Last Updated February, 2022
These Terms Of Purchase (“General Terms”) apply to all Products and Services (as defined below) purchased through (i) the websites (“Sites”) operated by Benco Dental Supply Co. (“Benco”); or (ii) using Benco invoices or quotes that reference these General Terms, unless customer (“you” or “Customer”) has entered into a separate written agreement with Benco for Products and Services (“Agreement”), in which case such Agreement shall govern. Each Customer purchasing Products and Services pursuant to these General Terms is required to accept the following General Terms.
PLEASE READ THESE GENERAL TERMS. YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREED TO BE BOUND BY TO THESE GENERAL TERMS. IF YOU ENTER INTO THESE GENERAL TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE GENERAL TERMS. BENCO RESERVES THE RIGHT TO CHANGE THE GENERAL TERMS FROM TIME TO TIME AT ITS SOLE DISCRETION. IF BENCO MAKES CHANGES TO THESE GENERAL TERMS, THE UPDATED GENERAL TERMS SHALL APPLY TO ALL PURCHASES AFTER THE EFFECTIVE DATE OF THE UPDATE.
- 1.1. Product. From time to time, you may order dental supplies (“Supplies”) and/or equipment (“Equipment”) (Supplies and Equipment collectively referred to as “Products”) from Benco. Benco will supply such Products in accordance with these General Terms.
- 1.2. Risk of Loss. Title to and risk of loss of the Products will pass to you upon delivery of said Products to the shipping carrier (FOB Shipping Point).
- 1.3. Delivery Timeframes. 1.1.Benco will use commercially reasonable efforts to ship the Products within agreed upon timeframes, but does not guarantee availability or arrival date. Notwithstanding any other delivery terms set forth in these General Terms, Products that are drop shipped directly from the Product manufacturer are subject to the manufacturer’s shipping times and terms.
- 1.4. Small Orders. Benco, in its sole discretion, may charge small order fees (currently $11.95 for orders of less than $225 of Products, but are subject to change). If Benco elects to waive small order fees for you, Benco reserves the right to cease small order waivers upon providing thirty (30) days’ written notice to you.
- 1.5. Expedited Shipping. You may request expedited shipping, which Benco will bill you at prevailing expedited shipping rates. Expedited shipping may not be available for some Products.
- 1.6. Hazardous Materials. You are responsible for and will pay all applicable fees for hazardous materials shipping, including any Carrier surcharges, which Benco will bill you.
- 2.1. Services. Benco will provide the Services for the rates and at the location(s) as agreed upon.
- 2.2. Equipment. Any hardware, software, and/or other equipment associated with the Services may not be owned by Benco, and, to such extent, Benco has no responsibility for the maintenance, repair, proper function, and/or upgrades to any such equipment, except to the extent expressly agreed to the by the parties. You represent that you have all necessary rights, licenses, or other permissions necessary for Benco to provide the Services on any such hardware, software and/or other equipment.
- Service Requests and Dispatch
- 3.1. Customer Cooperation. You will provide Benco all data, information, and cooperation Benco deems necessary for the performance of its Services obligations under these General Terms. You are responsible for providing a safe environment for Benco to provide the Services. If you request equipment maintenance Services from Benco, you must provide Benco’s service technicians reasonable access to the equipment requiring repair. In the event that such access is not granted within one hour of the service technician’s arrival, Benco may reschedule the Service (regardless of whether such Service is an ‘emergency’ request), and all time spent waiting for access to equipment will be billed at Benco’s standard hourly rate.
- 3.2. Service Cancellation. Benco will apply a cancellation fee in the event (i) you cancel Service; or (ii) Benco personnel arrive on your premises and are informed that Service is no longer required.
- 3.3. Indemnification. Benco will have no liability for your failure to comply with its obligations under Section 3.1. You agree to indemnify, defend and hold Benco and its affiliates, and their respective officers, directors, employees, and agents (collectively “Indemnitees”) harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorneys’ fees), arising out of any death, personal injury or property damage that occur during Benco’s provision of the Services and are caused by the breach by you of its obligations under Section 3.1 and/or the acts or omissions of you or its agents or representatives, including, but not limited to, the negligence or willful misconduct of you or your agents or representatives. Your indemnification obligations hereunder do not apply to the extent any claim is caused by the negligence or willful misconduct of Benco or its agents or representatives.
- Limited Warranties and Disclaimers
- 4.1. Benco Products. For Benco private label Products (“Benco Products”) only, Benco represents and warrants for a period of one hundred twenty (120) days from the date of the applicable invoice that the Benco Products will materially conform with all written specifications provided with such Benco Product unless otherwise indicated.
- 4.2. Third Party Products. All third party branded Products (“Third Party Products”) are subject to the original manufacturer’s warranty applicable to the Third Party Products, if any, to the extent such warranties may be passed through to you.
- 4.3. Other Products. All other Products are provided “AS IS” and Benco disclaims all warranties, express or implied, for the Products.
- 4.4. No Other Warranties. The terms contained in Section 5. and the pass-through warranties set forth in Section 4.1 are your sole and exclusive remedy for any warranty claims related to any Products under these General Terms.
- 4.5. Services. Benco warrants that it will provide all Services in a professional manner consistent with industry practices. In the event of any breach of this warranty for Services, your sole and exclusive remedy is for Benco to reperform the Services without additional charge to you.
- 4.6. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4. , BENCO EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERRUPTION OF USE, AND/OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
- Return Policy for Products
- 5.1. Benco Products. You may return any Benco Product(s) that do not materially conform to the warranty provided in Section 1 within one hundred twenty (120) days of the original invoice date. Benco will provide credit or replacement Product(s) for any non-conforming Benco Products returned by you within one hundred twenty (120) days of applicable invoice.
- 5.2. Third Party Products. With respect to any Third Party Products purchased and returned by you under these General Terms, Benco will issue full credit for the purchase price if the Third Party Products can, as determined by Benco, be returned to stock and resold (i.e. the Third Party Product is not a special order, such as large equipment; is in unopened packaging; is safe for resale; is not within sixty (60) days of the expiration date; and, is not broken or defective). For special orders, defective, or otherwise unsaleable Third-Party Products, Benco will provide a credit to you only if the manufacturer approves and issues credit to Benco. Any manufacturer restocking fee will be charged to you. Any Third-Party Product returned after sixty (60) days from the invoice date will be credited less a Benco restocking charge of fifteen percent (15%), in addition to any manufacturer restock charge.
- 5.3. Return Shipping Charges. You will be responsible for shipping charges to return Products, including Benco Products and Third-Party Products, to Benco; provided, however, Benco in its sole discretion and judgement may determine Benco will be responsible for such shipping charges on returns.
- 6.1. Invoices. Unless otherwise provided for by the applicable Site (e.g., online payment accepted), Benco will invoice you for the Products and Services. You will be deemed to accept all invoices submitted unless you notify Benco of any dispute in writing within five (5) days of receipt of such invoice. You agree to pay all shipping, handling and other miscellaneous charges associated with such purchase.
- 6.2. Payment. Unless otherwise provided for by the applicable Site (e.g., online payment accepted), payment for Supplies and Services is due within thirty (30) days after the date of invoice. Payment for Equipment is due upon receipt of an invoice. In the event you accept partial delivery, you shall make the corresponding payment. You will pay one and one-half percent (1.5%) per month interest or such maximum amount as permitted by law, whichever is less, on any past-due invoiced amounts.
- 6.3. Form of Payment. Unless otherwise provided for by the applicable Site (e.g., online payment accepted), You must make all payments via ACH, wire transfer or check.
- 6.4. Taxes. Benco’s fees and charges do not include any sales, use, excise or similar taxes, levies, or duties applicable to the Products and Services (“Taxes”), except taxes based upon Benco’s net income. You are responsible for paying for all such Taxes. If Benco has the legal obligation to pay or collect Taxes for which you are responsible, the appropriate amount must be promptly paid by you unless you provide Benco either a valid and current tax exemption certificate or direct pay certificate, authorized by the appropriate taxing authority.
- 6.5. Updates to Payment Terms; Credit. Benco, in its sole discretion, may modify the payment terms set forth in this Section 6, including the establishment of a credit limit for your purchase of Products and Services. You agree that Benco may conduct credit checks on you. You agree to provide Benco credit and banking references upon Benco’s request. Benco may require personal guarantees from owners, bank standby letters of credit or other such types of instruments to establish a credit limit. Benco reserves the right to limit or refuse credit for any reason at any time. Upon Benco’s request, you will provide the financial records requested by Benco (which may be audited or interim). You acknowledge and agree that Benco has the right to share such financials with third-party service providers, including but not limited to legal and accounting firms and insurance carriers.
- 6.6. Suspension of Services. Benco reserves the right to suspend or discontinue the provision of Products or Services to you in the event past-due amounts are in arrears or if Benco has reason to believe that you will be unable to pay its obligations or in the event you are in violation of any of its obligations under these General Terms.
- 6.7. Enforcement. You agree that all legal fees and other costs incurred to enforce the terms of this Agreement, or to mitigate damages in the event of your breach, are recoverable by Benco as an element of damages.
- Limitations of Liability
- 7.1 IN NO EVENT WILL BENCO BE RESPONSIBLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY DIRECT OR INDIRECT LOSS OF PROFIT, REVENUE, DATA OR GOODWILL, WHETHER INCURRRED OR SUFFERED AS A RESULT OF ANY ERRORS, DEFECTS OR NON-FUNCTIONING OF THE PRODUCTS OR SERVICES OR OTHERWISE, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF BENCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- 7.2. NOTWITHSTANDING ANYTHING CONTAINED IN THESE GENERAL TERMS TO THE CONTRARY, THE SOLE AND EXCLUSIVE REMEDY OF YOU IN ANY SITUATION, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, IS LIMITED TO YOUR ACTUAL AND DIRECT DAMAGES, WHICH IN NO EVENT WILL EXCEED THE AMOUNTS PAID BY YOU TO BENCO FOR THE APPLICABLE PRODUCTS OR SERVICES WHICH GAVE RISE TO THE LIABILITY.
Each Party (“Disclosing Party”) may provide the other Party (“Receiving Party”) with proprietary and confidential information of the Disclosing Party (collectively “Confidential Information”) which includes, but is not limited to, product information, technical data, and pricing information. Receiving Party agrees that it will use the Confidential Information of the Disclosing Party only as required to exercise its rights and obligations pursuant to these General Terms and will not disclose the Confidential Information of the Disclosing Party during or after the termination of these General Terms to any third party without prior written approval from Disclosing Party. Receiving Party will return all Confidential Information of Disclosing Party to Disclosing Party upon demand and, in any event, upon termination of General Terms.
- 9.1. Entire Agreement. Other than if the parties have entered into an Agreement, which shall govern, these General Terms comprise the entire agreement and understanding of the parties concerning the subject matter herein and replace any and all previous agreements, understandings, representations, discussions or offers. No modification to these General Terms is effective unless reduced to writing and executed by both parties.
- 9.2. No Waiver. A waiver by either party of any of the terms or conditions of these General Terms at any time will not be deemed or construed to be a waiver of such term or condition for the future or of any subsequent breach of these General Terms. The failure to enforce a particular provision of these General Terms does not constitute a waiver of such provision or otherwise prejudice a party’s right to enforce such provision at a later time. Each party’s rights in these General Terms are cumulative and are in addition to all other rights and remedies available to the parties, except as otherwise expressly limited by these General Terms.
- 9.3. No Third Party Beneficiaries. These General Terms are entered into solely for the mutual benefit of the parties hereto and no benefits, rights, duties, or obligations are intended or created as to any third parties.
- 9.4. Governing Law and Venue. These General Terms and all matters collateral hereto are governed by the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. All suits, actions, or other proceedings arising out of or relating to these General Terms, or the subject matter thereof must be brought only in Luzerne County, Pennsylvania. You hereby consent to the exclusive jurisdiction of the state and Federal courts sitting in Luzerne County, Pennsylvania.
- 9.5. Severability. In the event any provision of these General Terms is found to be invalid or unenforceable, the parties hereby agree that the court must enforce such provision to the extent permitted by law and, to the extent such provision is not enforceable, must enforce the remainder of these General Terms as if such provision were not included herein.
- 9.6. Force Majeure. Benco will not be liable for delays and/or defaults in its performance due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing, any acts of God or of the public enemy; fire or explosion; flood; stability or availability of the Internet; the elements; telecommunication system failure; war; technology attacks, acts of terrorism; riots; embargoes; pandemic or epidemic; quarantine; viruses; strikes; lockouts; disputes with workmen or other labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing.
- 9.7. Regulatory. Benco will not discriminate against any employee or applicant because of race, color, religion, sex, or national origin. Benco will take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion sex or national origin. Benco Dental Supply Co. is an authorized distributor of pharmaceuticals under the Drug Supply Chain Security Act (the “Act’) Benco ensures that all covered pharmaceuticals are obtained from vendors who are also authorized under the act, and which have provided Benco with the transaction information required under the Act.
- 9.8. Effect of Termination. Upon expiration or termination of these General Terms, all amounts due hereunder will become immediately due and payable by you to Benco. All provisions of these General Terms which by their nature should survive termination will survive termination.
- 9.9. Assignment. Neither these General Terms, nor any of the rights or obligations under these General Terms, may be assigned by you without the prior written consent of Benco. Any attempted assignment, delegation or transfer without the necessary approval will be void. Benco may assign these General Terms in whole or in part, in connection with a merger of Benco or its affiliates, or in connection with, the transfer of all or substantially all of Benco’s assets, or the assets related to the Benco line of business as to which these General Terms relates, or to any affiliate of Benco. Notwithstanding the foregoing, these General Terms will bind and inure to the benefit of the parties hereto and their respective successors, transferees, and assigns.
- 9.10. Notice. Where notice is required to be provided to a party under this these General Terms, such notice must be in writing and may be in person, sent by U.S. mail or by a nationally recognized overnight courier. Notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by other overnight courier, or upon personal delivery. Notice shall be addressed to you at the address you provided to Benco (or as may be directed by a party in the future by written notice) and to Benco at the following address:
Attention: General Counsel
Benco Dental Supply Co.
295 CenterPoint Boulevard
Pittston, PA 18640
- 9.11. Relationship of the Parties. This these General Terms does not, and should not be construed to, create a joint venture, partnership, or a relationship of employment between Benco and you. Benco is acting as an independent contractor for the provision of all Services under this these General Terms.