LICENSING AGREEMENT
This LICENSING AGREEMENT (this “Agreement”) is entered into and made effective as of Effective Date by and between (altogether, “Licensor”), and the undersigned Person (“Licensee”), each of which may be referred to herein as a “Party” or collectively as, the “Parties”.
WHEREAS, in the course of its Business, Licensor has developed the Product herein, which includes numerous features that constitute intellectual property owned by Licensor and which are subject to protection under the laws of the U.S. and foreign countries where applicable, including, but not limited to, copyright, patent, design, trademark, trade dress, and trade secret protection; and
WHEREAS, Licensee desires to gain access to Licensor’s Product for use at its Practices on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. ENGAGEMENT
Licensee hereby engages Licensor to provide to Licensee subscription access to the Product. The Product shall be used by Licensee solely in connection with the business operations of, and at the Practices listed on Exhibit “A”. Licensee shall be allowed to operate the Product solely in relation to operation of the Practices.
2. DEFINITIONS
2.1. “Authorized User” means Licensee’s employees, consultants, contractors, and agents who are authorized in writing by Licensee to access and use the Product under the rights granted to Licensee pursuant to this Agreement.
2.2. “Business” means Licensee’s business of designing, developing, installing, and maintaining software for use in dental imaging, and providing access to such products, together with related hardware products, for the dental industry.
2.3. “Confidential Information” shall mean the Product and all information, data, know-how, trade secrets, intellectual property, and any other proprietary or confidential information of a Party that is by its nature confidential; designated by the disclosing Party as confidential; or the Parties know or reasonably should know is confidential.
2.4. “Data” shall mean any electronically stored information, data, documents, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Licensee or an Authorized User through the Product.
2.5. “Data Protection Law” means any applicable law relating to data privacy or data protection and guidance, directions, determinations, codes of practice, circulars, orders, notices, or demands issued by any competent data protection authority.
2.6. “Device” means computers, dental scanners, and any other hardware provided by Licensor, or approved third party, to Licensee during the Subscription Period.
2.7. “Effective Date” shall be the date that this Agreement is signed by Licensee.
2.8. “End Date” shall mean the mutually agreed-upon date that access to the Product will end, as listed on Exhibit “B” attached hereto and incorporated by reference.
2.9. “EULA” means the End User License Agreement attached hereto and incorporated herein as Exhibit “C”.
2.10. “Feedback” shall mean any suggestions, comments, ideas, recommendations, or other feedback provided by Licensee, its Authorized Users, employees, representatives, customers, contractors, affiliates, or agents, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like.
2.11. “Licensor Customer Portal” means the online website through which Licensee may provide shipping and billing information to Licensor, access information about the Product, and other information associated with this Agreement.
2.12. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
2.13. “Personal Information” shall mean the personal information that identifies an individual protected under applicable Data Protection Laws.
2.14. “Practices” shall mean the dental, endodontic, or periodontic practices or other entity or entities identified in Exhibit “A” for which access to the Product is granted during the Subscription Period.
2.15. “Product” shall mean the Software together with the Devices provided to Licensee on which the Software operates.
2.16. “Software” shall mean the software developed by Licensor for facilitating crown restorations and made accessible by Licensor to Licensee under this Agreement.
2.17. “Start Date” shall mean the mutually agreed-upon date that any Devices ordered shall have been delivered, and access to the Product will begin, as listed on Exhibit “B”.
2.18. “Subscription Fee” shall mean the mutually agreed-upon monthly price payable by Licensee to Licensor for providing access to the Product during the Subscription Period.
2.19. “Subscription Period” shall mean the period during which Licensee is granted access to the Product under this Agreement. The Subscription Period shall begin on the Start Date and end on the End Date identified in Exhibit “B”, unless otherwise specified.
2.20. “Third Party” means any Person other than Licensee or Licensor.
2.21. “Trade Laws” shall mean the various laws maintained by the U.S. and other governments to regulate exports and imports of goods, services, and technology, including the Export Administration Regulations maintained by the U.S. Commerce Department, the economic sanctions regulations maintained by the U.S. Treasury Department, and Executive Orders and other formal directives and notices issued by the U.S. government in order to prevent trade and transactions with particular countries, entities, individuals and other designated parties.
2.22. “Upfront Payment” shall mean the mutually agreed-upon one-time payment to Licensor prior to delivery of the Product, as specified in Exhibit “B”.
2.23. “Upgrades” shall mean any updated version, feature, or functionality of the Product as may become available, and as may be offered by Licensor to Licensee for purchase.
2.24. “U.S.” means the United States of America and its territories.
3. GRANT OF LICENSE
Subject to the terms herein, including without limitation Section 4 hereof and the EULA, Licensor hereby grants to Licensee, and Licensee accepts, a limited, personal, non-transferable, non-exclusive, non-assignable, and non-sublicenseable license to use the Product for each Authorized User, in both cases during the Subscription Period solely for use by Authorized Users and for the business purposes of Licensee in respect to the Practices in strict accordance with the Product’s documentation. The grant of the license is contingent upon Licensee complying with all applicable laws with respect to its use of the license, including compliance with U.S. and other applicable Trade Laws.
4. SUBSCRIPTION FEES AND PAYMENT
4.1. Configuration. Licensee may order any Device(s) from Licensor or through an approved Third Party.
4.2. Upfront Payment. In exchange for Licensor providing access to the Product during the Subscription Period, Licensee shall pay to Licensor a one-time payment as set forth in Exhibit “B”.
4.3. Subscription Fees. In addition to the Upfront Payment, Licensee shall pay to Licensor a monthly Subscription Fee based on the Devices and Software provided to Licensee by Licensor. The Subscription Fee is established for the Software and for each Device as set forth in Exhibit “B” on a price per month basis in U.S. Dollars. Expiring Subscriptions shall require an Addendum to Exhibit “B” and may be subject to new Subscription Fees.
4.4. Order Procedure. Licensee shall initiate all orders through one of the following procedures: (a) orders may be submitted in written form by completing Exhibit “B” attached hereto and sending the completed form to Licensor via email or U.S. mail; or (b) orders may be submitted electronically through the Licensor Customer Portal.
4.5. Licensor Right to Accept or Reject Order. Licensor has the right, in its sole and absolute discretion, to accept or reject any order. Licensor may accept any order by confirming the order (whether by written confirmation, invoice or otherwise) or by delivering the Products, whichever occurs first. No order is binding on Licensor unless accepted by Licensor as provided in this Agreement.
4.6. Payment Date. The Upfront Payment shall be due and payable on the Effective Date of this Agreement or within two (2) business days thereafter. The Subscription Fee shall be due and payable in advance in monthly installments. The first monthly Subscription Fee installment shall be due on or prior to the scheduled Start Date. Each subsequent monthly Subscription Fee installment for the Products shall be due in advance in monthly installments for each successive month thereafter during the Subscription Period. In the event that the first monthly Subscription Fee installment for a Practice is not paid on or prior to the scheduled Start Date, Licensor may at its sole and absolute discretion postpone Licensee’s access to the Product until such time as the first monthly Subscription Fee is paid. To the extent additional Devices are added after the Effective Date hereof, the Parties shall amend Exhibit “B” and the additional Devices shall be governed by this Agreement.
4.7. Invoicing and Payment. Licensor shall submit to Licensee an invoice for the monthly Subscription Fee. Multiple Subscription Fees may be included on a single invoice. Invoices are to be paid directly to Licensor within fifteen (15) days of receipt of such invoice, in accordance with directions on the invoice. Licensee may elect to select automatic monthly payments through the Licensor Customer Portal or by executing the Recurring Payment Authorization form included in Exhibit “B”. Licensee may add additional Products to this Agreement after the Effective Date, upon execution by the Parties of an Addendum adding the additional Products to Exhibit “B”. Subscription Periods for all new Products added after the Effective Date shall have a common End Date as listed in Exhibit “B”.
4.8. Subscription Fee Adjustment. Subscription Fees shall remain as identified in Section 4.2 above and/or Exhibit “B” for each Product during the Subscription Period. Subscription Fees are subject to change for the Product after the Subscription Period ends.
4.9. Subscription Fee is Non-refundable. All Subscription Fees shall be non-refundable except as otherwise provided in this Agreement. Licensee’s only remedy for any breach of this Agreement shall be credits toward future services.
4.10. Upfront Payment is Non-refundable. The Upfront Payment shall be a one-time deposit, which will be deemed earned and shall be non-refundable by Licensor on the Effective Date of this Agreement.
4.11. Overdue Charges. If any amount owed by Licensee becomes thirty (30) or more days overdue, Licensor may at its sole and absolute discretion charge Licensee late fees at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date the payment was due until the date the payment is received. Additionally, Licensor may suspend access to the Product, or any feature(s) of the Product, until such time as the overdue amount is paid in full, without incurring any liability to Licensee.
4.12. Upgrades. Upgrades to the Software shall be available to Licensee and included in the Subscription Fee during the Subscription Period.
4.13. Subscription Fees are Confidential. Licensee shall treat all Subscription Fee information as Confidential Information and shall not disclose or otherwise reveal or make available Subscription Fee information to any Third Parties without the prior written consent of Licensor.
4.14. Taxes and Other Amounts. Licensee shall be responsible for all Subscription Fees and other charges and fees due hereunder, and will pay to Licensor all sales, use, excise, or other similar taxes (federal, state, and/or local) measured directly by amounts payable to Licensor pursuant to this Agreement. In no event shall Licensee be obligated to pay any tax imposed on income of Licensor pursuant to this Agreement or any tax imposed on Licensor’s privilege of doing business.
5. SHIPMENT AND DELIVERY
5.1. Shipment. Unless expressly agreed to by the Parties in writing, Licensor shall select the method of delivery for any Products to be shipped to Licensee. Licensor may, in its sole and absolute discretion, without liability or penalty, make partial shipments of Products to Licensee.
5.2. Delivery. Unless expressly agreed to by the Parties, Licensor shall deliver the Products to Licensee’s address listed in its signature block herein below, using Licensor's (or manufacturer's, as the case may be) standard methods for packaging and shipping such Products.
5.3. Timing. Licensor shall deliver the Products to Licensee at any time before the Start Date listed in Exhibit “B”. Notwithstanding the foregoing, Any time quoted by Licensor for delivery is an estimate only. Licensor is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver, or delay in delivery. If the delivery of the Products is not made by the Start Date, Licensor shall use its best efforts to expedite the delayed Products and shall pro-rate the monthly Subscription Fee to account for any delay in Licensee’s access to or use of the Product. No delay in the shipment or delivery of any Products relieves Licensee of its obligations under this Agreement, including without limitation accepting delivery of any remaining installment(s) of Products.
5.4. Inspection. Licensee shall inspect the Products within ten (10) days of receipt of the Products. Licensee shall notify Licensor in writing of any missing, damaged, or incorrect Products, and of any discrepancy in quantity of Product, within five (5) days of discovery of such error or defect.
6. TERMINATION
6.1. Term. The term of this Agreement shall be deemed to have begun on the Effective Date and shall continue to the last End Date set forth in Exhibit “B”, unless terminated earlier in accordance with the terms of this Agreement.
6.2. Automatic Renewal. Unless an addendum to Exhibit “B” setting forth a new End Date is mutually-agreed upon between the Parties in writing prior to the end of the Subscription Period (i.e., at midnight of the End Date) or unless either Party provides written notice of its intent not to continue the Agreement by no later than thirty (30) days prior to the expiration of the Subscription Period, this Agreement will automatically convert to a month-to-month subscription at a rate equal to the current monthly rate plus a ten percent (10%) premium for each Device listed in Exhibit “B”. The monthly fee will increase an additional ten percent (10%) each year thereafter as long as Licensee remains on a month-to-month subscription. This arrangement will continue until such time as the Parties enter a mutually agreed upon written renewal agreement or until Licensee notifies Licensor in writing that Licensee wishes to terminate the Agreement. During an automatic renewal period, this Agreement and all rights and obligations hereunder shall remain binding on the Parties.
6.3. Suspension of Access. Licensor reserves the right to suspend Licensee’s access to the Product without notice and in Licensor’s sole and absolute discretion if: (a) Licensee’s use of the Product poses a material security risk to the Product, or may be reasonably expected to cause harm to Licensor’s system or its service providers or other customers; (b) Licensee is using the Product in violation of this Agreement; or (c) Licensee is delinquent in its payment obligations by thirty (30) days or more.
6.4. Termination by Either Party. Upon thirty (30) days’ prior written notice to the other Party, either Party may terminate this Agreement if: (a) the other Party breaches any of its material obligations hereunder and fails to cure such breach by the end of such thirty (30) day period, or, if the Parties mutually agree that the breach is not capable of being cured or remedied within thirty (30) days, then within a time period mutually agreed upon in writing by the Parties; or (b) the other Party files a petition in bankruptcy, makes an assignment for the benefit of creditors, is adjudicated insolvent or bankrupt, petitions or applies for a receiver or trustee for a substantial part of its property, commences any proceeding under any reorganization arrangement, dissolution or liquidation law or statute of any jurisdiction, or if there is commenced against the other Party any such proceeding which has not been dismissed sixty (60) days after commencement.
6.5. Effect of Termination. Upon termination of this Agreement, all granted rights conveyed from Licensor to Licensee are extinguished, and Licensee may not continue to use or access the Product unless otherwise authorized to do so in a separate written agreement with Licensor.
6.6. Termination Upon Transfer. In the event the Practices listed in Exhibit “A”, as may be updated from time to time, is/are sold, or if Licensee no longer manages the Practices, during the Subscription Period, Licensee may remove those Practices from this Agreement and terminate those Practices’ subscription to the Product by providing written notice to Licensor at least thirty (30) days prior to the transfer of ownership or end of management. No Subscription Fees or Upfront Payment shall be refunded based on such termination.
6.7. Termination Upon Brand Requirements. In the event the Practices is/are required by its brand to use another product tool that conflicts with the Product, during the Subscription Period, Licensee may remove that Practice and associated Devices from the Agreement and terminate that Practice’s subscription to the Product by providing written notice to Licensor at least thirty (30) days prior to the desired termination date. No Subscription Fees or Upfront Payment shall be refunded based on such termination.
6.8. Obligations upon Termination. Upon termination of this Agreement all rights granted to Licensee shall terminate, Licensee shall cease access and use of the Product, delete any Software (and cause Authorized Users to delete any Software) from any of Licensee’s devices, and return to Licensor all components of the Product, including all related documentation, all access criteria, all tutorial information and any and all related computer readable media or Devices owned by Licensor pertaining to the Product. Licensee agrees to cease any and all use and/or access of the Product at the time of termination of this Agreement.
6.9. Termination Upon Breach of Law. Notwithstanding anything to the contrary, Licensor may immediately terminate this Agreement upon written notice to the Licensee in any case in which Licensor knows or believes that Licensee has violated Section 2 of the EULA, or if Licensor knows or believes that Licensee is or has become a prohibited party under the Trade Laws.
7. LICENSEE SUPPORT
7.1. Remote Support. Licensor shall provide remote support in the form of email, telephone, and video conferencing, video tutorials, and/or instruction manuals to assist Licensee in implementation, operation and maintenance of the Product as reasonably necessary to provide Licensee the ability to access and use the Product. Remote support shall be included at no additional cost to Licensee. All documentation provided as part of remote support shall be treated as Confidential Information.
7.2. On-site Support. Licensor may, in Licensor’s sole and absolute discretion and at Licensee’s request, provide on-site support to Licensee in the form of an on-site meeting with one of Licensor’s agents or representatives to address technical problems associated with the access to and/or usage of the Product. On-site support services are not included in the Subscription Fee for each Practice. All On-site support services will be invoiced separately by Licensor.
7.2.a. On-site Support Expenses. On-site support, if provided, will be subject to additional costs not included in the price of the Product. Travel and lodging expenses associated with on-site support incurred by Licensor shall be paid by Licensee.
7.2.b. On-site Maintenance Fee. Additionally, Licensor may charge Licensee an on-site maintenance fee of up to Nine Hundred Dollars ($900) per day for every Licensor employee or agent physically present during on-site support.
7.2.c. On-site Support Invoices. All expenses associated with on-site support shall be sent to Licensee as a separate invoice, and all invoices received by Licensee associated with on-site support shall be paid within thirty (30) days of receipt of any such invoice.
7.3. Errors in Product. Licensee shall notify Licensor in writing of any perceived errors, deficiencies, or “bugs” in the Product (collectively, “Errors”). Licensor shall undertake a reasonable investigation to determine whether such Errors exist, and Licensee shall provide all additional information requested by Licensor necessary to diagnose the Errors.
7.3.a. Upon receipt of notice in writing from Licensee identifying the Errors, and upon receipt of such additional information as Licensor may reasonably request in order to analyze the Errors, Licensor shall use its diligent commercial efforts and reasonable care to resolve the Errors, in accordance with generally accepted industry standards and practices.
7.3.b. Licensor is not obligated to address Errors to the extent reasonably found by Licensor, to be caused by (i) Licensee’s negligence or intentional misconduct; (ii) a modification to the Product, or the Device on which the Software is installed, by any Third Party not authorized by Licensor; (iii) a Force Majeure Event; (iv) improper or unauthorized use of the Product; (v) use of the Product in a manner for which it was not designed; or (vi) causes external to the Product such as, but not limited to, power failure or electric power surges.
7.3.c. Licensor is not obligated to address Errors in Device performance for a Device or Devices purchased through any Third Party.
8. MISCELLANEOUS
8.1. Independent Contractors. Licensee and Licensor are independent contractors with respect to each other. Nothing contained herein shall create any association, partnership, joint venture, employment or agency relationship between them or any Third Party.
8.2. Power and Authority. Each Party warrants and represents that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of such Party has been properly authorized and empowered to enter this Agreement.
8.3. Compliance with Applicable Laws. Licensee shall, and shall cause any and all Authorized Parties to, comply with all laws, rules, regulations and orders of any Governmental Authority, including but not limited to HIPAA, GDPR, and the CCPA, with respect to use of the Product at all times during, before and after the Subscription Period.
8.4. Further Assurances. Each Party shall take any and all steps, and execute, acknowledge, and deliver any and all further documents that the other may reasonably request to effectuate the intent and purposes of this Agreement.
8.5. Assignment. Licensee shall not assign, delegate, subcontract, or transfer, whether through merger, acquisition, change of control, divestiture of a business line, or any other corporate reorganization, or otherwise dispose of any of its rights, duties, or obligations hereunder, in whole or in part, without the prior written consent of Licensor. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their permitted successors and assigns. Any assignment or transfer in violation of this Section shall be null and void.
8.6. Survival. The provisions of Sections 2, 4, 6-7, 6.5, 6.8, this Section 8, and the EULA, shall survive any expiration or termination of this Agreement.
8.7. Waiver. No failure to exercise, and no delay in exercising, on the part of either Party, any privilege, any power, or any right hereunder will operate as a waiver thereof, nor will any single or partial exercise of any privilege, right or power hereunder preclude further exercise of any other privilege, right or power hereunder.
8.8. Severability. If any provision of this Agreement shall be determined to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable, and all other terms and provisions of this Agreement shall remain in effect and shall be enforced to the fullest extent permitted by applicable law.
8.9. Choice of Law. This Agreement, including all documents and exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the state of Arizona, U.S., without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the state of Arizona. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
8.10. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all agreements, exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the U.S. District Court for the District of Arizona or, if such court does not have subject matter jurisdiction, the courts of the state of Arizona sitting in Pima County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the U.S. District Court for the District of Arizona or the courts of the state of Arizona sitting in Pima County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
8.11. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including all agreements, exhibits, schedules, attachments and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising therefrom or the transactions contemplated hereby.
8.12. Attorneys’ Fees. In the event either Party takes legal action to enforce the terms and conditions of this Agreement against the other Party to this Agreement, the prevailing Party in such legal action shall be entitled to recover reasonable attorneys’ fees and costs from the other Party upon the entry of a final non-appealable judgment.
8.13. Entire Agreement; Amendments. This Agreement, including the Recitals and all Exhibits, and all explicitly incorporated documents, constitute the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous written or oral agreements, representations or negotiations with respect to the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by both Parties.
8.14. Headings. Section headings, titles and captions contained in this Agreement are inserted as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any of its provisions.
8.15. No Third-Party Beneficiary. Except as otherwise expressly provided in this Agreement, no provision of this Agreement shall create, or be deemed to create any legal or equitable right in any person not a party to this Agreement or give any such person any claim against any Party to this Agreement that such party would not have but for this Agreement.
8.16. Counterparts. This Agreement may be executed simultaneously in one or more counterparts, with the same effect as if the signatories executing the several counterparts had executed one counterpart. All such executed counterparts shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or by email of a PDF file shall be as effective as delivery of a manually executed counterpart of this Agreement. Electronic signatures shall have the same effect as ink signatures.
8.17. Construction of Terms. The language used in the Agreement shall be construed, in all cases, according to its fair meaning, and not for or against any party hereto. The Parties acknowledge that each Party has reviewed this Agreement and that rules of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be available in the interpretation of this Agreement.
8.18. Non-Solicitation. The Parties agree not to offer, promise, solicit or engage in employment with personnel from the staff of the other during the term of this Agreement and for a period of one (1) year after the expiration of the term of the Agreement, unless prior written consent is received from the other Party.
8.19. Force Majeure. Except for payment obligations, neither Party shall be in breach of this Agreement due to a delay or default in performance caused by governmental action, acts of God, war, terrorism, riot, accident, strike, telecommunications failures, or any other cause beyond the reasonable control of the delayed or defaulting Party (each, a “Force Majeure Event”). The Party claiming delay must notify the other Party of such Force Majeure Event and recommence performance promptly at the conclusion of such Force Majeure Event.
8.20. Publicity. Licensee agrees that, during the term of this Agreement, Licensor may use the name of Licensee on the Licensor website as a customer of Licensee.
8.21. Notice. All notices required to be given hereunder shall be given in writing and sent by mail, courier service, express mail service, or personally delivered to the respective addresses of Licensor and Licensee as set forth in this Agreement (or such other address as a Party may designate from time to time by written notice to the other Party). Notice given by mail shall be effective five (5) days after the date of mailing, postage prepaid certified or registered mail; and notice by personal delivery, courier service, or express mail service shall be effective upon delivery.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be entered into as of the Effective Date.
LICENSEE:
___________________________________ [company name]
Signature: ____________________________
Name: ______________________________
Title: _______________________________
Date: _______________________________ Address: _____________________________
____________________________________
Phone: ______________________________
E-mail: ______________________________
| LICENSOR:
Alphabyte, LLC
Signature: ____________________________
Name: ______________________________
Title: _______________________________
Date: _______________________________
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EXHIBIT “A”
Practices
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EXHIBIT “B”
PAYMENT AND SUBSCRIPTION FEES
Order #:_________________________
Start Date:_______________________ End Date: 48 months from Start Date
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Software | |||||
Item # | Part Number | Description | Monthly Subscription Fee | Qty | Extended Fee |
1 | AB-APCR-002.0 | AlphaByte Pediatric Crown Restoration software | $375.00 |
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Total Subscription Fee
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{Recurring Payment Authorization Form next page}
[1] Warranty Limitations for Third Party Purchases: Licensee acknowledges that the purchase of a Device(s) from an approved Third Party is subject to the Support and Warranty limitations listed in Section 7 of this Agreement and Section 6 of the UELA.
RECURRING PAYMENT AUTHORIZATION FORM
Licensor Name: |
Alphabyte, LLC dba Alphabyte Dental |
Licensee Name: |
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Telephone No.: |
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Email Address: |
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Billing Address: |
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Name on Card: |
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Credit/Debit Card Type & No.: |
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Exp Date / CVS: |
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Amount owing: (as of Effective Date) |
$ |
Amount to be charged: (monthly on Start Date) |
$ |
Date of (monthly) Charge: |
1st day of each month during the Term |
By its signature below, Licensee acknowledges that is has reviewed the Payment and Subscription Fees and Recurring Payment Authorization Form herein and acknowledges, understands, and agrees that AlphaByte Dental may process (charge) Licensee’s credit/debit card identified above in the amounts, and on the date(s) specified herein during the Term of this Agreement.
LICENSEE:
___________________________________
[company name]
Signature: ____________________________
Name: ______________________________
Title: _______________________________
Date: _______________________________
EXHIBIT “C”
END USER LICENSE AGREEMENT
END USER (a) ACCEPTS THIS EULA AND AGREES THAT END USER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT (I) END USER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT, AND (II) IF END USER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF END USER AND BIND END USER TO ITS TERMS. IF END USER DOES NOT AGREE TO THE TERMS OF THIS EULA, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO END USER AND END USER MUST NOT INSTALL OR USE PRODUCT.NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA OR END USER’S ACCEPTANCE OF THE TERMS AND CONDITIONS HEREIN, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS EULA, THE AGREEMENT, OR OTHERWISE, AND THIS EULA EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY PRODUCT THAT END USER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE: ONLY LICENSEE AND AUTHORIZED USER ARE AUTHORIZED TO USE THE PRODUCT.
1. DEFINITIONS
All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Agreement. As used in this EULA, the following definitions shall have the following meanings:
1.1. “Agreement” means the Licensing Agreement executed by Licensee.
1.2. “Authorized User” means Licensee’s employees, consultants, contractors, and agents who are authorized in writing by Licensee to access and use the Product under the rights granted to Licensee pursuant to the Agreement.
1.3. “Confidential Information” shall mean the Product and all information, data, know-how, trade secrets, intellectual property, and any other proprietary or confidential information of a Party that is by its nature confidential; designated by the disclosing Party as confidential; or the Parties know or reasonably should know is confidential.
1.4. “Data” shall mean any electronically stored information, data, documents, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Licensee or an Authorized User through the Product.
1.5. “Data Protection Law” means any applicable law relating to data privacy or data protection and guidance, directions, determinations, codes of practice, circulars, orders, notices, or demands issued by any competent data protection authority.
1.6. “Device” means computers, dental scanners, and any other hardware provided by Licensor, or approved Third Party, to Licensee.
1.7. “End User” means all Licensee(s), Authorized User(s), Third-Party(ies), and any other Person(s) using the Product.
1.8. “EULA” means this End User License Agreement.
1.9. “Feedback” shall mean any suggestions, comments, ideas, recommendations, or other feedback provided by Licensee, its Authorized Users, employees, representatives, customers, contractors, affiliates, or agents, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like.
1.10. “Licensee” means the Person having executed the Agreement.
1.11. “Licensor” means Alphabyte, LLC, an Arizona limited liability company dba AlphaByte Dental, having a principal place of business at 716 N. Country Club Rd. in Tucson, Arizona 85716, its successors and/or assigns.
1.12. “Licensor Customer Portal” means the online website through which Licensee may provide shipping and billing information to Licensor, access information about the Product, and other information associated with the Agreement.
1.13. “Party” or “Parties” means Licensor and Licensee individually and collectively, respectively.
1.14. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
1.15. “Personal Information” shall mean the personal information that identifies an individual protected under applicable Data Protection Laws.
1.16. “Practices” shall mean the dental, endodontic, or periodontic practices or other entity or entities identified in the Agreement for which access to the Product is granted to Licensee.
1.17. “Product” shall mean the Software together with the Devices provided to Licensee on which the Software operates.
1.18. “Software” shall mean the software developed by Licensor for facilitating crown restorations and made accessible by Licensor to Licensee under the Agreement or otherwise.
1.19. “Subscription Period” shall mean all times during which Licensee is granted access to the Product.
1.20. “Third Party” means any Person other than Licensee or Licensor.
1.21. “Trade Laws” shall mean the various laws maintained by the U.S. and other governments to regulate exports and imports of goods, services, and technology, including the Export Administration Regulations maintained by the U.S. Commerce Department, the economic sanctions regulations maintained by the U.S. Treasury Department, and Executive Orders and other formal directives and notices issued by the U.S. government in order to prevent trade and transactions with particular countries, entities, individuals and other designated parties.
1.22. “Upgrades” shall mean any updated version, feature, or functionality of the Product as may become available, and as may be offered by Licensor to Licensee for purchase.
1.23. “U.S.” means the United States of America and its territories.
2. RESTRICTIONS ON GRANT OF LICENSE
2.1. No Sublicense Rights. End User does not have the right to sublicense the Product or any portion or component thereof, or any of Licensor’s intellectual property rights granted hereunder, or any other rights or obligations under the Agreement, in whole or in part, to any other Third Party, including any of End User’s affiliated, related, or subsidiary companies or organizations. End User shall not attempt to sublicense the Product or any portion or component thereof, in whole or in part, to or for use in any practices or other business not identified in the Agreement. Authorized Users shall have the right to access and use the Product in connection only with operations of the Practices at which said Authorized Users is employed.
2.2. Nonexclusive License. The grant of a limited license under the Agreement is non-exclusive, and Licensor may grant additional licenses to any other Third Party(ies) of Licensor’s choosing at any time.
2.3. Retained Rights. End User acknowledges that the Product contains Confidential Information and valuable trade secrets proprietary to Licensor. Licensor retains all rights including, but not limited to, the rights to access, use, make, sell, and import the Product at any time. The Product, including but not limited to the Devices and Software, is and shall remain the property of Licensor and any rights not expressly granted herein are reserved and retained by Licensor. The rights granted by Licensor to End User (if any) constitute a license (not a sale), and Licensor shall retain sole and exclusive ownership of the Product and all intellectual property rights arising out of the Product.
2.4. Enforcement. End User does not have the right to enforce any intellectual property or other rights associated with the Product at time unless expressly authorized by Licensor in a separate written agreement. End User shall promptly inform Licensor if End User becomes aware of any unauthorized use or disclosure of the Product.
2.5. Limits on Grant; Restrictions. The limited license provided under the Agreement applies only to Licensee and Authorized Users at the Practices, and neither those Parties nor any other End User shall access or use the Product. The Agreement does not transfer to Licensee any rights other than the right to use the Product. End User agrees not to and agrees not to permit any Third Party to: (i) make or distribute copies of or reproduce the Product; (ii) rent, lease, lend, sell, sublicense, assign, distribute, re-distribute, display, publish, transfer, or otherwise make available the Product (or any component of the Product, or any login criteria for accessing the Product) to any person (except as explicitly provided in the Agreement), including on or in connection with the internet or any time-sharing, service bureau, subscription software, cloud, or other technology or service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Product or any part of it; (iv) modify, translate, adapt, or create derivative works or improvements, whether patentable or not, of the Product; (v) remove, disable, circumvent, override, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Product, or to otherwise interfere with the Product; (vi) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Product; (vii) infringe any copyright, patent, right of privacy, right of publicity, trademark, trade secret, or other right of Licensor or any Third Party; (viii) abuse, defame, harass, or stalk any individual or other user of the Product; (ix) interfere or attempt to interfere with, or damage or attempt to damage, the Product or the proper working of the Product, including without limitation through the use of cancel bots, forged routing or electronic mail address information, harmful code, packet or IP spoofing, phishing, Trojan horses, viruses, or similar methods or technology; (x) use any deep-link, page-scrape, robot, spider, or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Product or any portion of it, or in any way reproduce or circumvent the navigational structure of the Product, to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Product; (xi) purposely misrepresent the Authorized User’s identity, provide false information, impersonate another Person, misrepresent the Authorized User’s affiliation with a Person, including without limitation, Licensor, create or use a false identity, or attempt to use another Authorized User’s account; (xii) probe, scan, or test the vulnerability of the Product or any network connected to it; (xiii) access or use the Product for purposes of benchmarking, development of a competing product, or competitive analysis or use of the Product; (xiv) use the Product in or in association with the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems; aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; any safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems; and any military or aerospace applications, weapons systems, or environments; and/or (xv) otherwise use the Product other than as authorized herein. No copies of the source code of the Software will be made available to End User.
2.6. Upgrades. Licensee acknowledges and agrees that Licensor has no obligation to provide any Upgrades or to enable any particular features or functionality in the Product. Upgrades to the Product may be offered to Licensee for purchase as they become available during the Subscription Period. All Upgrades shall be deemed to be part of the Product and subject to the terms and conditions of this Agreement.
3. INTELLECTUAL PROPERTY
3.1. Ownership of Product. End User acknowledges that the Product contains intellectual property owned by Licensor or its licensors. Subject to the limited license to access and use granted under the Agreement and any other licenses expressly granted by Licensor, Licensor or its licensors shall own all right, title, and interest in the Product, including any patents, copyrights, trademarks, service marks, designs, trade secrets and other proprietary rights and information related thereto, and in all derivative works, enhancements, Upgrades, translations, corrections, and new versions of the Product, including, without limitation, any derivative works, enhancements, Upgrades, translations, corrections and new versions of the Product resulting from Feedback. End User hereby assigns to Licensor on its behalf, and on behalf of its Authorized Users, employees, representatives, customers, contractors, affiliates, and/or agents, all right, title, and interest in and to the Feedback, and Licensor is free to use, without any attribution or compensation, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.
3.2. Copyright Rights. Licensor or its licensors shall own all copyright rights associated with the Product, including the rights to make copies of or to reproduce the Product; to distribute the Product or otherwise transfer ownership by rental, lease, or lending; to create derivative works of the Product; or to publicly display the Product.
3.3. Patent Rights. Licensor or its licensors shall own all patent rights in the Product and any improvements thereto, made at any time, and End User shall not file any patent applications related to the Product or any improvements thereto at any time. End User agrees that it shall assign and hereby does assign any intellectual property rights related to the Product that it develops or invents at any time to Licensor. Licensor shall retain the right to file and prosecute, and shall own, all patent applications associated with the Product.
3.4. Trademark Rights. Licensor or its licensors shall own all trademark and service mark rights associated with the Product, including the brand name AlphaByte™ and all associated graphics and logos. End User shall not use the names, trademarks, service marks, copyrights, or photos of the embodiments of the Product or associated components or products, except as otherwise allowed in the Agreement, without the express written permission of Licensor.
3.5. Trade Secret Rights. End User acknowledges that Licensor considers and treats the Product and all portions thereof as a trade secret, and Licensor owns trade secrets associated with the Product. In the event End User is exposed to such trade secrets, End User agrees to keep such trade secrets confidential both during and after the Subscription Period. End User’s duty to maintain the confidentiality of Licensor’s trade secret information shall survive any expiration or termination of the Agreement.
3.6. No Reverse Engineering. End User shall not directly or indirectly reverse engineer or attempt to reverse engineer, at any time, any portion or component of the Product or any associated Device components or products provided to or made accessible to End User. End User shall not assist or otherwise aid any Third Parties in reverse engineering the Product or any associated components or products at any time.
3.7. Notice of Unauthorized Use or Infringement. In the event End User learns of any unauthorized use of the Product, or unauthorized access to the Product, or any potential infringement of any intellectual property rights owned by Licensor, End User shall provide prompt written notice of such activity to Licensor within three (3) days of becoming aware of the activity.
3.8. Customization. In the event Licensee requests certain enhancements to the Product, including but not limited to the branding of the Devices with End Licensee’s trademarks or trade names, Licensee shall not infringe on the intellectual property rights of any Third Party in doing so. Licensee shall retain the rights to any such intellectual property, including but not limited to trademarks, and Licensor shall use such intellectual property only for the purposes of providing the requested enhancements.
4. CONFIDENTIALITY
4.1. Confidential Information; Non-disclosure. The relationship between the Parties under the Agreement is a confidential one, requiring the exercise of caution, discretion, and good faith in the use of information concerning the Product. Each Party agrees that it shall hold the other Party’s Confidential Information in the strictest confidence and shall not disclose such Confidential Information to any Person (other than its own employees, contractors, or agents who must have such information for the performance of their obligations under the Agreement), unless authorized in writing and signed by the other Party. Each Party shall inform all authorized recipients to whom it discloses the other Party’s Confidential Information including without limitation Authorized Users of the confidentiality obligations of the Agreement and shall ensure that such recipients comply with and are contractually bound by such obligations or obligations substantially similar thereto.
4.2. Non-disclosure. Without prior written permission from Licensor, End User shall not disclose or share with any other Third Party, at any time, any Confidential Information including, but not limited to, any idea, concept, data, document, hardware device, user interface, screen shot, drawing, or other information, in tangible or intangible form, concerning the Product, its operation or its uses. End User shall implement and maintain safeguards to protect the Product against unauthorized access, disclosure, or use using measures that are at least as protective of the Product as they are of End User’s own similar information, but not less than commercially reasonable measures. The confidentiality obligations under this EULA shall survive in perpetuity.
4.3. Breach of Confidentiality. Each Party acknowledges and agrees that the Confidential Information constitutes valuable proprietary property of the other Party and that the other Party may suffer irreparable harm which may not be capable of adequate compensation by means of damages alone if unauthorized Third Parties access or use Confidential Information, or if Confidential Information is used other than as strictly necessary for the performance of the Agreement. Each Party agrees that if any Confidential Information is disclosed or used (or threatened to be disclosed or used) in breach of the Agreement, then the Party to whom such Confidential Information belongs will have, in addition to any other remedies available to it, the right to seek equitable relief (including but not limited to specific performance and injunction), without the need to show irreparable harm or post a bond. Upon a breach of the confidentiality provisions of the Agreement, Licensor may immediately terminate the Agreement and cease Licensee’s access to the Product, and Licensee agrees to return all Devices and Software in its possession to Licensor, and to pay damages for such breach proportionate to the severity of the breach.
4.4. Login Information. Login information, including usernames and passwords for accessing the Product, are to be treated as Confidential Information. Licensee shall not share any login information for electronically accessing the Product with any Third Party and shall be responsible for all activities that occur under its login information including the acts or omissions of its Authorized Users.
4.5. Employees. Licensee shall take all reasonable measures to prevent its employees from breaching the confidentiality provisions of the Agreement.
4.6. No Prior Development. Licensee hereby agrees that it has not previously, and is not currently, developing any products similar to the Product.
4.7. Availability to Third Parties. Licensee shall maintain the confidentiality of the Product at all times and shall not demonstrate or otherwise make the Product, access to the Product, or any features or components of the Product, including Devices, available to any Third Parties at any time, especially to representatives or agents of any other software/product development companies or organizations.
4.8. Tutorial Information. Licensor may make available to Licensee training information such as books, papers, videos or audio recordings, or web-based access to such materials, demonstrating how to use the Product. Licensee hereby agrees that all training information shall be treated as Confidential Information, and End User further agrees that all training information is subject to the confidentiality provisions of the Agreement.
5. DATA
5.1. Data. All Data generated that is stored on Licensor’s servers and/or on servers operated, used, or maintained by Licensor shall remain available to Licensor at all times. During the Subscription Period, Licensor shall allow electronic access to the Data to Licensee as provided in the normal operation and functionality of the Product.
5.2. Data Loss. During the course of the Agreement, Data may be generated by End User and stored on one or more Data storage servers or other memory devices operated by a Third Party provider at Licensor’s sole and absolute discretion. Due to events outside of Licensor’s control, some or all of the Data may become damaged or destroyed. Licensor shall not be liable for any such damage or destruction of Data, and such loss or damage shall not be a breach of the Agreement.
5.3. Data Backup. Licensor shall provide off-server backup of Data at a data storage location of Licensor’s choosing. Data backup shall take place at intervals of no less than once every 24-hour period.
5.4. Data Recovery. In the event that any Data is lost or damaged during the Subscription Period by no fault of Licensee, to the extent practicable, Licensor may make available to Licensee the most recent available Data backup directory for recovery of the Data. Licensee shall be responsible for all costs associated with recovery of lost Data.
5.5. Right to Copy, Use and Manipulate Data. Except as set forth herein or otherwise prohibited by any Data Protection Law, Licensor shall have unlimited and unrestricted rights to make copies of and to use all Data uploaded by End User or otherwise created or stored by End User on Licensor’s servers and/or on servers operated, used, or maintained by Licensor as required to allow for operation of the Product. Licensor has a legitimate business interest in reviewing and analyzing the use, reliability, and efficacy of the Product. Licensor may use in perpetuity all Data created or stored by End User on Licensor’s servers and/or on servers operated, used, or maintained by Licensor, with the exception of uploaded Licensee documents or forms, to compile statistical information related to use, reliability, efficiency, and/or cost of products or services used in the dental industry for purposes of developing reports to be supplied to customers for budgeting and planning purposes or to manufacturers for quality assessment, provided the Data and statistics shall only be reported or disclosed in a generic fashion and without identifying the Licensee or a natural person. End User hereby expressly consents to the foregoing use of Data and acknowledges and agrees that Licensor is the sole and exclusive owner of such derived Data.
5.6. Post-Subscription Data Retrieval. In the event that Licensee seeks access to stored Data after the Subscription Period ends, Licensor shall make such Data or access to such Data available (except to the extent prohibited by Data Protection Laws) at a charge for Licensor’s services up to ninety (90) days after the Subscription Period ends. Licensor is under no obligation to provide any Data or access to any Data to Licensee at any time beyond ninety (90) days after the end of the Subscription Period.
5.7. Data Retrieval Fees. Licensor may charge a fee for providing Data or access to Data to End User after the Subscription Period ends. Data, or access to Data, provided by Licensor after the Subscription Period ends may be provided in any format to be chosen by Licensor, including in a native digital format or a paper format, or a combination thereof. In the event documents or Data are provided in paper format, the cost to Licensee shall be no less than twenty cents ($0.20) per page. Licensor is under no obligation to reformat retrieved Data from any native digital format.
5.8. Data Access. Licensee may access and backup stored Data at any time during the Subscription Period. Licensor is under no obligation to provide any copies of stored Data other than providing access to Data in accordance with normal use and functionality of the Product. Licensor may temporarily suspend access to Data during the Subscription Period at its sole and absolute discretion as necessary to prevent or limit damage or loss to Data or to the Product such as during power outages, virus/malware/hack attempts or infections, server shutdowns, or any other threats to the Data or to the Product. Licensor shall not be liable for any loss of Data or loss of access to Data due to a network failure or connectivity problem at any Practices. Licensor shall not be responsible for any interruption in access to the Product or Data due to the unavailability of the server or cloud applications, including but not limited to, any regularly scheduled or emergency maintenance periods.
5.9. Data Reports. For an additional fee, and at Licensee’s written request, Licensor may prepare and distribute to End User paper or electronic reports of any Data uploaded or otherwise created or stored on Licensor’s servers and/or on servers operated, used, or maintained by Licensor, including Data uploaded or created by Licensee.
5.10. Licensee Uploaded Documents. Some modules of the Product may include an electronic document storage system that allows Licensee to upload existing documents to Licensor’s servers and/or on servers operated, used, or maintained by Licensor as part of the Subscription. Licensee shall own all such documents, and Licensee may remove such documents at its discretion. While such documents are stored on Licensor’s servers and/or on servers operated, used, or maintained by Licensor under the Agreement, Licensor shall have access to the documents as required for providing operation of the Product. Licensor may not duplicate such documents or share such documents with Third Parties or use such documents for any purpose other than for providing operation of the Product without Licensee’s written authorization. If Licensee wishes to access, download, or delete such documents after a Subscription Period ends, Licensee must provide Licensor with written notice seeking access to the document storage system. Licensor shall provide such access upon receipt of a written request for a period of up to ninety (90) days after a Subscription Period ends.
5.11. Licensee Identification Data. Subject to Licensor’s right to disclose Data that identifies Licensee to Third Parties who provide services to Licensor and subject to applicable laws and orders, Licensor must obtain written authorization from Licensee before making any disclosure of Data that allows identification of Licensee that is stored on Licensor’s servers and/or on servers operated, used, or maintained by Licensor under the Agreement.
5.12. Protection of Data. Licensor will use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards designed to (a) prevent unauthorized access, use or disclosure of Data (including during storage, transmission and disposal), (b) protect against any anticipated threats or hazards to the security or integrity of Licensor’s servers and/or servers operated, used, or maintained by Licensor as part of the Product, and (c) ensure proper, secure and lawful storage, transmission and disposal of the Data.
5.13. Prohibited Data. Licensee shall not upload or create in the Product or cause to be stored on any of Licensor’s servers or data storage devices, or any servers or data storage devices maintained, used, or operated by Licensor, any Data or other content that: (a) violates any state, federal, national, or international law or that violates any Third Party right; or (b) is defamatory, obscene, abusive, threatening, harassing, or otherwise offensive or objectionable, or which encourages conduct that would be a criminal offense, give rise to civil liability, violate any law or right of privacy or publicity, or is otherwise inappropriate. In the event that Licensee uploads or causes to be created, copied or stored on any of Licensor’s servers or data storage devices, or any servers or data storage devices maintained, used or operated by Licensor, any Data that falls within (a) or (b) above, Licensee shall fully indemnify Licensor in any legal action against Licensor by any Third Party, including the payment of attorney fees for defending the action.
5.14. Limiting Personal Information. Licensee shall not upload, create in the Product, or cause to be stored on any of Licensor’s servers or data storage Devices, or any servers or data storage Devices maintained, used, or operated by or for Licensor any Personal Information unless necessary to do so and unless Licensee complies with the representations and warranties set forth herein with respect to such Personal Information. Licensee shall train its Authorized Users to comply with the foregoing obligation.
5.15. Processing Personal Information. By uploading or creating in the Product or causing to be stored on any of Licensor’s servers or data storage Devices, or any servers or data storage Devices maintained, used, or operated by or for Licensor, any Personal Information of an Authorized User, guest of any Practices, or Personal Information of any other natural person, Licensee requests Licensor to process such Personal Information. Under such circumstances, Licensee is the data controller of such Personal Information under applicable Data Protection Laws and with respect to all such Personal Information, Licensee represents and warrants that Licensee: (a) has obtained express, informed, written consent from the individual whose Personal Information is to be processed to transfer such Personal Information to Licensor, outside the European Economic Market, and to the U.S. and other countries as and when required by Data Protection Laws; (b) has implemented appropriate technical and organizational measures to ensure and demonstrate that processing is performed in accordance with applicable Data Protection Laws; (c) has implemented appropriate data protection policies proportionate to data processing activities in accordance with applicable Data Protection Laws; (d) relies on one or more of the following bases for authorization to process Personal Information for the duration and purposes of the Agreement when such basis is required under applicable Data Protection Laws: (i) consent from the individual whose Personal Information is to be processed that has been given freely, specifically for the processing requested of Licensor, and unambiguously through an affirmative act after being fully informed with clear and plain language; (ii) contractual obligation between Licensee and the individual whose Personal Information is to be processed; (iii) legal obligation that requires processing of the Personal Information; and (iv) for Licensee’s legitimate interests (after confirming that the rights and freedoms of the individuals whose Personal Information is processed are not seriously impacted); (e) has provided the individuals whose Personal Information is to be processed with information about who is processing their Personal Information and why as and when required by applicable Data Protection Laws; (f) has not received a request from any of the individuals whose Personal Information is to be processed to remove such Personal Information from Licensee’s files and that Licensee will notify Licensor if Licensee receives such a request if and to the extent it would affect Licensor’s processing activities for Licensee; (g) has not received a request from any of the individuals whose Personal Information is to be processed to correct such Personal Information as provided to Licensor since it was provided to Licensor and that Licensee will notify Licensor if Licensee receives such a request if and to the extent it would affect Licensor’s processing activities for Licensee; and (h) has confirmed the individuals whose Personal Information is to be processed are Authorized Users, guests of Licensee, or otherwise related to Licensee. Licensee authorizes Licensor to subcontract some or all of its services to a Third Party under the Agreement. In addition to its indemnification obligations set forth elsewhere in the Agreement, Licensee agrees to indemnify, defend, hold harmless, and reimburse Licensor and its owners, directors, officers, employees, agents, and representatives from and against any and all damages, liabilities, fines, penalties, awards, judgments, settlement amounts, deficiencies, losses, costs, expenses (including without limitation attorneys’ fees and disbursements of counsel) arising out of or related to any Third Party claim based on an actual or alleged breach of the foregoing covenants, representations, and warranties or any violation of a Data Protection Law by Licensee.
6. REPRESENTATIONS AND WARRANTIES
6.1. Maintenance. Licensor shall use reasonable efforts to provide and maintain access to the Product during the Subscription Period.
6.2. Limited Warranty. Licensor warrants to Licensee that:
6.2.a. The Products provided hereunder shall comply with ISO 13485 standards. The Products shall be free from material defects in workmanship during the Subscription Period. Licensor further perpetually warrants that the use of the product by Licensee shall not constitute an infringement of the intellectual property rights or proprietary rights of any Third Party.
6.2.b. Any warranty claim(s) made by License under Section 6.2.a. shall first be submitted to the Device manufacturer. Any claims not covered by the Device manufacturer may then be submitted to Licensor, but only during the Subscription Period. Any claim timely submitted by Licensee, and accepted by Licensor, which results in repair/replacement costs exceeding $500 shall be payable by Licensor; however, Licensee acknowledges, understands, and agrees that it shall be responsible to pay up to $500 (the “Deductible”) for each claim made under this Section 6.2 and that Licensor shall have no obligation to repair/replace the Device unless and until the Deductible is paid by Licensee to Licensor. The return shipment of repaired Products by Licensor to Licensee shall be at Licensee’s expense.
6.2.c. Licensor shall have no liability with respect to any defect in the Products arising from (i) Licensee induced defect, (ii) Licensee induced cosmetic defect, (iii) defect due to failure to follow Licensor’s written instructions, and/or (iv) failure to store, install, maintain, and use the Products in the proper environment with reasonable care.
6.3. Warranty Limitations. The warranties under Section 6.2 do not apply where the Devices have been: (a) subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Licensor; (b) reconstructed, repaired, or altered by Persons other than Licensor or a Person approved by Licensor; (c) used with any Third Party product, hardware or software, that has not been previously approved in writing by Licensor; and/or (d) purchased from an any Third Party. Under no circumstances shall Licensor be obligated to replace any Device more than two times during the Subscription Period.
6.4. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 6.2 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PRODUCT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND WARRANTIES THAT MIGHT ARISE OUT OF A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. LICENSOR MAKES NO WARRANTIES WITH REGARD TO THE ACCURACY, COMPLETENESS, QUALITY, TIMELINESS, OR ACCESSIBILITY OF ANY INFORMATION SUPPLIED, OR IN CONNECTION WITH THE PRODUCT. LICENSOR DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED, OPERATIONAL, SECURE, VIRUS-FREE, OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. LICENSOR DOES NOT WARRANT THAT THE PRODUCT OR HARDWARE WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE PRODUCT WILL OPERATE IN COMBINATION WITH ANY OTHER PRODUCT OR PROGRAMS SUPPLIED BY LICENSEE OR ANY THIRD PARTY. LICENSOR MAKES NO WARRANTIES OR GUARANTEES REGARDING THE OPERATION OF THE PRODUCT ON OR WITH HARDWARE DEVICES USED BY LICENSEE AND NOT SUPPLIED BY LICENSOR, AND LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGES THAT MAY BE INCURRED BASED ON USAGE OF THE PRODUCT WITH HARDWARE DEVICES BY LICENSEE OR END USER.
7. INDEMNIFICATION
End User shall, at its own expense, defend, indemnify, and hold harmless Licensor and its respective affiliates, officers, directors, and employees, from and against any and all claims, judgments, investigations, losses, costs, awards, expenses (including reasonable attorneys’ fees) and liability of any kind arising out of or relating to any claim with respect to: (a) End User’s (including its Authorized Users, employees, contractors, and agents) breach of the Agreement or violation of any law; (b) negligence, gross negligence, or willful misconduct of End User; (c) any Data; (d) End User’s use or misuse of the Product; and/or (e) any claims of infringement of a Third Party’s intellectual property rights arising from (i) the use of the Product by End User in combination with products, services, products, data, or systems not provided or approved by Licensor, (ii) any modification or enhancement not provided or authorized by Licensor, and/or (iii) unauthorized use of the Product in breach of this EULA by End User.
Upon being notified of any Third Party claim relating to violation of Third Party rights, in addition to Licensee’s rights and remedies provided elsewhere in the Agreement, Licensor shall at its sole option use good faith efforts to provide for one of the following: (a) defend through litigation or obtain through negotiation the right of Licensee to continue using the Product; (b) modify the Product so as to make it non-infringing while preserving the original functionality, or (c) replace the Product with a functionally equivalent alternative. Notwithstanding the foregoing, Licensor shall have no obligation to provide any of the foregoing in the event such Third Party claim relating to violation of Third Party rights would not have arisen but for Licensee’s use of the Product in combination with products, services, software, data, or systems not provided by Licensor, any modification, not provided or authorized by Licensor, or unauthorized use of the Product in breach of the Agreement by Licensee. Licensee shall provide to Licensor a copy of any such correspondence including such notice of any Third Party claim based on Licensee’s access or use of the Product within fourteen (14) days of Licensee’s receipt of such notice.
8. LIMITATION OF LIABILITY
8.1. Exclusion of Damages. LICENSOR HAS NO LIABILITY WITH RESPECT TO THE PRODUCT, SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY LOST PROFITS OR REVENUES OR FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF DATA, AND THE COST OF COVER) HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LICENSOR OR ITS LICENSORS, SERVICE PROVIDERS, AND SUBCONTRACTORS ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO LICENSOR BY LICENSEE UNDER THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.3. Assumption of Risk. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, END USER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED IN THE USE OF THE PRODUCT IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS, OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY LICENSOR, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCT.
9. EXPORT REGULATION AND U.S. GOVERNMENT RIGHTS
9.1. The Product may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. End User shall not, directly or indirectly, export, re-export, or release the Product to, or make the Product accessible from, any jurisdiction or country to which the export, re-export, or release is prohibited by law, rule, or regulation (including but not limited to any U.S.-embargoed countries, to anyone on the U.S. Treasury Department’s Specially Designated Nationals List, or the U.S. Department of Commerce Denied Persons List or Entity List). End User shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Product available outside the United States.
The Product is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Any End User who is an agency of the U.S. Government, or any contractor therefor, shall receive only those rights with respect to the Software as are granted to all other Clients under the Agreement, in accordance with (a) 48 C.F.R. §§ 227.7201-7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government licensees and their contractors.