This Distribution Agreement (the “Agreement”) governs the purchase and distribution of a certain double-LED dental examination light as provided by ONVI III, LLC (“ONVI”). This Agreement is entered into by and between ONVI and the licensed dental business (whether a natural person or a legal entity for whom such natural person is an agent) who has agreed to this Agreement by clicking the “AGREE” button at the bottom of this Agreement (“You,” “Your” or “Yours”). You shall provide documentation of Your legal licensure to ONVI upon request.
PLEASE READ THIS NOTICE REGARDING DISPUTE RESOLUTION: This Agreement contains provisions that govern how claims You and ONVI may have against each other are resolved (including without limitation Section 8 (“Legal Disputes and Arbitration Agreement”)), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require You to submit claims You have against ONVI to binding arbitration, and limits the time period within which You may bring a claim against ONVI. You will only be permitted to pursue claims against ONVI on an individual basis, not as part of any class action or proceeding and You will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
- Definitions. Capitalized terms used in this Agreement shall have the following meanings:
“Attachment” shall mean an attachment to the Motsy Light, sold separately by ONVI, or together with a Motsy Light as a “pack.”
“Effective Date” shall mean the date upon which You clicked on the “AGREE” button below.
“Examination” shall have the meaning assigned to in Subsection 2.4(B) (“Examinations”).
“Facility” shall mean a licensed dental office operated by You and located in the United States.
“Intellectual Property” shall have the meaning assigned to it in Section 5 (“Intellectual Property”).
“JAMS” shall have the meaning assigned to it in Subsection 7.2 (“Agreement to Binding Arbitration”).
“Level” shall mean either Gold Level, Platinum Level or Diamond Level as described in Exhibit A (“Motsy Lights, Prices and Levels”).
“Motsy Lights” means MOTSY™-branded double-LED dental examination lights as identified from time to time upon notice by ONVI, and including Attachments.
“Orders” shall have the meaning assigned to it in Subsection 2.2(B) (“Purchase Process”).
“Patient” shall mean a dental patient of the Facility.
“Promotion” shall have the meaning assigned to it in Subsection 2.4(D) (“Promotions”).
“Term” shall have the meaning assigned to it in Subsection 6.1 (“Term”).
“Videos” shall have the meaning assigned to it Subsection 2.4(C) (“Videos”).
- Distributorship Terms.
2.1 Your Obligations. Subject to the terms of this Agreement, ONVI hereby agrees that You shall have the non-exclusive right to purchase Motsy Lights from ONVI and distribute such Motsy Lights solely from the Facility directly to Patients for use by such Patients and not for further resale. You hereby agree that You will market and distribute Motsy Lights only in the form delivered or approved by ONVI. You will not modify or alter Motsy Lights or any Motsy Light labeling, packaging or instructions for use without ONVI’s prior written consent.
2.2 Levels and Purchase Process.
- Levels. You will be automatically assigned a Level that corresponds to the volume of Motsy Lights initially purchased by You, if any, as further described in Exhibit A (“Motsy Lights, Prices and Levels”).
- Purchase Process. If You are a Platinum Level or a Diamond Level, You may place orders for the purchase of Motsy Lights (“Orders”) at this Website. Once You have agreed to the terms of this Agreement, You will be provided a link to the Motsy Light shopping cart page on this Website to place Your first Order. You are not required to place any Order or purchase Motsy Lights, but if You do, You must pay for Motsy Lights upon placing Your Order, including all shipping charges, and You may do so via SHOPIFY® or such other means as ONVI may provide. ONVI shall use its commercially reasonable efforts to ship Motsy Lights by Your desired delivery dates, but shall have no liability for late delivery or mis-delivery of Motsy Lights. You may cancel Orders prior to delivery and obtain a credit for amounts You have already paid, but if You cancel an Order that has shipped already, You must pay all shipping charges, plus a restocking fee of fifteen percent (15%) of the price of the corresponding Motsy Lights. You may elect to purchase and maintain an inventory of Motsy Lights. You are not required to do so at the Gold Level, but You shall be required to maintain a Motsy Light inventory at other Levels. You hereby agree that that You shall distribute Motsy Lights solely to Patients, solely in the manner described in this Agreement, and in no event for sale or resale by You or any third party.
2.3 Find-A-Dentist. The Website contains a feature called “Find-A-Dentist” that is available to the general public and Patients. Using Find-A-Dentist, Patients can locate You and Your Facility, Your street and email addresses, and Your website , and learn about Your corresponding Level. Patients may also use such information to contact You and make an appointment. You hereby agree to provide true and correct information about Your business and the Facility to ONVI, and You hereby grant to ONVI a non-exclusive, fully paid, royalty-free license during the Term to include and display such information on this Website and in related marketing materials.
2.4 Motsy Light Purchase and Delivery to Patients.
- Process. For the elimination of doubt, Patients may purchase Motsy Lights only directly from ONVI and via this Website. Where a Patient has elected to have a Motsy Light directly shipped to such Patient, then in such case the corresponding Motsy Light shall be shipped directly to the Patient by ONVI, and without Your involvement. Where Patients have instead elected to pick up a Motsy Light from You, however, You will fulfill that sale on behalf of ONVI by providing that Motsy Light directly to the Patient. In no event shall You collect any payment or make any direct sale of Motsy Lights. If You are a Gold Level, Motsy Lights will be shipped to You by ONVI on a Patient-by-Patient basis, and You will not be required to maintain an inventory. ONVI expects that such shipments will take approximately two (2) weeks to reach You. Where You are Platinum Level or Diamond Level, however, a Patient may elect to pick up a Motsy Light from Your inventory. In all cases, You shall be responsible to coordinate timing for delivery of Motsy Lights to Patients. Where You and a Patient agree to Motsy Light pick-up from Your Inventory, then following such pick-up, You may notify ONVI by email, and ONVI shall promptly ship a replacement Motsy Light for Your inventory to Your Facility at the least costly insured available rate.
- Examinations. Regardless of Your Level, and prior to any Patient pick-up of a Motsy Light from Your Facility, You shall ensure that such Patient first has a reasonable dental examination, including radiographs (each, an “Examination”). Any fees charged by You for such Examinations are strictly between You and the Patient. In particular:
- You will ensure that the Patient is properly advised of his or her oral condition;
- You will use the corresponding radiographs to illustrate any oral problems, and proper use of the Motsy Light with respect to such problems; and
- You will advise the Patient on proper tooth-brushing techniques, along with proper use of Motsy Lights, including all Attachments.
- Videos. ONVI maintains an instructive videos on this Website which is directed toward educating Patients about proper use and the benefits of using the Motsy Light (the “Videos”). You agree to encourage each Patient to view the Video while at Your Facility, and You shall inform each such Patient that ONVI will provide a ten dollar ($10.00) credit to the Patient’s ONVI account (at checkout from the Website) where that the Patient has viewed such Video. You shall also ensure that all Your staff are familiar with and prepared to instruct Patients in the proper use of Motsy Lights (including Attachments) by watching corresponding Videos.
- Promotions. If You are a Diamond Level, You hereby agree to provide each new Patient a commercially reasonable promotion in the form of a discounted or free examination or radiography, or some other offering that would be reasonably seen as likely to be attractive to Patients (each, a “Promotion”). The nature and value of Your Promotions are strictly between You and Your Patient, but ONVI encourages You to be generous in designing Your Promotions in order to attract new Patients and grow Your business.
- Attachments. Patients may purchase Attachments directly from ONVI via this Website for delivery directly to them without Your involvement. Regardless of Your Level, You may also elect to purchase Attachments and keep such Attachments in inventory for distribution without charge as a “give-away” to Your Patients who will use such Attachments with their Motsy Lights. You may not, however, purchase and resell Attachments. The prices for Attachments may vary depending upon volume purchased, and Your Level.
2.5 Discontinuation of Production; No Repairs; No Returns. You acknowledges that ONVI reserves the unilateral right to discontinue the manufacture, production or distribution of Motsy Lights upon notice and without any further obligation to You. The Motsy Lights are not designed to be repaired or opened, and You shall instruct Patients accordingly. You understand and agree that Motsy Lights may not be returned (other than by Patients for warranty service) and that all Motsy Light sales to You are final, subject to Subsection 6.2 (“Effect”).
2.6 Patient Warranty Only. THE LIMITED WARRANTY PROVIDED ALONG WITH PRODUCTS TO EACH PATIENT IS THE ONLY WARRANTY OFFERED BY ONVI. ONVI MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING FROM USAGE OR TRADE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ONVI MAKES NO WARRANTY TO YOU WITH RESPECT TO ANY MATTER WHATSOEVER.
- Compliance with Law. You hereby represent and warrant that You are and shall at all times be in full compliance with all laws applicable to this Agreement, the Motsy Lights, Patients and Your business, including without limitation all applicable professional licensure laws, rules and regulations. In performing Your obligations under this Agreement and in conducting Your business, You agree to adhere to the highest level of integrity, honesty and care applicable to dentistry. You agree to comply with all ONVI’s requirements regarding Motsy Light recalls, Patient complaints, and complaint reporting.
- Indemnification and Limitation of Liability.
4.1 Indemnification. You hereby agree to indemnify, defend and hold harmless ONVI from and against all liabilities, losses, claims, damages or other costs of any nature or kind whatsoever arising directly or indirectly out of: (a) any breach of any warranty, representation or agreement made by You; (b) Your negligence or intentional misconduct; (c) any false or misleading statements or actions by You; and (d) any claim of injury or death to any Patient, other than as caused by a Motsy Light.
4.2 Limitation of Liability. IN NO EVENT WILL ONVI BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOST PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES UNDER ANY THEORY OF LIABILITY. THIS LIMITATION APPLIES EVEN WHERE ONVI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Intellectual Property. You hereby acknowledge that the Motsy Lights are the subject of valuable trademarks, trade names, copyrights, trade secrets and other intellectual property owned by ONVI (“Intellectual Property”). You hereby agree that such Intellectual Property is the sole property of ONVI and You will take no steps to challenge or impair same. You do not acquire any right, title or interest in the Intellectual Property by virtue of the execution or performance of this Agreement.
- Term and Termination.
6.1 Term. The term of this Agreement (“Term”) shall commence upon the date You clicked on the “AGREE” button below and shall continue until terminated by either party upon ten (10) days’ notice, with or without cause.
6.2 Effect. Upon the termination of this Agreement, Your rights under this Agreement shall terminate, and Your information shall be removed from Find-a-Dentist. If You have been Platinum Level or Diamond Level, ONVI shall have the right, but not the obligation, to repurchase all Your inventory of Motsy Lights (undamaged, in the original packaging and suitable for resale) at the prices You originally paid for them. In such case, ONVI shall also reimburse You for return shipping of such Motsy Lights.
6.3 Survival. In the event of termination of this Agreement, the following provisions shall survive: Section 1 (“Definitions”), Subsection 2.6 (“Patient Warranty Only”), Section 4 (“Indemnification and Limitation of Liability”), Section 5 (“Intellectual Property”), Subsection 6.2 (“Effect”), Subsection 6.3 (“Survival”), Section 7 (“Legal Disputes and Arbitration Agreement”) and Section 8 (“General Provisions”).
- Legal Disputes and Arbitration Agreement.
7.1 Choice of Law. This Agreement shall be subject to the laws of the state of Illinois as apply to contracts entered into and performed in Illinois between Illinois residents and without regard to conflicts of laws principles. Subject to Subsection 7.2 (“Agreement to Binding Arbitration”), the state and federal courts located in Chicago, Illinois shall have sole jurisdiction over any disputes arising hereunder, and the parties hereby consent to the personal jurisdiction of such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
7.2 Agreement to Binding Arbitration. In the event of any dispute between the parties, either party may initiate binding arbitration pursuant to the terms set forth in this Agreement. All claims arising out of or relating to the terms set forth in this Agreement (including their formation, performance, and breach), the Motsy Lights, or the parties’ relationship with each other shall be finally settled by binding arbitration administered by JAMS/ENDISPUTE, LLC (“JAMS”), in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, scope, enforceability, or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable, and except as provided for in Subsection 7.5 (“Exception – U.S. Small Claims Court Claims”), Subsection 7.6 (“Exception – California Private Attorneys General Act (PAGA) Action”) and Subsection 7.7 (“Exception – Claims Involving Intellectual Property Rights”). You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in Wilmette, Illinois. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You and ONVI agree that this Subsection 7.2 (“Agreement to Binding Arbitration”) shall survive termination or expiration of this Agreement. The Agreement memorializes a transaction involving interstate commerce and the interpretation and enforcement of this Subsection 7.2 (“Agreement to Binding Arbitration”) shall be governed by the U.S. Federal Arbitration Act (9 U.S.C. § 1 et seq.). THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
7.3 Rules. The foregoing JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures or by calling 1-800-352-5267. If You initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), ONVI will pay the additional cost. If ONVI is required to pay the additional cost of the filing fees, You should submit a request for payment of fees to JAMS along with Your form for initiating the arbitration, and ONVI will make arrangements to pay all necessary fees directly to JAMS. ONVI will also pay JAMS to reimburse You for any portion of the filing fee that is more than what You would otherwise have to pay to file suit in a court of law. The arbitrator may also award attorney’s fees, expert witness fees and costs to any party to the arbitration if it is determined that a claim was brought or opposed in bad faith, or for purposes of harassment, or the claim or any position taken in the arbitration is patently frivolous. If multiple individual arbitration proceedings are consolidated pursuant to this Subsection 7.3 (“Rules”), JAMS and the arbitrator may treat the consolidated proceedings as one (1) arbitration for purposes of assessing JAMS fees and the arbitrator’s compensation, and You consent and agree not to object to any reduction or elimination of JAMS fees or arbitrator compensation. Unless otherwise agreed upon by You and ONVI in writing, the arbitrator shall determine the amount of fees, costs, and expenses to be paid pursuant to this Section 7 (“Legal Disputes and Arbitration Agreement”).
7.4 Class Action and Class Arbitration Waiver. YOU AND ONVI EACH FURTHER AGREE THAT ANY ARBITRATION SHALL BE CONDUCTED IN EACH PARTY’S RESPECTIVE INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION. YOU AND ONVI EACH EXPRESSLY WAIVES ITS RESPECTIVE RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS, INCLUDING U.S. FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. Although the parties have agreed that no disputes may proceed as part of a class arbitration, You and ONVI hereby agree that JAMS may consolidate an individual arbitration filed under this Agreement with other individual arbitration(s), at the request of any party, if the arbitrations share any common issues of law or fact. The consolidation issue shall be determined by the arbitrator appointed for the earliest filed arbitration. Any disputes over whether an arbitration claim should be consolidated with others, or which arbitrator shall hear any consolidated matter, shall be resolved by JAMS. If any court or arbitrator determines that the class action waiver set forth in this Subsection 7.4 (“Class Action and Class Arbitration Waiver”) is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth in Section 7 (“Legal Disputes and Arbitration Agreement”) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
7.5 Exception – U.S. Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may bring an individual action in a U.S. small claims court if that action is within that court’s jurisdiction, on an individual (non-class) basis only. If a party initiates an arbitration asserting a claim that falls within the jurisdiction of the small claims court, the other party may, at its discretion, require that the arbitration demand be withdrawn and that the claim be filed in the small claims court.
7.6 Exception – California Private Attorneys General Act (PAGA) Action. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.
7.7 Exception – Claims Involving Intellectual Property Rights. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim relating to the enforcement, infringement, or validity of: (a) trade secrets; (b) patents; (c) copyrights; or (d) trademarks. The parties agree that a court, not the arbitrator, may decide if a claim falls within one of these four (4) exceptions.
7.8 Time Limitation. TO HELP RESOLVE ANY ISSUES BETWEEN THE PARTIES PROMPTLY AND DIRECTLY, YOU AND ONVI AGREE THAT ANY ARBITRATION OR SMALL CLAIMS COURT PROCEEDING REGARDING A CLAIM UNDER THIS AGREEMENT MUST BE INITIATED WITHIN ONE (1) YEAR AFTER THE CLAIM FIRST AROSE; OTHERWISE THE CLAIM IS PERMANENTLY BARRED.
- General Provisions.
- To ONVI. Any notice, request, or other document to be given to ONVI under this Agreement must be in writing and: (a) sent by registered or certified mail, postage prepaid; (b) hand delivered; or (c) sent by express mail or other overnight delivery service which provides documentation of receipt, addressed as follows:
Chief Executive Officer
ONVI III, LLC
1159 Wilmette Avenue
Wilmette, IL 60091
Notices of Motsy Light delivery, and day-to-day matters may be provided via telephone ((847) 251-3052) or email (firstname.lastname@example.org).
- To You. Any notice, request, or other document to be given to You under this Agreement must be in writing and will be sent to the email address You used when You first purchased Motsy Lights, or such other email address as You may have provided to ONVI in writing thereafter.
8.2 No Oral Modifications. Except as expressly provided herein, this Agreement may not be modified except in writing, such written modification to be signed by the parties hereto. Any purported oral modification hereof shall be void.
8.3 No Implied Waiver. No failure of either party to enforce any obligations will prevent later enforcement of that obligation. Any waiver of an obligation must be in writing, will only apply to the specific circumstances to which it relates, and will not prevent the enforcement of the obligation in the event of a subsequent breach.
8.4 Assignment. You may not assign this Agreement or any right, benefit, or obligation under this Agreement without the prior written consent of ONVI, and any assignment by You without such consent will be void. ONVI may assign this Agreement without restriction.
8.5 Relationship of Parties. The relationship between the parties established by this Agreement is that of independent contractors and not an agency, employment, joint venture, franchise, or partnership relationship.
8.6 Taxes. Taxes now or hereafter imposed with respect to the transactions contemplated hereunder are the responsibility of the party against whom the taxes are levied.
8.7 Force Majeure. Neither ONVI nor You will be liable in damages to the other or any third party, for any delay or default in performing any obligation hereunder if that delay in or failure to perform is directly or indirectly caused by or resulting from any cause, event or circumstances beyond the reasonable control and without fault or negligence of the party claiming force majeure.
8.8 Severability. If any provision of this Agreement is declared invalid or unenforceable by an arbitrator or court having competent jurisdiction, it is mutually agreed that this Agreement will endure except for the provision declared invalid or unenforceable. In such event, the parties agree to consult and use their best efforts to agree upon a valid and enforceable provision, which will be a reasonable substitute for such invalid or unenforceable provision in light of the original intent of the parties upon entry into this Agreement.
8.9 Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
8.10 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which is deemed an original, but all of which together constitute one (1) instrument.
8.11 Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous agreements and understandings, whether written or oral, between the parties regarding the subject matter hereof. Neither party has entered into this Agreement in reliance upon any representation, warranty or undertaking of the other party which is not expressly set out or referred to in this Agreement.
Motsy Lights, Prices and Levels
As of the Effective Date, the Motsy Light consists of the MOTSY™ brand dental light, including associated attachments.
Annual Update and Participation Fees.
Each year during the Term, You and ONVI shall confer from time to time regarding Your performance, Your Patients’ experience with the Motsy Lights, and mutual plans for the future. For the first one (1) year of the Term, there shall be no separate fee charged or payable by You under this Agreement (other than payment for Motsy Lights). After the first one (1) year, however, ONVI reserves the right to impose a fee (payable monthly, quarterly, annually, or otherwise) upon no less than ninety (90) days’ notice to You.
For purposes of this Exhibit A (“Motsy Lights, Prices and Levels”), the term “List Price” means the full price of the Motsy Light or Attachment as it appears on the Website. As of the Effective Date, Your purchase prices for Motsy Lights and Attachments are as follows
Product Gold Level Price
Personal Oral Hygiene Pack
Fifty percent (50%) of List Price
In addition: (a) if You purchase ten (10) or more “packs.” In one (1) Order, you will qualify for Platinum Level pricing; and (b) if you purchase twenty (20) or more “packs” in one (1) order, you will qualify for Diamond Level pricing.
ONVI may adjust any and all such prices upon notice to You.
Levels. Your Level will be automatically assigned based on the following:
If You choose not to purchase at least ten (10) Motsy Lights for inventory, then You are at the Gold Level. In such case, where Patients purchase Motsy Lights and wish to pick them up at Your Facility, ONVI will send the Motsy Lights to Your Facility on a Patient-by-Patient basis and You shall be responsible for coordinating pick-up there. All other terms of the Agreement shall continue to apply.
If You choose to purchase at least ten (10) Motsy Lights for inventory, then You are at the Platinum Level. In such case, where Patients purchase Motsy Lights and wish to pick them up at Your Facility, You shall provide such Motsy Lights out of Your inventory, and ONVI shall replace such Motsy Lights promptly at ONVI’s expense upon notice from You and proof of delivery of the Motsy Light to the Patient. All other terms of the Agreement shall continue to apply.
If You choose to purchase at least twenty (20) Motsy Lights for inventory, then You are at the Diamond Level. In such case, where Patients purchase Motsy Lights and wish to pick them up at Your Facility, You shall provide such Motsy Lights out of Your inventory, and ONVI shall replace such Motsy Lights promptly at ONVI’s expense upon notice from You and proof of delivery of the Motsy Light to the Patient. All other terms of the Agreement shall continue to apply. Without limiting the generality of the foregoing, You shall be responsible for offering Promotions as described in Subsection 2.4(D) (“Promotions”).
 NTD: Any chance someone will buy only, say, 5 Motsy Lights? Does that stay at Gold Level?