Last Modified: 30 October 2018
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS AND CONDITIONS (THESE “TERMS”) APPLY TO THE PURCHASE AND SALE OF SIX MONTH SMILES’ PRODUCTS AND SERVICES, INCLUDING SALES MADE THROUGH OUR WEBSITES https://www.sixmonthsmiles.com AND/OR http://www.6monthsmiles.com (COLLECTIVELY, THE “SITE”). BY PLACING AN ORDER FOR OUR PRODUCTS OR SERVICES OR BY CLICKING TO ACCEPT OR AGREE TO THESE TERMS WHEN THAT OPTION IS MADE AVAILABLE TO YOU ON OUR SITE, YOU ACCEPT AND ARE BOUND BY THESE TERMS. THESE TERMS ARE ENTERED BY AND BETWEEN YOU (“PROVIDER” OR YOU”) AND SMS OPCO, LLC (“6MS”, “WE”, “OUR” AND “US”).
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM 6MS IF YOU (A) DO NOT AGREE TO THESE TERMS, OR (B) TO THE EXTENT YOU ARE PURCHASING PRODUCTS OR SERVICES FROM OUR SITE, ARE PROHIBITED FROM ACCESSING OR USING THE SITE OR ANY OF THE SITE’S CONTENTS, PRODUCTS OR SERVICES BY APPLICABLE LAW.
THESE TERMS ARE SUBJECT TO CHANGE WITHOUT PRIOR WRITTEN NOTICE AT ANY TIME, IN OUR SOLE DISCRETION. THE LATEST VERSION OF THESE TERMS WILL BE POSTED ON OUR SITE, AND YOU SHOULD REVIEW THESE TERMS PRIOR TO PURCHASING ANY PRODUCT OR SERVICES.
CONFIDEX™ is a computerized approximation of desired tooth movement for a specific patient, prepared by a specially trained orthodontist. CONFIDEX™ software results are simulated approximations based on the approved CONFIDEX™ treatment plan and actual clinical results may vary. Provider must review the CONFIDEX™ treatment plans thoroughly. Provider’s approval of the customized CONFIDEX™ treatment plan is considered a prescription to 6MS and 6MS’ final authorization to manufacture the Patient Tray Kit. 6MS recommends that Provider delays extraction of any teeth until after approval of the CONFIDEX™ treatment plan, if medically feasible. CONFIDEX™ includes each of the following:
Photo: Photo simulations are a computer generated-simulated image of the proposed final alignment of the teeth and not a guarantee of the treatment outcome. The actual results of treatment may differ from the photo simulation.
3D Video: The CONFIDEX™ treatment video is an animated 3D representation of the patient’s proposed treatment plan and projected outcome. It is a tool to be used by Provider as part of Provider’s complete diagnosis and treatment of the patient. Results that may be achieved by using a portion or all of the CONFIDEX™ treatment plan will depend on Provider’s own examination and diagnosis of the particulars of the individual case.
Patient Tray Kit: A Patient Tray Kit as outlined in Section 1.a is included with a CONFIDEX™ Case. Additional materials needed as advised in the treatment plan will need to be purchased separately.
Unless otherwise agreed to by 6MS, 6MS’ treatment options and Patient Tray Kits are only available to currently licensed dentists and orthodontists who have attended a Level I 6MS Seminar course within the prior 24 months or who have attended a 6MS seminar course more than 24 months ago and have submitted a certain level of treatments within the prior 24 months determined by 6MS. 6MS treatment options are only available to dentists and orthodontists who have maintained their good customer standing with 6MS.6MS reserves the right to change the seminar location, instructor(s) or pricing at any time without notice.
If Provider requires further guidance and support for treating a case or selecting possible 6MS cases, services are available through independent third parties, including 6MS Clinical Instructors and Mentors via the Six Month Smiles Forum (the “Forum”). If third party treatment planning services are used, the sharing of any records or medical information must adhere to, and it is Provider’s responsibility to ensure compliance with, the Six Month Smiles Forum Terms and Conditions and all applicable privacy and health laws and other relevant laws and regulations in the jurisdiction(s) in which Provider is licensed and practices, including, where applicable, the Health Insurance Portability and Accountability Act of 1996 and the General Data Protection Regulation (“GDPR”), and all amendments thereto. Provider’s compliance obligations for sharing patient data as part of third party treatment planning services include, where required by applicable law, patient consent or, where permissible, an alternative, legally valid mechanism by which to share patient data.
6MS assumes no liability or responsibility for treatment plans developed with a third party or the associated outcome of such third-party treatment planning services. Additionally, 6MS makes no warranty, guarantee, or representation as to the accuracy or sufficiency of the information or advice posted in the Forum, and 6MS assumes no responsibility or liability regarding the use or misuse of such information or advice. Any advice, pertaining to patient treatment or otherwise, given by a Clinical Instructor or Mentor is the personal opinion of that Clinical Instructor or Mentor and has not been reviewed, confirmed, or approved by 6MS. It is Provider’s responsibility to ensure that information or advice obtained through the Forum is correct, proper, and suitable either in general or for a particular patient. 6MS does not make any representations regarding the level of experience, competency, expertise, or qualifications of Clinical Instructor or Mentor who posts information or advice on the Forum and 6MS presents such information and advice only as a convenience to users of the Forum.
Provider shall purchase the products and services from 6MS at the prices set forth in the applicable purchase order, or, in the case of seminar fees, set forth in the applicable registration documentation. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Provider. Provider shall be responsible for all such charges, costs and taxes; provided, that, Provider shall not be responsible for any taxes imposed on, or with respect to, 6MS’ income, revenues, gross receipts, personnel or real or personal property or other assets. Additional fees may apply if a shipping method is requested other than 6MS’ standard shipping procedure.
Unless otherwise agreed to by 6MS in writing, Provider shall pay 6MS for all products using a credit card at the time of purchase, and Provider must maintain a valid and current credit card on file for purposes of payment. If 6MS separately agrees with Provider for extended billing terms, Provider will receive invoices in paper and/or electronic format depending on the preferences communicated to 6MS. The invoice date is the day the Patient Tray Kit or other product is shipped to Provider and payment will be due on the date indicated on the invoice. Late payments may result in delays to future shipments, or in extreme delinquencies, collection activities.
Provider shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Provider shall reimburse 6MS for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which 6MS does not waive by the exercise of any rights hereunder), 6MS shall be entitled to suspend the delivery of any products if Provider fails to pay any amounts when due hereunder and such failure continues for ten days following written notice thereof.
6MS does not accept payments from patients, including payments in the patient’s name forwarded by Provider. When Provider approves a CONFIDEX™ treatment plan or submits an order for a Patient Tray Kit, Provider is the party responsible for payment to 6MS. Prices and other terms and conditions are subject to change by 6MS without prior notice (but will not be varied with respect to a particular order once such order has been placed).
Unless otherwise agreed to by 6MS in writing, all fees and costs will be charged in U.S. dollars, and 6MS will not be responsible for any foreign currency exchange fees.
Patient Tray Kits are manufactured and will be shipped to Provider within approximately ten business days of receipt of the impressions or approval of the CONFIDEX™ treatment plan if elected. 6MS will make reasonable efforts to contact Provider within four days of order receipt if the order submission is not complete or all materials are not received. Incomplete order submissions will result in delays in manufacturing and shipping of products. Provider is deemed to have taken possession of shipped products immediately when they leave the control of 6MS, and Provider assumes all responsibility for damage to products in transit. Upon shipment, all Patient Tray Kits or retainers are non-returnable and fees non-refundable (other than where such items are damaged or defective due to a fault in manufacturing or handling by 6MS).
Provider is responsible for securing all consent from patients required by law in order for records to be disclosed to 6MS in accordance with these Terms. For the avoidance of doubt, such consent should include approval for transmission of records to a jurisdiction outside of the United States or the European Economic Area.
6MS will comply with the applicable requirements of relevant laws, which may include obligations to provide personal information that 6MS holds about a patient to such patient on request by such patient. When 6MS processes personal data from EU patients, 6MS will comply with the EU patient’s additional data subject rights, including the rights of the patient over his or her data to:
Subject to applicable law, records submitted to 6MS become the property of 6MS and will not be returned to Provider. For cases shipped to 6MS from a US address, 6MS may choose to return material to the doctor. Records such as impressions and intra-oral scans require inspection, and 6MS may deem such records unacceptable. If deemed unacceptable, 6MS may request replacement records. 6MS will maintain physical materials such as impressions and study models only for a short time period, until they are discarded and/or archived at the discretion of 6MS.
Subject to applicable law, Provider authorizes 6MS to use records, including but not limited to, impressions and intra-oral scans, patient information, radiographs (x-rays), photographs and plaster or stone models for internal use, purposes of orthodontic or dental consultations, education and research purposes, publication in professional journals or use in professional collateral materials, provided such use does not include disclosure of a specific name, patient ID, address, or other personal information that would have the effect of specifically identifying Provider or the patient, unless the appropriate consents are obtained.
7. Patient Tray Kit and Ancillary Products Limited Warranty
Each party acknowledges that local, state and federal laws may imply certain conditions and warranties into these Terms and confer certain rights and remedies on Provider that cannot be excluded or modified (“Rights”). Nothing in this Section or otherwise in these Terms excludes or modifies any of those rights if to do so would contravene such rights or make any part of these Terms void.
6MS WARRANTS THAT ALL PATIENT TRAY KITS AND THEIR CONTENTS, RETAINERS, TOOLS AND ANCILLARY SUPPLIES ARE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP WHEN USED PROPERLY IN THE APPLICATIONS FOR WHICH THEY WERE INTENDED.
EXCEPT AS PROVIDED IN THIS SECTION, 6MS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO 6MS TREATMENT OPTIONS AND/OR PRODUCTS OR SERVICES OR THE OUTCOME OF TREATMENT WITH SUCH TREATMENT OPTIONS AND/OR PRODUCTS OR SERVICE. SIX MONTHS SMILES SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ANY OTHER IMPLIED WARRANTIES.
Where 6MS (i) cannot exclude any express or implied condition or warranty or Rights, or (ii) the Patient Tray Kit fails to conform to the warranty in this Section, then 6MS’ sole and exclusive liability (other than in circumstances where by law, liability cannot be limited) and Provider’s sole and exclusive remedy is, at the sole discretion of 6MS, (a) to repair or replace the products or (b) to pay the cost of having those products repaired or replaced.
No representative, employee or agent of 6MS is authorized to incur warranty obligations on behalf of 6MS or modify the limitations set forth herein.
THESE WARRANTIES ARE VOID IF THE PATIENT TRAY KIT, RETAINERS, OR OTHER PRODUCTS OR SERVICES HAVE BEEN MISUSED, MODIFIED OR HAVE BEEN USED IN COMBINATION WITH OTHER THIRD-PARTY PRODUCTS. NO WARRANTY IS MADE REGARDING THE OUTCOME OF ANY TREATMENT USING THE PRODUCTS OR ANY COMBINATION OF 6MS PRODUCTS OR SERVICES WITH THIRD-PARTY PRODUCTS.
Returns, complaints, or other feedback on 6MS products or services should be directed to the Customer Experience Department at 1-866-957-7645 or firstname.lastname@example.org for authorization to return for inspection and determination of replacement.
8. Provider Responsibility and Product Usage
6MS is not a provider of medical, dental or health care services and does not and cannot practice medicine, dentistry or give medical advice. 6MS offers services containing factual advice and documentation for use by Provider in creating or evaluating the effectiveness of a proposed treatment plan and/or use of a Patient Tray Kit. The services are not a substitute for dental or medical advice, and Provider has the sole responsibility for evaluating whether a treatment plan is appropriate for a specific patient. Following digital treatment planning guidance does not guarantee a successful or safe outcome. Individual results may vary and conditions may become apparent that warrant additional or alternative treatment that deviate from the treatment plan. In some cases, additional dental procedures may be necessary to complete treatment. 6MS does not make any guarantees or assurances concerning the outcome of any treatment and assumes no liability or responsibility for treatment plans. It is Provider’s responsibility to adhere to relevant state, national, and local laws and regulations and any professional obligations regarding patient care or otherwise.
In certain, but rare, circumstances, 6MS may not be able to adhere to the specifications of a treatment guidance plan or Provider prescription. In those situations, 6MS will not initiate, edit or modify a patient’s treatment guidance plan nor modify Provider’s prescription unless otherwise noted by 6MS on a Lab Deviation Form, which will be returned to Provider with the completed case.
6MS may, from time to time, provide information or recommendations to Provider or Provider’s personnel; however, 6MS will not control or pressure Provider in the exercise of Provider’s professional judgment. Decisions about treatment of a patient are to be made by Provider, and Provider is solely responsible for review and approval of treatment plans to determine whether 6MS products and/or treatment options are appropriate for a specific patient, use or application, diagnosis and/or treatment of each patient, and the resulting outcome. Some 6MS products and/or treatment options offerings incorporate default or preset treatment staging protocols, which are accepted by the Provider as part of Provider’s prescription when submitting an order to which these protocols apply. Information about treatment staging protocols can be accessed via the 6MS doctor site at time of order submission. It is within Provider’s sole discretion to implement any of 6MS’ recommendations, including but not limited to proceeding with order submission. Each order is subject to acceptance by 6MS, and will become a binding contract only if accepted by 6MS.
9. Terms and Conditions Addendum
There Terms are supplemented by the Terms and Conditions Addendum (“Addendum”), which is subject to and shall incorporate by reference the provisions of these Terms. Further, the Addendum is incorporated into and becomes part of the Terms and is effective upon execution of the Terms. The Addendum shall remain in force for the duration of these Terms.
The Addendum describes Provider’s obligations for participating in the LendingClub Patient Solutions Program. By accepting these Terms, Provider hereby accepts and agrees to comply with the terms of the Addendum as incorporated herein. Provider further acknowledges and agrees that failure to comply with the terms of the Addendum will constitute a breach of these Terms.
In the case of a conflict between or among any provisions in these Terms and the Addendum, the provisions of the Addendum shall control with respect to such conflict.
10. Additional Terms
OTHER THAN LIABILITY REFERRED TO IN THE FOLLOWING PARAGRAPH, IN NO EVENT WILL 6MS TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY THEORY OF LAW EXCEED THE SUM OF FEES PAID OR PAYABLE BY DOCTOR FOR SUCH 6MS PRODUCT OR SERVICES. THE EXISTENCE OF ONE OR MORE CLAIMS SHALL NOT EXPAND SUCH LIMIT. IN NO EVENT WILL 6MS, ITS LICENSORS OR SUPPLIERS BE LIABLE TO DOCTOR OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHER CAUSE OR THEORY WHATSOEVER (INCLUDING NEGLIGENCE, DELAY IN DELIVERY, INJURY TO REPUTATION, GOOD WILL, ETC.), WHETHER OR NOT 6MS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL 6MS, OR ANY OF ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
The following claims against 6MS and its employees, agents, contractors, officers or directors are hereby waived by Provider: (i) claims based on the failure of 6MS products to achieve a successful or desirable outcome; and (ii) injury to a patient, either alone or in combination with other treatment appliances.
Provider agrees to indemnify, defend and hold harmless 6MS and its past, present and future officers, directors, members, employees, agents, assigns, attorneys, contractors, service providers, licensors, insurers and successors in interest against and from any and all claims, causes of action, damages, injuries, debts, liabilities, losses, obligations, payments, costs, expenses, demands, and other requests for relief, compensation or remuneration of any kind, description or nature whatsoever (collectively, “losses”), related to, pertaining to or arising from:
i) Provider’s breach of or failure to abide by any term of these Terms;
ii) Any incorrect information provided to 6MS, including information generated or provided via CONFIDEX™, or any failure to timely provide 6MS with any information it requests from Provider or Provider’s dental practice;
iii) Any incorrect information, including specific case or treatment plan opinions or recommendations, provided by other Providers and doctors via the Forum; or
iv) 6MS’ provision of or failure to provide products or services to Provider, unless such provision of or failure to provide such products or services was due to 6MS’ negligence or recklessness.
13. Confidential Information and Privacy
All non-public, confidential or proprietary information of 6MS, including but not limited to specifications, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by 6MS to Provider, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by 6MS in writing. Upon 6MS’ request, Provider shall promptly return all documents and other materials received from 6MS. 6MS will be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Provider at the time of disclosure; or (c) rightfully obtained by Provider on a non-confidential basis from a third party.
These Terms and Conditions incorporate the 6MS Data Processing Agreement (DPA) when the GDPR applies to Provider use of the 6MS services to process patient data (as defined in the DPA). 6MS may only change the DPA when required to do so to comply with applicable laws, regulations, court order, or guidance issued by a government regulator or agency, where such change is expressly permitted by the DPA or where such change is commercially reasonable, does not degrade of the overall security or privacy protections of 6MS, does not change the data processing nature, scope, or instructions contained in the DPA, or does not otherwise have a material adverse impact on Provider rights under the DPA.
14. Trademark Usage
Subject to these Terms, 6MS grants to Provider limited and personal (non-transferable or sub-licensable) permission to use the 6MS trademark and certain other 6MS trademarks identified and approved for use in marketing 6MS products and/or services. 6MS’ trademarks may be used by Provider only in connection with Provider’s provision of 6MS products. Any use of 6MS’ trademarks by Provider and any associated goodwill inures to the benefit of 6MS, and Provider acknowledges that 6MS remains the sole owner of all right, title and interest in the 6MS trademarks. 6MS has the right to monitor the quality of Provider’s services provided in connection with 6MS trademarks and may, in 6MS’ sole discretion, terminate Provider’s permission to use 6MS trademarks at any time. Provider must abide by guidelines set forth in the 6MS Trademark License Agreement.
6MS may, but is not required, to include Provider in co-marketing or lead generating tools such as the “Find a Doctor” web-based locator. 6MS retains sole discretion over all aspects of the “Find a Doctor” web-based locator, including but not limited to, inclusion, designations, and order of placement and removal of doctors. By the way of these Terms, Provider authorizes 6MS to send programs, training, event, sales and marketing promotions and materials, surveys or other information related to the 6MS products to the Provider’s office via facsimile, email, and other means unless the Provider has indicated otherwise in writing to 6MS.
16. Force Majeure
6MS will not be deemed to be in breach of these Terms for any failure or delay in performance caused by or results from reasons beyond its reasonable control, if 6MS makes reasonable efforts to perform.
17. Governing Law and Jurisdiction
These Terms will be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action or proceeding arising out of or related to these Terms or 6MS products and services will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding; provided, however, upon the election of the parties, the parties may submit any dispute and other matter in question arising out of, or relating to these Terms or the performance thereof, to binding arbitration.
6MS’ products and services that are purchased by Provider under these Terms may only be used by Provider within the country of purchase and may not be exported or re-sold. Provider agrees to comply with all export laws, restrictions, statutes, agreements and regulations of the local government, its agencies, bureaus, and authorities. Provider will not provide, transfer, sell or otherwise make available the product or services or related technology in violation of any such laws. The products and services are for intended use in the country where Provider is licensed to practice and to where the product was shipped, per the request of the Provider, by 6MS.
Products and services purchased from 6MS may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations.
19. Independent Contractors
It is the mutual intent of the parties to these Terms that Provider, Provider’s employees, agents, and other representatives are not employees, agents, joint ventures, or partners of 6MS. Nothing contained in these Terms will be interpreted or construed to create or establish an employment relationship between the parties. Neither party is granted any express or implied right or authority by the other party to assume or create any obligation or responsibility on behalf of or in the name of the other party, or to bind the other party in any manner whatsoever.
20. No Waiver
The failure of either party at any time to require performance by the other party of any provision will not affect in any way the full right to require such performance at any time thereafter.
If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, such provision will be changed by the court and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms will remain in full force and effect.
22. Termination and Modification; Survival
6MS reserves the right to cancel these Terms, refuse an order of product or revoke the certification of a Provider for any reason at any time. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms including, but not limited to, the following Sections: Section 8 (Provider Responsibility and Product Usage), Section 11(Liability), Section 12 (Indemnification), Section 13 (Confidential Information and Privacy) and Section 17 (Governing Law), and this Section.
23. Assignment; Third Party
Provider will not assign any of his/her rights or delegate any of his/her obligations under these Terms without the prior written consent of 6MS. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Provider of any of its obligations under these Terms. These Terms are not intended to confer any rights or remedies against 6MS upon any person other than Provider.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (c) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section):
If to Provider, the address provided to 6MS on Provider’s most recent purchase order.
If to 6MS:
6270 Morning Star Drive, Suite 120
The Colony, TX 75056
Attention: President and Chief Executive Officer
25. Entire Agreement
These Terms, together with 6MS’ Additional Terms, Addendum, and DPA, and all applicable sales orders, set forth the entire agreement and understanding of the parties with respect to the subject matter covered and supersede all prior letters of intent, agreements, covenants, arrangements, communications, warranties or representations, whether oral or written, by any officer, employee, or representative of 6MS relating thereto. These Terms prevail over any conflicting or additional terms of any quote, order, invoice or other communication.