The following terms and conditions of sale (“Terms and Conditions”) apply to all quotations issued and purchase orders accepted by GO SMILE LLC., a California entity having an address of 1100 Larkspur Landing Circle, Suite 295, Larkspur CA 94939 (“GO SMILE”) for the sale of GO SMILE products when submitted through the GO SMILE Retailer System to various Customers (“Customer”).
Modification of TermsNotwithstanding any different or additional terms that may be included in Customer’s order, acceptance of Customer's order is conditioned on Customer's acceptance of these Terms and Conditions. GO SMILE hereby rejects any terms or conditions in Customer's order or in any other Customer communication that conflict with or that purport to add to or modify these Terms and Conditions. Without limiting the foregoing, Customer’s acceptance of or payment for the GO SMILE products shall constitute acceptance of these Terms and Conditions.
PricingPricing for GO SMILE products is set forth on GO SMILE’s then-current retailer price list. GO SMILE may at its discretion and at any time change the current price structure. Such a change may be imposed, for example, should new and unforeseen variables be exposed regarding manufacturing conditions, material costs, transportation costs or changes in prevailing import duty and tax conditions.
Initial OrderCustomer’s initial order must have a value of at least $500. Customer’s initial order must have a value of at least $500 to be an approved account.
PaymentAll orders require 100% payment in advance via Credit Card. Orders shall not be approved or accepted by GO SMILE until GO SMILE has verified receipt of payment from Vendor.
ShippingShipping charges will be applied when the order is placed.
Shipping method is FedEx Ground.
Product WarrantyGO SMILE warrants that its devices have the following limited warranties, which begin upon the date of purchase and end after the period of time referenced in the following table.
The warranty covers working parts that affect the function of the product. It does NOT cover cosmetic deterioration caused by fair wear and tear or damage caused by accident, misuse, or neglect. Any attempt to open or take apart the product (or its accessories) will void the warranty. Claims under warranty must be supported by reasonable evidence that the date of the claim is within the warranty period. Customer will be sent a Return Authorization (RA) number which should be returned with the GO SMILE product to the address provided by GO SMILE. Shipping costs are non-refundable.
Defective/Damaged ProductsAs noted above, any defective and/or damaged items require prior authorization for replacement within the aforementioned warranty period and Customer shall report to GO SMILE any damaged product prior to expiration of said product’s warranty. To cure any defective or damaged product that has properly been verified by GO SMILE, GO SMILE shall ship to Customer a new product of the same SKU at no cost. GO SMILE is under no obligation to replace or refund any damaged or defective product outside of that product’s warranty period.
Unsold Product ReturnsGO SMILE is under no obligation to provide Customer a refund for or a replacement product for any unsold product that is neither defective nor damaged.
Product Modification/DiscontinuationGO SMILE reserves the right to modify any specifications for or discontinue any product that has not been scheduled for delivery, at any time without notice. GO SMILE also reserves the right to change any product or specifications for any product already scheduled for delivery provided such changes do not negatively affect form, fit, or function.
Representations and WarrantiesCustomer represents and warrants that:
(a) Customer is properly registered, licensed and qualified, has all requisite power and authority under its company rules, constitutions or by laws, memorandum and article of association and in accordance with the laws, rules, and regulations of the Territory to act as a GO SMILE seller, and to conduct its business and perform its obligations hereunder and during the term of this agreement and any extensions thereof, it shall take all action as may be required and necessary to obtain and keep any governmental licenses, permits, registration and approvals that are necessary or advisable for it to carry out its activities hereunder.
(b) Customer’s execution and performance of this Agreement and the sale, marketing and promotion, storage, and handling hereunder of GO SMILE products (including any application, adaptation, performance or other use thereof): (1) will not violate or infringe upon any third party and (2) will not conflict with or violate any agreement Customer has or will have with, any other person or entity.
(c) Neither Customer, nor any person or firm connected with it, has participated or will participate in any action that is in violation of any law, regulation, decree, policy or other directive of the Territory in furtherance of its relationship with GO SMILE or these Terms and Conditions.
(d) GO SMILE hereby retains the right to immediately terminate this Agreement if Customer breaches any of the above representations and warranties. Further, in the event of such termination, Customer shall not be entitled to any further payment, regardless of any activities undertaken or agreements with additional third parties entered into prior to termination, and Customer shall be liable for all related damages and remedies.
(e) TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS GO SMILE, ITS AFFILIATES, MEMBERS, SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS AND EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, COSTS (INCLUDING REASONABLE ATTORNEY’S FEES), JUDGEMENTS, CAUSES OF ACTION, COURT ORDERS, PAYMENTS, LOSSES, DAMAGES, EXPENSES, DEMANDS, AND/OR ANY AND ALL OTHER PENALTIES WHICH GO SMILE, ITS AFFILIATES, AND/OR THEIR RESPECTIVE OFFICERS AND EMPLOYEES MAY SUFFER AS A RESULT OF ANY SUCH MISREPRESENTATIONS OR ANY OTHER UNLAWFUL, RECKLESS, OR NEGLIGENT ACTIONS OR OMISSIONS BY CUSTOMER OR ITS EMPLOYEES, CONTRACTORS, SUBSIDIARIES, OR AFFILIATES.
(f) Customer will retail GO SMILE Products with all packaging, warranties and disclaimers intact as shipped from GO SMILE.
(g) Customer will make available to its end user customers a copy of GO SMILE’s limited warranty for inspection prior to purchase.
(h) CUSTOMER ACKNOWLEDGES THAT EXCEPT FOR GO SMILE’S LIMITED WARRANTY ACCOMPANYING THE GO SMILE PRODUCT, GO SMILE DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS TO CUSTOMER OR END USERS, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
(i) Customer agrees that it will not: (1) disassemble, decompile or reverse engineer any GO SMILE products, (2) copy or otherwise reproduce any GO SMILE products, in whole or in part, or (3) modify GO SMILE products or their packaging in any manner.
(j) Customer will: (1) conduct business in a manner that reflects favorably at all times on GO SMILE products and the good name, goodwill and reputation of GO SMILE; (2) avoid deceptive, misleading or unethical practices that are or might be detrimental to GO SMILE, GO SMILE products or the public; (3) make no false or misleading representations with regard to GO SMILE or GO SMILE products; (4) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to GO SMILE or GO SMILE products; (5) make no representations, warranties or guarantees to customers or to the trade with respect to the specifications, features or capabilities of GO SMILE products that are inconsistent with the literature distributed by GO SMILE; and (6) not enter into any contract or engage in any practice detrimental to the interests of GO SMILE in relation to GO SMILE products.
(k) GO SMILE WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS, LOST BUSINESS, COST OF COVER, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE PURCHASE OR USE OF GO SMILE PRODUCTS, EVEN IF GO SMILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE TOTAL LIABILITY OF GO SMILE FOR ANY CLAIM, LOSS OR DAMAGE SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO GO SMILE FOR THE PRODUCT TO WHICH SUCH CLAIM, LOSS OR DAMAGE RELATES.
GO SMILE may from time to time announce policies regarding the advertising and/or sale of GO SMILE products. GO SMILE may, in its sole discretion, add, modify or discontinue such policies at any time. Customer acknowledges that they have read and understand the policies in effect at the time of Customer’s order.
MAP Policy AdherenceCustomer agrees to adhere to GO SMILE’s Minimum Advertised Price (“MAP”) Policy, when applicable. GO SMILE, at its sole discretion, shall provide Customer with said MAP Policy in a later communication.
Intellectual PropertyCustomer agrees to abide by the following:
(a) During the term of the Agreement and subject to the terms and conditions specified herein, GO SMILE grants to Customer a non-exclusive, non-transferable, limited license to use, in the Territory, GO SMILE's trademarks, trade names, and logos as necessary for Customer to fulfil its obligations hereunder. Customer’s use of such trademarks, trade names, and logos will be in accordance with GO SMILE policies in effect from time to time, including but not limited to trademark usage. Customer agrees not to attach any additional trademarks, trade names or logos to any GO SMILE product. Customer further agrees not to use any GO SMILE trademark, trade name, or logo in connection with any non-GO SMILE product. GO SMILE reserves the right to review planned uses of its trademarks, trade names, and logos to confirm that they are within the guidelines prior to usage of such trademarks by Customer.
(b) Customer will include on each GO SMILE Product that it sells and, on all containers and storage media thereto related, all trademark, copyright, design, patent, and other notices of proprietary rights included by GO SMILE on such GO SMILE Products. Customer agrees not to alter, erase, deface or overprint any such notice on anything provided by GO SMILE. Customer also will include the appropriate trademark, copyright, design, and patent notices when referring to any GO SMILE Product in advertising and promotional materials.
(c) Customer acknowledges that GO SMILE owns and retains all trademarks, trade names, logos, copyrights, designs, patents, and other proprietary rights in or associated with GO SMILE products and agrees that it will not at any time assert or claim any interest in or do anything that may adversely affect the validity of any trademark, trade name, logo, copyright, design, or patent belonging to GO SMILE.
(d) Upon expiration or termination of its relationship with GO SMILE, Customer will immediately cease all display, advertising, and use of all GO SMILE trademarks, trade names, logos, and copyrighted works and will not thereafter use, advertise, or display any trademark, trade name, logo, or copyrighted work which is, or any part of which is, similar to or confusing with any trademark, trade name, logo, or copyrighted work associated with any GO SMILE Product.
(e) Customer agrees to use reasonable efforts to protect GO SMILE proprietary rights and to cooperate at Customer’s expense in GO SMILE 's efforts to protect its proprietary rights. Customer agrees to promptly notify GO SMILE of any known or suspected breach of GO SMILE proprietary rights that comes to Customer’s attention.
(f) Customer shall not provide any of its customers with GO SMILE trademarks, trade names, logos, copyrighted works, or any other GO SMILE owned intellectual property, without prior written approval by GO SMILE.
Proprietary InformationCustomer acknowledges that it may obtain information relating to GO SMILE and GO SMILE Products of a confidential and proprietary nature ("Proprietary Information"). Such Proprietary Information includes without limitation trade secrets, know-how, inventions, techniques, processes, customer, and financial information and sales and marketing plans. Customer will (a) use such Proprietary Information only in connection with fulfilling its obligations under this Agreement, (b) during the term of this Agreement and for a period of five (5) years thereafter, hold such Proprietary Information in strict confidence and exercise due care with respect to its handling and protection of such Proprietary Information, consistent with its own policies concerning protection of its own proprietary and/or trade secret information, and (c) disclose, divulge, or publish the same only to such of its employees or representatives as are Qualified Personnel and to no other person or entity, whether for its own benefit or for the benefit of any other person or entity. The obligations contained herein will not apply to Proprietary Information which (a) is or becomes public knowledge without the fault or action of Customer, (b) is received by Customer from a source other than GO SMILE, which source received the information without violation of any confidentiality restriction, (c) is independently developed by Customer without violation of any confidentiality restriction, or (d) is or becomes available to Customer on an unrestricted basis from GO SMILE.
TerminationGO SMILE shall have the right to terminate any business relationship with Customer at any time and for any reason.
MiscellaneousCustomer shall abide by the following:
(a) GO SMILE shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond GO SMILE 's reasonable control, including but not limited to acts of war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, failure to obtain export licenses or shortages of transportation, facilities, fuel, energy, labor or materials. In the event of any such delay, GO SMILE may defer the delivery date of orders for GO SMILE products for a period equal to the time of such delay.
(b) These Terms and Conditions constitute the complete and exclusive agreement between the parties pertaining to the subject matter hereof and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter. Customer acknowledges that it is not entering into this Agreement on the basis of any representations not expressly contained herein.
(c) The party executing this Agreement represents and warrants that he or she has been duly authorized under Customer’s charter documents and applicable law to execute this Agreement on behalf of Customer.
(d) This document and the interpretation of its terms shall be governed by and construed in accordance with the laws of the state of Nevada and subject to the exclusive jurisdiction of the federal and state courts located in Las Vegas, Nevada.
(e) If any provision of the Terms and Conditions is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, only such provision shall be determined to be illegal, invalid, or unenforceable under such law and be deemed null and void; the remainder of this document shall otherwise remain in full force.