right at our option by written notice to you (i) to declare the contract in question or all contracts between us, in default, (ii) to terminate such contract or all con- tracts between us, (iii) notwithstanding any bill of exchange, letter of credit or negotiable instrument we may have accepted as conditional payment, to demand immediate payment of all amounts due under the contract in ques- tion or all contracts between us, and/or (iv) upon our demand, to require you to provide us with the names of the account debtors of all claims relating to the Collateral (as defined below) with respect to the terminated contract or contracts to enable us to disclose our rights in and to the claim for payment and to collect these claims. In any event, you shall, after an Event of Default has been declared by us, forward to us any payments you receive from account debtors for Collateral they have purchased immediately upon receipt by you in the form received with proper endorsement to us.
6.9 Notwithstanding the rights specified in Sections 6.7 and 6.8, upon an Event of Default, we shall also be entitled to make future deliveries (even pursuant to a purchase order accepted before such events) only against advance payment or security satisfactory to us in our opinion. If no such advance payment is made or such security grant- ed within a two-week period after our written notice requiring such advance payment or security, we shall have the right to suspend our performance of or to terminate the contract or all contracts and to pursue all remedies set forth herein.
6.10 You are not entitled to assign any claims to third parties arising out of or in connection with this contract without our prior written consent. If you do, it shall be deemed a material default on your part.
6.11 All taxes of any kind, including without limitation sales tax, use tax and any similar tax, levied by any federal, state, municipal or other governmental authority, which tax we are required to collect or pay with respect to the produc- tion, sale, or shipment of goods sold to you, shall be your responsibility. You agree to pay all such taxes and fur- ther agree to reimburse us for any such payments made by us.
7. Purchase Money Security Interest
7.1 You hereby grant us a purchase-money security interest under § 36-9-103 of the South Carolina UCC in the goods purchased from us and the proceeds thereof (collectively, the “Collateral”) to secure the payments you owe us for such goods. You hereby irrevocably authorize us to file any and all financing statements and continuation state- ments we deem appropriate to perfect the security interest granted herein and any extensions or amendments thereto.
7.2 You shall hold the Collateral in safe custody. We shall have the right at any time after reasonable notice to inspect the Collateral. You shall notify us immediately of any seizure or other interference of third parties in respect to our rights in the Collateral and will provide us with all documents and information necessary to oppose such interfer- ence by all legal means.
7.3 You are entitled to resell the Collateral exclusively within your ordinary course of business and in accordance with your usual prices, terms and conditions.
7.4 You are only authorized to assign your rights arising out of the sale of the Collateral to third parties with our prior written consent. If you do so, it shall be deemed a material default on your part and we shall have the right to exer- cise all rights specified herein.
7.5 After we have declared an Event of Default and demanded immediate payment, if you do not immediately pay the amounts we have demanded, then we may collect all the Collateral given with respect to the contract or contracts for which an Event of Default has been declared, or any part of such Collateral, and may sell and deliver the Col- lateral or any part thereof, in one or more parcels at public or private sale or sales, at our office or elsewhere upon such terms and conditions as we may deem advisable and at such prices as we may deem best, for cash or on credit or for future delivery with assumption of any credit risk. You further agree, at our request, to assemble the Collateral and make it available to us at places which we shall reasonably select, whether at your premises or elsewhere. We shall apply the net proceeds of any sell pursuant to this Section 7.5, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or our rights hereunder, including attorney fees, to the pay- ment in whole or in part of your obligations to us, in such order as we may elect, and only after such application and after the payment by us of any other amount required by any provision of law, need we account for the sur- plus, if any, to you. To the extent permitted by applicable law, you waive all claims, damages and demands you may acquire against us arising out of the exercise by us of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.
8. Acceptance of Goods, Claims, Liability
8.1 You shall examine any models, samples, and all goods immediately upon receipt at the place of destination. The goods are to be particularly examined with respect to their packaging and external quality. If boxes, cartons, or other containers of goods are delivered, samples of the goods have to be taken at random. The goods shall be deemed to have been accepted without any defects, unless you notify us of any defect within ten (10) days after receipt of the goods at the place of destination or, in case of hidden defects, within ten (10) days after the defect was discovered or should have been discovered. The notification must be made in writing or by telefax and has to specify the defect. All such notifications of defects of goods must be addressed to us at Komet USA LLC, 3042 Southcross Blvd, Suite 101, Rock Hill, SC 29730.
8.2 You have an affirmative obligation to notify the freight forwarder of any goods damaged in transit.
8.3 No claim for goods that are damaged in transit or that do not conform to specifications will be allowed unless we are given immediate notice after delivery of goods to the first destination to which they are shipped and we, or our agents, are allowed an opportunity to inspect them. Goods for which damages are claimed shall not be returned, repaired, or discarded without our written consent. YOUR EXCLUSIVE REMEDY AGAINST US, AND OUR SOLE OB- LIGATION, FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO OUR REPLACING GOODS THAT DO NOT CONFORM TO SPECIFICATIONS OR, AT OUR OPTION, REFUNDING THE PURCHASE PRICE. IN NO EVENT SHALL WE, OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS HAVE ANY LIABILI- TY FOR DAMAGES IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE GOODS SOLD HEREUNDER, NOR SHALL WE, OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS HAVE ANY LIABILI- TY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OR FOR LOSS PROFITS OR INTERRUP- TION OF BUSINESS, EVEN IF WE HAVE BEEN INFORMED OF THE LIKELIHOOD OF SUCH DAMAGES.
8.4 Warranty claims shall become time-barred one (1) year after delivery of the goods unless you can prove our fraudulent intent.
8.5 You agree not to make any representations and warranties to your customers about the goods you purchase from us other than the express representations and warranties we provide you in writing. We shall not be liable for any representation and warranty you make beyond those we have expressly given to you, and you agree to indemnify, defend, and hold us harmless against all claims, lawsuits, proceedings, judgments, damages, losses and expenses (including without limitation court costs and attorney fees) against us resulting in any way from such unauthorized representations and warranties you have made.
9. Return and Refund Policy
9.1 If you want to return a product, you have to call 1-888 566-3887 to obtain a Return Merchandise Authorization (RMA) number. PRODUCTS MUST BE RETURNED WITHIN 21 CALENDAR DAYS FROM THE ISSUANCE DATE OF THE RMA NUMBER. If you return items using a pre-paid label sent by us, the cost of shipping shall be deducted from your refund (unless the return is the result of our error). Return shipping charges should be paid by you un- less instructed in writing by the Sales Department. Shipping costs charged on the original sales order will only be refunded if the entire order is defective or returned as a result of our error.
9.2 We accept non-sterile items in resalable condition within 90 calendar days of the invoice date for a full refund. Sterile items can be returned within 30 days of the invoice date for a full refund if packaging of sterile items is completely unopened and seal on package is not broken. We will credit your refund to the account for use on future purchases. Endo motors, including the EndoPilot and its accessories, can be returned within 7 days of delivery if box is unopened and item is in unused condition. All products must be returned in the original, unmarked packaging, which is in resalable condition. Customized items cannot be returned under any circumstances unless such products are defective. Handpieces in unopened packages will be credited only if returned no later than 30 days from date of invoice. Used handpieces or handpieces in opened packages cannot be returned for credit.
9.3 We recommend that you send the returns in a padded envelope or original shipping box, use a traceable shipment method, and insure the package for safe return to us so that you are completely protected if the shipment is lost or damaged during shipping. If you choose not to use a traceable shipping method or not to insure or declare the full value of the product, you will be responsible for any loss or damage to the product in transit.
10. Applicable Law /Jurisdiction
10.1 Your use of our website and all contracts between us shall be governed by the laws of the State of South Carolina, without regard to its choice of law principles. Neither the United Nations Treaty on the International Sale of Goods (CISG) nor any other existing or future bilateral or international treaties shall be applicable to this contract.
10.2 All litigation arising out of or in connection with your use of our website or any contract shall be filed in a state or federal court located in Rock Hill, South Carolina, you hereby irrevocably submit to and consent to the personal jurisdiction of such courts for the purpose of such litigation. You waive any objection based on forum non conveni- ence or any objection to venue of any such action.
11. Concluding Provisions
11.1 Any alterations and amendments to the contract, including this clause, must be made in writing and signed by both of us in order to be valid. This shall also apply to any supplementary and additional agreements. Any waiver of any provision of our contract must be in writing to be effective.
11.2 If a provision herein or in any contract is or becomes partly or completely invalid, the invalidity of such provision or part shall not affect the validity of the remaining provisions of the applicable contract or of the remaining parts of such provision. If permitted by law, the invalid provision or part shall be replaced by a valid provision or part re- flecting in an economic aspect as closely as legally possible the objectives of the invalid provision.
11.4 All our rights and remedies provided for herein or in any contract are cumulative and not exclusive, and the exer- cise or election by us of any right or remedy shall not preclude any other right or remedy we may have at law or in equity.