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Terms and Conditions
Applicable Conditions and Scope of Application

1. Unless otherwise expressly agreed upon in writing, our products and services are exclusively subject to the following General Terms and Conditions of Sale.

We expressly reject any different or additional terms or conditions contained in any documents submitted by Buyer. Our provision of credit, acceptance of any purchase order and/or sale of any goods are expressly made conditional on Buyer’s assert to these terms and conditions.

2. Advice, Information and Documentation

Any advice and information given on our products is based on our experience to date. The data, in particular concerning the possibilities of use of our products, are average data only and do not represent an express or implied warranty of any kind.

Any document and object, such as drawings, samples or models, made available to the Buyer in connections with our offers, remain our property. We are the holder of the copyrights and related protective rights under domestic and international copyright laws regarding these documents and objects. The Buyer is not entitled to disclose to third parties the documents made available without our prior written consent.

3. Conclusion and Content of Contract

Our offers are not binding unless we include a binding term of validity. A valid and binding contract shall be concluded only upon either our written confirmation of the Buyer’s order or, where no such confirmation is given, the delivery of goods. The contents of the contract shall be determined by our written confirmation, in case of delivery without prior confirmation, our delivery note shall be deemed as being such written confirmation. Oral statements are not binding under any circumstances.

Subject to standard manufacturing variations, we warrant that the goods furnished hereunder shall meet specifications set forth on the face of our applicable sales order confirmation. We make no other warranties, express of implied, and specifically exclude all warranties of merchantability and 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 shall also apply to data concerning the result of analyses.

4. Delivery and Passing of Risk

Where delivery dates or times are not expressly set forth with time is of the essence in our written order confirmation such dates and times are to be regarded as estimates. In the event we do not deliver the products within two (2) weeks after expiration of the delivery estimate not resulting for a force majeure event, Buyer may cancel its order. Time periods for delivery do not begin to run until the Buyer has procured the documents he may be obliged to provide, e.g. approval or release of product drawings, or until Buyer has paid an advance payment in case such payment has been agreed upon in writing.

In case of default or impossibility of performance we are liable for claims for damages exclusively pursuant to the provisions in clause 7 below.

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, irrespective 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 obstruction and for a reasonable period thereafter to reinstate production. If it is foreseeable that the inability to perform will be of a permanent nature, we are entitled to refuse the delivery in whole or in part. In that case the Buyer is not entitled to any damage claims.

We are entitled to make partial deliveries. Place of performance is always Savannah, Georgia.

If delivery upon receipt is agreed upon, the respective requests much be placed within three months after conclusion of the contract, unless otherwise agreed upon in writing. In case the Buyer does not request delivery within the specified time, clause 4.6 shall apply accordingly.

If the Buyer refuses acceptance of the goods or if shipment is delayed for reasons for which the Buyer is responsible, the risk shall pass when his default in acceptance commences. Any storage costs incurred after the risk has passed shall be payable by the Buyer. We are entitled to charge either a lump sum of 0.5% of the invoice amount per month as storage costs or the damage actually suffered, whichever is greater. In addition, if Buyer fails to accept the goods within a period of 14 days, we are entitled to rescind the contract or claim damages for non-fulfillment.

5. Prices, Payments

Our prices include standard packaging and do not include sales or use tax. This will be added to the prices at the rate in force at the time of supply.

Any shipping expenses shall be borne by the Buyer, unless otherwise agreed upon in writing, at the freight rates, customs tariffs and any further duties applicable at the time of delivery.

The Buyer is not entitled to make any deductions from amounts due to us due any counterclaims or to exercise a right of retention, unless the counterclaims or the right of retention have been acknowledged by us in writing or declared valid with final effect in a judicial proceeding.

All sales of Diversident, LLC products are due upon receipt. Cash discounts will not be offered for early payment. Buyer has to pay off invoice not statement.

Accounts with open invoices 30 days beyond the above mentioned terms (60 days from the date of invoice) will receive a written notification. Accounts with open invoices 60 days beyond the above mentioned terms (90 days from the date of the invoice) must be brought current prior to receiving additional shipments. Accounts with open invoices 90 days beyond the original due date (120 days from the date of invoice) are subject to revocation of open credit status and are subject to collection proceedings. Accounts with these past due invoices will be subject to 20% penalty per outstanding invoice.

Payment options are as follows:

Check – Mail of self-addressed envelope provided to the Buyer with the invoice coupon. To ensure fast processing, Buyer has to reference account number and the invoice being paid. Non-Sufficient Fund (NSF) – The charge for non-sufficient fund (NSF) checks is $30.00 per check. This applies to any check written to Diversident, LLC. If this happens multiple times Diversident, LLC reserves the right to refuse payment by check.

ACH-Draft – Buyers has to complete an ACH Authorization form and the funds will be withdrawn from Buyer’s bank account.

Credit Card – Two Options:

Call the Accounting Department at 1-888-922-0188

Complete a Credit Card Authorization and permanently have your credit card on file for future purchases.

All amounts payable to us become due immediately if the Buyer does not comply with its contractual obligations regardless of the term of any bill of exchange we may have accepted as conditional payment. In the event of default, bill of exchange protest or suspension of payments we are entitled to demand immediate payment of our claims, including claims of circulating bills of exchange, regardless of any due dates agreed upon. This shall also apply in the event that circumstances become known to us which in our opinion make the creditworthiness or the financial standing of the Buyer doubtful, even if the circumstances have existed at the time the order was placed but were not known to us at that time. Notwithstanding further rights, we shall be entitled in all above mentioned cases to make outstanding deliveries against advance payment or security only, and, if no advance payment is made or security granted within a two week period, to rescind the contract without fixing any further time period for compliance. In addition to the foregoing, we shall be entitled to reasonable attorney fees incurred in connection with the enforcement of our rights hereunder.

The Buyer is not entitled to assign any claims to third parties arising out of or in connection with this contract without our prior written consent.

All taxes of any kind levied by any federal, state, municipal or other governmental authority, which tax we are required to collect or pay with respect to the production, sale, or shipment of goods sold to Buyer shall be the responsibility of Buyer. Buyer agrees to pay all such taxes and further agrees to reimburse us for any such payments made by us.

6.Purchase Money Security Interest

Buyer hereby grants us a purchase-money interest under 36-9-103 of the Georgia UCC in the goods purchased from us and the proceeds thereof (collectively, the “Collateral”). Buyer hereby irrevocably authorizes us to file UCC-1 financing statements to perfect the security interest granted herein and any extensions or amendments thereto.

The Buyer shall hold the Collateral in safe custody. We shall have the right at any time after reasonable notice to inspect the Collateral. The Buyer 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 interference by all legal means.

The Buyer is entitled to resell the Collateral exclusively within the ordinary course of business according to its usual conditions.

The Buyer is only authorized to assign its rights arising out of the sale of the Collateral to third parties with our prior written consent.

If the Buyer does not fulfill its obligations under this or any other contract entered into with us or if, in our opinion, Buyer’s credit becomes impaired, we may suspend performance 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 Buyer’s credit for future deliveries. If we suspend performance and later proceed with such order, we shall be entitled to such extension of time for performance as is necessitated by the suspension. We shall also have the right to rescind the contract. In such case, Buyer upon receipt of our written notice shall surrender the Collateral and Buyer hereby authorizes us to enter the premises of Buyer to retake possession of the Collateral at the expense of the Buyer and to sell it by private sale or public auction at the highest price possible, notwithstanding the Buyer’s financial obligations and other duties; after deduction of the costs of such sale the proceeds thereof shall be used to reduce the Buyer’s debt; any remaining surplus shall be made available to the Buyer.

 

Upon our request the Buyer shall provide us with the names of the debtors of all claims relating to the Collateral to enable us to disclose our rights in and to the claim for payment and collect these claims; the Buyer shall, after an event of default, forward to us any payments it receives on claims constituting Collateral immediately upon receipt if and as soon as our claims against the Buyer become due.

7. Liability

The Buyer shall examine the goods immediately upon receipt at the place of destination, also if models or samples were delivered in advance. The goods are to be particularly examined with respect to their external quality. If boxes, cartons or other containers are delivered, samples have to be taken at random. The goods shall be deemed to have been accepted without any defects, unless the Buyer notifies 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 the address on the front side hereof.

Buyer has an affirmative obligation to notify the freight forwarder of any goods damaged in transit.

No claim for damages for goods 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 allowed an opportunity to inspect them. Goods for which damages are claimed shall not be returned, repaired, or discarded without our written consent. BUYER’S EXCLUSIVE REMEDY AGAINST US, AND OUR SOLE OBLIGATION, FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, 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 HAVE ANY LIABILITY FOR DAMAGES IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE GOODS SOLD HEREUNDER, NOR SHALL WE HAVE ANY LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.

Warranty claims of a commercial businessman shall become time-barred one (1) year after delivery of the goods unless Buyer can prove our fraudulent intent.

Agreements between the Buyer and its customers that contemplate anything beyond the warranty set forth herein shall have no affect to our disadvantage or be binding on us in any way.

8. Return and Refund Policy

If the Buyer wants to return a product, he has to call 1-888-922-0188 to obtain a Return Material Authorization (RMA) number. Products must be returned within 21 calendar days from the issuance date of the RMA Number. If the Buyer returns items using a pre-paid label sent by Diversident, LLC, the cost of shipping is deducted from the Buyer’s refund (unless the return is result of Diversident, LLC’s error). Return shipping charges should be paid by the Buyer unless instructed in writing by the Sales Department. Shipping costs charged on the original sales order will only be refunded if the entire order is a result of Diversident LLC’s error.

Diversident, LLC accepts items within 30 calendar days of the invoice date for a full refund. Diversident LLC will credit the Buyer’s refund to the account for use on future purchases. All products must be returned in the original, unmarked packaging, which is in resalable condition. If returned after 30 days, Diversident, LLC will assess a 25% restocking fee. Discontinued items cannot be returned after 30 days. Customized items cannot be returned under any circumstances unless such products are defective. All items returned after 90 days cannot be accepted. Handpieces in unopened packages will be credited only if returned no later than 30 days from the date of invoice. Used handpieces or handpieces in opened packages cannot be returned for credit.

Diversident, LLC recommends that the Buyer sends the return in a padded envelope or original shipping box, uses a traceable shipment method, and insures the package for safe return to Diversident, LLC so that the Buyer is completely protected if the shipment is lost or damaged during shipping, if the Buyer chooses not to use a traceable shipping method or insures or declares the full value of the product, the Buyer will be responsible for any loss or damage to the product in transit.

9. Applicable Law/Jurisdiction

The relations between us and the Buyer are governed by the laws of the State of Georgia, 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.

Place of jurisdiction for all disputes arising out of or in connection with the contract shall be in a state of federal court situated in Savannah, Georgia, Buyer hereby irrevocably consents to the personal jurisdiction of such courts. Buyer waives any objection based on forum non conveniens or any objection to venue of any such action.

10. Concluding Provisions

Any alterations and amendments to the contract, including this cause, must be made in writing and signed in order to be valid. This shall also apply to any supplementary and additional agreements.

If a provision herein is or becomes partly or completely invalid, the invalidity of this provision shall not affect the validity of the remaining provisions of this contract. The invalid provision shall be replaced by a valid provision reflecting in an economic respect as closely as legally possible the objectives of the invalid provision. This applies also to issues the parties intended but failed to address.

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