Product Supply Agreement
Last Updated: 21 December 2022
This non-exclusive Product Supply Agreement (“PSA”) sets forth the terms and conditions pursuant to which EON DENTAL JORDAN (FREE ZONES) a limited liability corporation registered with the Jordan Free and Development Zones Group under registration number 2942 (“Eon Dental”) will provide custom-made sequential clear aligners and other related products (“Products”) to the party (“Purchaser”) executing the Proposal. This PSA shall govern the contractual relationship between Eon Dental and Purchaser along with the Software License Agreement (“SLA”), and, where applicable, the Treatment Setup Services Agreement (“TSA”) (together “Agreements”). Eon Dental and the Purchaser are here in after referred to individually as the “Party” and collectively the “Parties”.
The following terms will have the following meaning (words importing the singular include the plural and words importing the plural include the singular):
"Affiliate” means, with respect to a Party, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Party. As used in this definition of “Affiliate”, the term “control” shall mean, as to any such other Person, (a) direct or indirect ownership of more than fifty percent (50%) (or such lesser percentage as is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction) of the voting interests or other ownership interests in the Person in question, or (b) possession, directly or indirectly, of the power to direct or cause the direction of management or policies of the Person in question (whether through ownership of securities or other ownership interests, by contract or otherwise).
"Authorized Representative” means the Receiving Party’s (a) Affiliates and its and each of its Affiliate’srespective employees, directors, and advisors who reasonably need to know Confidential Informationfor performance of the Receiving Party’s obligations or exercise of the Receiving Party’s rights granted orretained under the Agreements, and (b) attorneys, accountants, consultants, agents, independentcontractors and professional advisors who have a business need to know Confidential Information ortrade secrets for performance of the Receiving Party’s obligations or exercise of the Receiving Party’srights granted or retained under the Agreements.
"Business Days” means a day (other than a Friday or Saturday or public holiday in Amman-Jordan) on which banks are generally open for normal business in Amman-Jordan.
“Confidential Information” means confidential information as defined in Article 13 of this PSA.
Data Protection Laws” means the General Data Protection regulation (Regulation (EU) 2016/679(GDPR) and any other laws regulating the processing of personal data that are specifically applicable onor agreed upon between the Parties.
"Data Protection Laws” means the General Data Protection regulation (Regulation (EU) 2016/679(GDPR) and any other laws regulating the processing of personal data that are specifically applicable onor agreed upon between the Parties.
"Disclosing Party” means the Party disclosing Confidential Information hereunder
“Person” means any natural person, partnership, trust, estate, association, limited liability company,corporation, custodian, nominee, governmental instrumentality or agency, body politic or any otherentity in its own or any representative capacity.
“Receiving Party” means the Party receiving Confidential Information here under.
"Specifications” means the specifications for the Products corresponding to the Treatment Setup,Branding Instructions and the Quality Agreement
“Treatment Setup” means the rendering of a preview in STL Format of how the subject Products willimpact the teeth of the subject Patient (as defined hereafter)
2.1.
The Purchaser agrees to purchase from Eon Dental, and Eon Dental agrees to manufacture, provide and sell to the Purchaser, the Products in accordance with the terms and conditions set out in this PSA.
2.2.
Purchaser will not promote, market, distribute or sell the Products to persons outside of the territory shown in the Proposal (“Territory”). Neither Party will represent or otherwise present itself or its Affiliates as a representative of the other Party.
3.1.
The Purchaser shall provide Eon Dental with an order for the Products (“Case Order”) for an individual patient (“Patient”). The Purchaser shall place Case Orders and the associated Treatment Setup through Eon Dental’s interactive case management portal (“Platform”) accessed through login details or application programing interfaces provided by Eon Dental to the Purchaser (“API”).
3.2.
For each Case Order, Eon Dental shall manufacture and deliver the Products based on the Treatment Setup EX WORKS to the Purchaser Delivery Address using reputable overnight carriers. Title and risk shall be removed from Eon Dental upon delivery to the first carrier. Shipping, export and import customs duties and associated fees (together “Delivery Fees”) will be paid by Eon Dental and charged to the Purchaser in accordance with Article 5 of this PSA.
3.3.
A Case Order shall take effect at the date and time the Treatment Setup is either: (i) received in the Platform in accordance with Article 3.1 above or (ii) if applicable, approved by the Purchaser in accordance with the terms and conditions of the TSA and constitutes an official purchase order, instructing Eon Dental to manufacture the Products, after which time the terms and conditions in Article 3.4 below applies.
3.4.
If a Customer cancels a Case Order for any reason whatsoever:
Before manufacturing the Products, then Eon Dental shall not charge any price for the Products associated with the Case Order;
(i)
After manufacturing the Products, then Eon Dental not credit or refund any portion of the fees or prices for the Products or packaging material, or the Delivery Fees associated with the Case Order.
(ii)
(ii)
After manufacturing the Products, then Eon Dental not credit or refund any portion of the fees or prices for the Products or packaging material, or the Delivery Fees associated with the Case Order.
4.1.
Subject to the terms and conditions of this PSA, Eon Dental shall use commercially reasonable efforts to complete the manufacturing of a Case Order in accordance with the following:
In the event the Treatment Setup is received in the Platform in accordance with Article 3.1 of this PSA:
(i)
In the event the Treatment Setup is delivered by Eon Dental in accordance with the TSA: Eon shall complete the manufacturing of a Case Order no later than five (5) Business Days from delivering the Treatment Setup
(ii)
4.2.
The Parties agree that Eon Dental shall not be liable for any losses, damages, liabilities or costs incurred by the Purchaser in case of delay in shipment or delivery by the carrier.
5.1.
Use of the API, Platform and any website owned or operated by Eon Dental (together, “Eon Systems”) is governed by the Software License Agreement. The Purchaser acknowledges that by using the Eon Systems, the Purchaser agrees to the terms and conditions in the Software License Agreement.
5.2.
The Purchaser may use the API to solely access the Platform in accordance with the communication provided in writing by Eon Dental to the Purchaser. The Purchaser may not use the API for any purpose, feature or function not described therein.
6.1.
All prices for the Products are stated in the Proposal unless otherwise agreed between the Parties.
6.2.
All sales taxes, value added taxes, and any such similar or associated fees are to be paid by the Purchaser. If the Purchaser is required by laws or regulations to deduct or withhold any such amount from any sum payable to Eon Dental, then the sum payable by the Purchaser will be increased to the extent necessary to ensure that after such tax or other amount has been deducted, withheld or paid, Eon Dental receives on the due date and retains (free from any liability in respect of any such deduction, withholding or payment) a net sum equal to what it would have received and so retained had no such deduction, withholding or payment been required or made.
6.3.
Parties acknowledge that during the term of this PSA Eon Dental shall have the right to change the prices charged to the Purchaser from time to time without the prior approval of the Purchaser.
7.1.
Eon Dental will provide the Purchaser with an invoice for all costs and fees (including Delivery Fees) for and associated with the sale of the Products with each shipment.
7.2.
Eon Dental’s invoices are in USD and are payable within fifteen (15) calendar days from the end of each calendar month.
7.3.
The Purchaser shall be deemed to have performed its payment obligations when the respective sums due have been received by Eon Dental.
7.4.
In case of delay of thirty (30) days past the due date of payment of any properly and undisputed invoiced amount to be made by the Purchaser to Eon Dental under the Agreements: (i) Eon Dental shall be allowed to suspend or terminate performance of any of its obligations under any or all of the Agreements; and (ii) the Purchaser shall automatically and without any notice be charged interest at a per monthly rate of one percent (1%). Amounts due from Purchaser to Eon Dental under any of all of the Agreements may not be withheld or offset by Purchaser against other amounts for any reason.
8.1.
Eon Dental warrants that any and all Products it sells to the Purchaser are not damaged, bent or broken at the time the Products are delivered to the Purchaser, are conforming with the applicable Specifications and, where applicable, Branding Instructions, and are free from defects in material and workmanship (“Warranty”), except for circumstances where this PSA expressly states that no warranty shall apply. Except for the Warranty, Eon Dental disclaims any and all other representations and warranties of any kind, express or implied, including the implied warranties of merchantability and fitness for a particular purpose, all design warranties and all performance warranties and the above Warranty shall exclusively describe Eon Dental’s obligations with regards to the quality of the Products sold. For the avoidance of doubt, the Warranty is given only to the Purchaser and not to any third-Party.
8.2.
The Purchaser shall have the full and exclusive responsibility for having the Products used in a professional manner and in accordance with the health and clinical requirements that apply under the applicable laws.
8.3.
The period of validity of the Warranty will commence upon the date of delivery by Eon Dental of the Products and shall expire, and all claims for defective Products shall expire one (1) week following the completion of each Product’s wear cycle as shown in the Treatment Setup.
8.4.
The Warranty does not cover, and Eon Dental does not provide any warranty for, defects and/or faults arising from (i) the misuse or improper handling of the Products by the Purchaser or any third-party, or (ii) any inaccuracy of Patient Data or other information provided to Eon Dental, or the non-conformity between the teeth of the relevant Patient and the Treatment Setup provided to Eon Dental. “Patient Data” means and includes a Patient’s external and intraoral photos, age and name, a case prescription, X-rays, and intraoral scans.
8.4.
The Warranty does not cover, and Eon Dental does not provide any warranty for, defects and/or faults arising from (i) the misuse or improper handling of the Products by the Purchaser or any third-party, or (ii) any inaccuracy of Patient Data or other information provided to Eon Dental, or the non-conformity between the teeth of the relevant Patient and the Treatment Setup provided to Eon Dental. “Patient Data” means and includes a Patient’s external and intraoral photos, age and name, a case prescription, X-rays, and intraoral scans.
8.5.
For any Warranty claim to be valid:
The Purchaser must notify Eon Dental by means of an email to
customersupport@eondental.com, without unreasonable delay and during the period of validity of the Warranty, of the damage, non-conformity or defect of the Products and the Purchaser must provide evidence proving the same;
(i)
The Purchaser will supply such additional information and documentation as Eon Dental may reasonably request in the course of evaluating the Warranty claim; and
(ii)
8.6.
Eon Dental will, at Eon Dental’s cost and expense, as sole and exclusive remedy in relation to the Warranty, repair or replace the Product.
9.1.
Eon Dental is solely responsible for complying with laws and regulations in the Territory relating to the premarket submission to demonstrate that the device to be marketed is safe and effective with regards to manufacturing and labeling of the Products (“Manufacturing Requirements”).
9.2.
The Purchaser is solely responsible for obtaining and maintaining throughout the term of this PSA the required approvals, registrations, licenses or authorizations necessary for the Products to be imported, enter the Territory and/or pass the customs and the Territory’s border (“Import Approvals”).
9.3.
Eon Dental is solely responsible for obtaining and maintaining throughout the term of this PSA the required approvals, registrations, licenses or authorizations necessary to market, promote and sell the Products to the Purchaser in the Territory (“Regulatory Approvals”).
9.4.
The Purchaser is solely responsible for obtaining and maintaining throughout the term of this PSA the required approvals, registrations, licenses or authorizations necessary to market, promote and sell the Products to the Patients in the Territory (“Sales Approvals”).
10.1.
Eon Dental shall indemnify, defend and save harmless the Purchaser from and against any and all losses, damages, liabilities or costs (including attorney fees) (“Losses”) incurred by the Purchaser resulting from any third-party claim, suit, action, or proceeding (“Claim”) as evidenced by a final and binding decision of a court or authority of competent jurisdiction and arising out of or resulting from (i) misrepresentation or breach of warranty (including the Warranty) by Eon Dental, or material breach or violation by Eon Dental of any terms or conditions of this PSA including complying with, obtaining and maintaining the Manufacturing Requirements and Regulatory Approvals, (ii) infringement of Intellectual Property Rights of a third party by Eon Dental (except in so far such Intellectually Property Rights relate to a specific feature requested by the Purchaser) in so far as any such Intellectual Property Rights are used by or on behalf of Eon Dental for the purposes of this PSA.
10.2.
The Purchaser shall indemnify, defend and save harmless the Purchaser from and against any Losses incurred by Eon Dental resulting from any third-party Claim as evidenced by a final and binding decision of a court or authority of competent jurisdiction and arising out of or resulting from (i) misrepresentation or breach of warranty by the Purchaser, or material breach or violation by the Purchaser of any terms or conditions of this PSA, including complying with, obtaining and maintaining the Import Approvals and Sales Approvals (ii) material breach of any term or condition of any agreement between the Purchaser and any Patient, or any acts of failure involving any Patient, or (iii) any incorrect or incomplete information including Patient Data, provided to Eon Dental (iv) any misuse of the Products by the Purchaser or Patient, or any changes to the Products or the packaging thereof by the Purchaser, (v) false and misleading claims or advertising by the Purchaser about the Products including failure to make promotional and instructional materials consistent with the information and warnings on the Product labels, (vi) infringement of Intellectual Property Rights of a third party by the Purchaser in so far as any such Intellectual Property Rights are used for the purposes of this PSA.
10.3.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, SHALL ANY PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, RELIANCE, ENHANCED DAMAGES OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OR INTERRUPTION OF BUSINESS OR LOSS OF PATIENT DATA OR OTHER DATA) OR COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES INCURRED BY THE OTHER PARTY HERETO RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENTS, EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
10.4.
The indemnified Party agrees that the indemnifying Party can only be held liable as per the terms of this Article 10 to the extent damages suffered by indemnified Party are directly and solely attributable to the indemnifying Party in pursuance to the terms agreed upon under this PSA.
10.5.
The Parties explicitly agree that Eon Dental shall not, in any way whatsoever, throughout the term of this PSA and thereafter, be liable towards the Purchaser of damages and liabilities of whatever type that result from (i) services (including producing a Treatment Setup) provided to the Purchaser by third parties or performed by the Purchaser in relation to the services agreed upon under this PSA , (ii) the lack of any Import Approvals, the Products are withheld at the customs and the shipment does not reach the Purchaser or is delayed, or (iii) if the Products are altered, modified, customized in any way whatsoever, or have been used in combination with any other product or service provided, by any Person other than Eon Dental.
10.6.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE), SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES IN AN AMOUNT IN EXCESS OF FIFTY PER CENT (50%) THE AGGREGATE AMOUNT PAID BY THE PURCHASER TO EON DENTAL DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO THE CLAIM.
10.7.
Each Party will promptly notify the other Party in writing upon learning of any Claim that may give rise to the indemnification requirements under this PSA and reasonably cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party will immediately take control of the defense and investigation of such Claim and will employ counsel of its choice to handle and defend the same, at the indemnifying Party’s sole cost and expense. The indemnifying Party will not settle any Claim in a manner that affects the rights of the indemnified Party without the indemnified Party’s prior written consent. If the indemnifying Party fails or refuses to take control of the defense of any Claim, the indemnified Party shall have the right, but no obligation, to defend against any Claim, including settling a Claim after giving prior written notice to the indemnifying Party, in such manner and on such terms as the indemnified Party may deem appropriate. Neither the indemnifying Party’s failure to perform its indemnification obligations nor any act or omission of the indemnified Party in the defense or settlement of any Claim will relieve the indemnifying Party of its indemnification obligations, except to the extent that the indemnifying Party can demonstrate that the indemnifying Party has been materially prejudiced as a result of any act or omission of the indemnified Party other than as a result of the indemnified Party defending against any Claim in the event the indemnifying Party fails or refuses to take control of the defense of any action.
11.1.
This PSA takes effect on the date the Purchaser first makes a Case Order and shall remain effective until the validity shown in the Proposal or terminated as provided herein.
11.2.
This PSA may be terminated by either Party at any time for any reason whatsoever and without providing said reason to the other Party by giving a written termination notice to the other Party of no less than thirty (30) days.
11.3.
Without prejudice to its right to claim full compensation for damages suffered in accordance with the provisions of this PSA, either Party may terminate this PSA with immediate effect by written notice to the other Party as follows:
if the other Party commits a material breach of this PSA or any of the Agreements, this PSA can be terminated immediately upon delivery of written termination notice without first giving notice to remedy;
(i)
if a direct competitor of the terminating Party acquires substantially all of the stock, equity, or assets of the other Party; or
(ii)
if the other Party becomes insolvent, is declared bankrupt, is subject to a liquidation, winding-up or receivership, suspends payment of its due debts or announces its intention to do so, makes an assignment for the benefit of creditors or any similar arrangement under any bankruptcy law, or discontinues business.
(iii)
12.1.
Upon expiration or termination of this PSA for any reason, Eon Dental shall immediately cease any and all use of Purchaser Marks and manufacturing Products, and the Receiving Party must immediately destroy or return to the Disclosing Party, at the Disclosing Party’s option all Confidential Information; however, the Receiving Party shall not be required to return to the Disclosing Party or destroy those copies of Confidential Information that (A) reside on the Receiving Party’s backup, disaster recovery or business continuity systems, or (B) the Receiving Party is obligated by the applicable law to retain. The Receiving Party agrees that, following expiration or termination of this PSA, the Receiving Party will neither retrieve nor use Confidential Information for any purpose other than those specified in this Article 12.
12.2.
Upon either Party giving a written termination notice to the other Party in accordance with this PSA, all of Eon Dental’s invoices to the Purchaser shall become due and payable in advance and prior to making the Products available to the Purchaser by Eon Dental.
13.1.
The Parties acknowledge that in the course of performing its obligations under the Agreements, the Receiving Party may have access to and be entrusted with Confidential Information (as defined hereafter), the unauthorized use or disclosure of any of which would be detrimental to the Disclosing Party.
13.2.
For purposes of the Agreements, "Confidential Information" means any and all information made accessible by or on behalf of the Disclosing Party from time to time to the Receiving Party under the Agreements that the Disclosing Party reasonably considers to be confidential and is the subject of reasonable efforts to keep it confidential , including, but not limited to, information relating to the Disclosing Party’s products and services, customer and supplier information, product manufacture and installation, product and service cost or pricing, the obligations under and specific terms of this Agreement, past, present and future business activities, business methods and structure, personnel allocation and principals, clients and customers' transactions and affairs, technology, designs, documentation, manuals, budgets, legal and financial affairs, statements and information, sales estimates, accounts, dealers’ lists, customer lists, marketing studios, drawings, notes, memoranda and the information contained therein, trade secrets, know-how, formulas, processes, methods, works-in-progress, specifications, branding information, computer programs and related source and object codes, technology and technical or other information relating to the development, manufacture, clinical testing, analysis, marketing, sale and supply and proposed development, manufacture, clinical testing, development and marketing of products and services and other information and material, whether or not such information is marked confidential or is by its nature intended to be exclusively for the knowledge of the Receiving Party alone. Although certain information may be generally known in the relevant industry, the fact that the Disclosing Party uses such information may not be so known, and in such instance, the information would comprise Confidential Information. Furthermore, the fact that various fragments of information or data may be generally known in the relevant industry does not mean that the manner in which the Disclosing Party combines them, and the results obtained thereby, are so known, and in such instance, such information or data would also comprise Confidential Information. For purposes of the Agreements, “Confidential Information” does not include information or material that the Receiving Party can substantiate: (a) was, or has become, publicly known in the public domain (other than as a result of wrongful act or a breach of the Agreements by the Receiving Party); (b) was known to or in the Receiving Party’s possession prior to the Receiving Party’s receipt from the Disclosing Party; (c) is approved for release by prior written authorization of the Disclosing Party; or (d) is rightfully obtained by the Receiving Party from a third-party Person who was not under any obligation of confidentiality to the disclosing Party.
13.3.
The Receiving Party agrees and undertakes that it shall not, at any time during the term of this PSA and for a period of three (3) years after the expiration or termination of this PSA with respect to Confidential Information: (i) reproduce, distribute or disclose any Confidential Information to any Person (except as explicitly permitted in Articles 13.4 and 13.5 below); (ii) use any Confidential Information for any purpose other than as reasonably necessary for the Receiving Party to perform its obligations or exercise its rights granted or retained pursuant to the Agreements; and (iii) access any Confidential Information from the Disclosing Party for any purpose other than as reasonably necessary for the Receiving Party to perform its obligations or exercise its rights granted or retained under the Agreements. Any use or disclosure of Confidential Information by the Receiving Party for any purpose other than as reasonably necessary for the Receiving Party to perform its obligations or exercise its rights granted or retained pursuant to any of the Agreements shall be a material breach of the Agreements. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of Confidential Information and prevent its further unauthorized use or disclosure. The protection afforded to Confidential Information by this Article 13 is not intended to limit in any way any protection provided to any such information under the applicable law.
13.4.
Notwithstanding Article 13.3 above, the Receiving Party has the right to disclose Confidential Information to its Authorized Representatives. The Receiving Party warrants to the Disclosing Party that any Authorized Representative who has access to Confidential Information has signed a confidentiality agreement in content substantially similar to the provisions hereof and/or is under a professional, fiduciary or written obligation of confidentiality substantially similar to the provisions hereof, prior to any disclosure of Confidential Information to the Authorized Representative.
13.5.
If the Receiving Party is presented with legal process under which it could be legally compelled to disclose any Confidential Information of the Disclosing Party, the Receiving Party will promptly notify the Disclosing Party of the same (to the extent permitted by applicable law) in writing before any disclosure is made so that the Disclosing Party may, at its discretion, seek a protective order or other appropriate remedy to preserve the confidentiality of Confidential Information. In any event, only that portion of the Confidential Information that it is legally required to be disclosed may be disclosed.
13.6.
ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR FREEDOM FROM INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OR OTHER PROPRIETARY RIGHTS.
14.1.
Intellectual Property Rights
14.1.1
“Intellectual Property Rights” mean all copyrights, patents, Marks (as defined hereafter), trade secrets, moral rights, know-how, and other intellectual and industrial property and rights similar to the foregoing, whether registered or unregistered, pursuant to the law of any jurisdiction throughout the world, relating to products, services, material, documents, software, firmware, API or other items a party prepares, produces, or makes available. “Marks” mean trademarks, service marks, logos, corporate names, trade names, internet domain names or URLs used by a party to distinguish its products or services.
14.1.2
Each Party agrees that it retains sole and exclusive ownership in all its Intellectual Property Rights and Confidential Information that it owns, including any it creates or provides to the other Party under any of the Agreements. Any modifications and improvements to a Party’s (“Former Party”) Intellectual Property Rights or Confidential Information by the other Party shall be the sole and exclusive ownership of the Former Party. The Former Party grants the other Party a non-exclusive, non-transferable, and non-sublicensable right to use the Former Party’s Intellectual Property Rights and Confidential Information provided to the other Party under the Agreements as reasonably necessary for the other Party to perform its obligations or exercise its rights granted or retained pursuant to the Agreements, but at all times in accordance with any instructions or specifications provided by the Former Party to the other Party.
14.1.3
No assignment or transfer of any Intellectual Property Rights, Confidential Information, or other proprietary rights is intended or granted by either Party under any of the Agreements.
14.2.1
Where applicable, the Products shall be branded in accordance with the Purchaser’s written instructions to Eon Dental, which shall govern and control (“Branding Instructions”). In no event shall Eon Dental use any Purchaser Mark for any purpose other than as reasonably necessary to perform Eon Dental’s obligations under the Agreements and at all times in accordance with any instructions provided by the Purchaser to Eon Dental.
14.2.2
To the extent any Products will be branded using any Purchaser Mark in accordance with the Purchaser’s Branding Instructions, the Purchaser hereby grants to Eon Dental a non-exclusive, non-transferable, and non-sublicensable right to use the Purchaser Marks during the term of this PSA in connection with performing its obligations under the Agreements.
14.2.3
Eon Dental acknowledges the existence, validity, enforceability, and the Purchaser’s ownership of Purchaser Marks, and any Intellectual Property Rights therein and related thereto. Eon Dental will not contest or oppose in any manner the existence, validity, enforceability, or ownership of any Purchaser Mark, any portion thereof, or any Intellectual Property Rights therein or related thereto. In connection with the use of any Purchaser Mark, Eon Dental will not in any manner represent that it has any ownership in any Purchaser Mark, and Eon Dental acknowledges that use of Purchaser Marks inures solely to the benefit of the Purchaser. On termination or expiration of this PSA for any reason, Eon Dental will immediately cease and desist from all use of any and all Purchaser Marks in any way. Furthermore, Eon Dental will not at any time thereafter adopt or use, without the Purchaser’s prior written consent, any Mark that is confusingly similar to any Purchaser Mark.
15.1.
Each Party undertakes, represents, and warrants that it will comply with the Data Protection Laws relating to the collection, use, storage, and protection of any personal data of Patients (including Patient Data). In the framework of its obligations under this Article 15, the Purchaser shall obtain from each Patient a duly signed Patient consent form regarding the use of personal data of such Patient (including Patient Data) by the Parties and such form being in compliance with all requirements as set forth in the Data Protection Laws. The Purchaser acknowledges to have read and accepted Eon Dental’s privacy policy available on the Eon Systems.
15.2.
Eon Dental undertakes, represents and warrants that it will use and process any personal data of Patients (including Patient Data) only for the purpose of performing its obligations under the Agreements.
15.3.
The Purchaser agrees that Eon Dental may use Patient Data for promotional, educational, or research and development purposes, publications in professional journals or use in professional collateral materials, provided that such Patient Data has first been anonymized in a way that neither the Purchaser nor any Patient is identifiable.
15.4.
The Purchaser acknowledges that Eon Dental may use a third party service provider to host the Eon Systems. The Purchaser agrees to comply with any terms of such third party service provider that may be notified to Purchaser by Eon Dental in writing from time to time or otherwise made available by Eon Dental to Purchaser from time to time. Eon Dental shall not be responsible for any non-availability of the Eon Systems to the extent such non-availability arises out of actions by the third party service provider or Force Majeure.
the Agreements are personal to both Eon Dental and the Purchaser, and neither Party can assign in whole or in part any of its rights or obligations under any of the Agreements to any Person, without the prior written consent of the other Party, except that either Party may assign its rights and obligations under the Agreements or any part hereof to (a) one or more of its Affiliates, and/or (b) a purchaser of all or substantially all of the stock, equity, or assets of the assigning Party, in each case, without the prior written consent of the other Party. Subject to the foregoing, the Agreements are binding upon Eon Dental and the Purchaser and their permitted successors and assignees.
17.1
It being understood that any information under or in relation to the Agreements may be exchanged by email or electronic data interchange. The Parties explicitly agree that any formal notice or communication required by the Agreements shall be in writing and shall be deemed given in accordance with Article 17.3 of this PSA if such notice is addressed to the Party to be notified at such Party’s address set forth below:
For Eon Dental:
customersupport@eonadental.com (with a copy of legal notices to
legal@eondental.com)
For the Purchaser:
As shown in the Proposal
17.2
Any Party may change its notice address by giving written notice to the other Party in accordance with Articles 17.1 above.
17.3
Any and all notices permitted or required to be given hereunder will be deemed duly effectively given upon receipt when delivered personally; upon the earlier of two (2) Business Days or receipt acknowledged by return email when delivered by email; or upon two (2) Business Days after being deposited with an industry recognized and reputable overnight international carrier, signature required.
17.4
Where applicable, Eon Dental will ship Products to Purchaser at the following address ("Purchaser Delivery Address"):
As shown in the Proposal
16.1
It being understood that any information under or in relation to the Agreements may be exchanged by email or electronic data interchange. The Parties explicitly agree that any formal notice or communication required by the Agreements shall be in writing and shall be deemed given in accordance with Article 17.3 of this PSA if such notice is addressed to the Party to be notified at such Party’s address set forth below:
The descriptive words or phrases in the headings of the Agreements are inserted for convenience and reference purposes only and are not to be used in interpreting the Agreements.
No Party is considered to have waived any rights under any of the Agreements unless such waiving Party executes an explicit waiver in writing. If a Party waives any right under the Agreements, such waiver will not constitute a waiver of any other or subsequent right of the Party even if it is identical or similar in character.
the Agreements and all obligations (other than obligations to pay money) hereunder of either Party shall be suspended for any period (“Period of Suspension”) during which either Party reasonably believes that it is prevented or hindered from materially complying with its obligations under any part of the Agreements due to acts of God, including war or warlike conditions (e.g., terrorism, invasion, riot, or other civil unrest), blockades, international sanctions or embargoes, serious accidents, fires, floods, strikes or lock-outs, lockdowns, uncontrollable and unforeseen transport interruptions, government intervention, civil insurrection, epidemics or pandemics, or any other event that was unforeseeable by the affected Party and beyond the affected Party’s reasonable control and could not have been avoided by the affected Party by using commercially reasonable efforts (“Force Majeure”); provided, however, that the affected Party (i) shall promptly notify the other Party of the Force Majeure; (ii) shall provide the other Party, from time to time, with its best estimate of the duration of such Force Majeure; and (iii) shall exert all commercially reasonable efforts, at the affected Party’s sole cost and expense, to eliminate, cure, or overcome any such causes and to resume performance of its obligations as soon as possible.
If any provision or covenant in the Agreements is unenforceable, invalid, or contrary to mandatory law, such provision or covenant will be ineffective to the extent of such unenforceability, invalidity, or illegality. The remainder of such provision or covenant, and any other provision or covenant in the Agreements, will remain valid, legal, and enforceable.
This PSA, as supplemented by the SLA, TSA, schedules and including the preamble and recitals, constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this PSA and supersedes all previous letters, representations, warranties, or agreements, express or implied, between the Parties relating to the subject matter of this PSA. Eon Dental shall have the right to modify or amend any of the Agreements from time to time. When Eon Dental makes a change to any of the Agreements, the Purchaser’s continued use of the Products will constitute an acceptance of any modification or amendment to such changes.
Eon Dental and the Purchaser agree that in the event of any conflict between the terms and conditions of a Case Order, invoice for Products, or other subsequent writing between the Parties and the terms and conditions of the Agreements, the terms of the Agreements shall prevail. Each Party hereby represents and warrants that it has the full right, power, and authority, to enter into this PSA and any of the other Agreements to carry out the transactions contemplated hereby and thereby. Each Party hereby represents and warrants that:
(i)
It is fully capable to carry out all obligations herein described under the applicable laws; and
No waiver or consent of any Person is required (or if required, has or will be timely obtained) for the proper and legal execution, delivery, and performance of obligations by the Party under any of the Agreements.
(ii)
Nothing contained in any of the Agreements will be construed as to: (i) create a labor relationship, (ii) constitute the Parties (or any of their Affiliates) as partners, joint ventures, co-owners or otherwise participants in a joint undertaking, (iii) give a Party (or any of its Affiliates) the power to direct and control the day-to-day activities of the other Party or its Affiliates; (iv) cause either Party or its Affiliates to be held liable for the contractual obligations of the other Party or its Affiliates; or (v) allow a Party (or any of its Affiliates) to create or assume any obligation on behalf of the other Party or any of its Affiliates for any purpose whatsoever. Unless explicitly stated otherwise in any of the Agreements, a Party’s obligations under any of the Agreements are the sole responsibility of the Party. If a Party uses any of its Affiliates or a third-party Person to perform the Party’s obligations under the Agreements, the Party shall remain wholly liable and responsible for all actions of such Affiliate or third-party Person, as if the Party had taken such actions itself under the Agreements.
Termination of any of the Agreements will not affect survival of the provisions regarding either Party’s treatment of Confidential Information, Intellectual Property Rights, provisions relating to the payments of amounts due that have accrued prior to termination, indemnity provisions, provisions limiting or disclaiming the Party's liability, provisions on termination, or the data privacy provisions, which provisions will survive such termination.
26.1.1
All of the Agreements shall be governed by, and construed and interpreted in accordance with the laws of Belgium.
26.1.2
Any dispute, controversy or claim whatsoever arising out of, in relation to or in connection with any the Agreements, or the breach, termination or invalidity thereof, that cannot be settled amicably, shall be finally settled in the courts of Antwerp, section Antwerp.
26.1.3
Each Party acknowledges that a breach by the other Party of any of the Agreements may cause the non-breaching Party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach, the non-breaching Party may be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching Party may be entitled at law or in equity. Such remedies will not be deemed to be exclusive but will be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in the Agreements to the contrary.
