Terms of Service

  • 1.1 “Activation Date” shall be the date on which the Licensee is delivered an activation key or similar device which may include just a login name, and password from Novadontics to use the Novadontics Software which is also referred to herein as “Cloud Programs”.
  • 1.2. “Licensee Data” means information entered into the Cloud Programs by Licensee in the course of its authorized access and use of the Cloud Programs, which are stored on the Cloud Server for access and retrieval by the Licensee.
  • 1.3. “Cloud Server” shall mean one or more server(s) provided by Novadontics or its agent through which Licensee accesses the Cloud Programs, identified by a URL and one or more accounts and passwords to be established by Licensee.
  • 1.4. “Cloud Programs” shall mean the computer software in object code or other form owned or provided by Novadontics for which Licensee has Subscription Rights granted pursuant to the Agreement, updates and upgrades to the Cloud Programs, and online documentation. In most instances, the Cloud Programs will reside on the Cloud Server.
  • 1.5. “Provider” shall include: (1) each owner, employee, contractor or agent of Licensee that has a State Dental License; and (2) each owner, employee, contractor or agent of Licensee that has a State Hygiene License and can provide dental patient services unsupervised by a Provider with a State Dental License. It does not include a provider such as hygienists or assistants that provide care under the direction and billed under a unique Tax ID of a licensed Dentist. Other medical supporting staff are also not considered Providers such as billers, scheduling clerks, dental assistants, technicians (lab, radiology, etc.), and case managers. A Provider as defined above typically has a physician-level medical license, including, but not limited to, the following professional designations: DMD, DDS, MD, and Ph.D.
  • 1.6. “Services” shall mean Cloud Services, Electronic Services, Customer Support Services or other services specifically identified in Subscription Agreement or other agreement.
  • 1.7. “Mobile App” shall mean any Novadontics provided application that may reside on a mobile device such as an iPad or iPhone that provides a user interface for using the Cloud Programs or other associated programs. Alternatively, a “Mobile App” shall mean a Cloud Program configured to enable operation on a mobile device.
  • 1.8. “Update” shall mean minor extensions to the supplied functionality and/or replacement of the manner of functioning of a supplied functionality by a newer functionality which has improved characteristics, but which does essentially retain the original functional scope and/or implements it differently.
  • 1.9 “Upgrade” shall mean an extension of the Software feature set.
  • 2.1. Subscription Rights Granted A. Novadontics grants to Licensee a limited, non-exclusive, non-sub-licensable, non-transferable right (“Subscription”) for the number of Providers defined in the Novadontics Subscription Agreement. If not otherwise specified in the Subscription Agreement, the License includes an unlimited number of desktop version users at a single geographical location under control of the Licensee and up to 3 iPad or iPhone version users. Licensee shall ensure that each licensed user shall have their own password and that each licensed user shall not share their password with unlicensed or unauthorized users. Licensee shall be entitled to use the Cloud Programs as follows: (i) to assign access rights to the Cloud Programs on the Cloud Server solely for Licensee’s own internal business operations; and (ii) to use any documentation provided with the Cloud Programs (online or otherwise) in support of Licensee’s authorized use of the Cloud Programs. Licensee or any of their agents shall not reverse engineer, modify or otherwise create derivative works of the Cloud Programs, remove any proprietary notices or access the Cloud Programs or copy any of the Cloud Program features, functions or user interfaces. Licensee shall not permit or facilitate any third party in being able to reverse engineer, modify or create derivative works of the Cloud Programs, to remove any proprietary notices or to access the Cloud Programs or copy any of the Cloud Program features, functions or user interfaces. In addition to the foregoing, Licensee shall not allow third parties to access or view the Cloud Programs, for any other purpose other than the internal business use purpose intended herein. B. Licensee shall not download the Cloud Programs or cause or permit the reverse engineering, disassembly, decompilation, or any other action on the Cloud Programs to discover or reproduce the source code or underlying algorithms of such Cloud Programs. Licensee shall not use the Cloud Programs in any manner not authorized under this Agreement. C. Novadontics reserves and retains all right, title, interest in and to copyright, and other common law or statutory proprietary rights in the Cloud Programs and Services delivered under this Agreement, including all related intellectual property rights (collectively, the “Novadontics Intellectual Property Rights”). Licensee acknowledges that it does not acquire any rights, express or implied, in the Cloud Programs, other than those specified in the Agreement, and shall take no action, nor permit or facilitate any third party in taking such actions, against Novadontics’s Intellectual Property Rights. D. In addition to any other rights or remedies Novadontics may have under this Agreement to protect itself and the Novadontics Intellectual Property Rights, Licensee shall indemnify Novadontics for any and all losses, damages or expenses it incurs as a result of Licensee’s breach, or threatened breach, of any of its obligations under this Section 2.
  • 2.2. Verification. Novadontics shall have the right to monitor use of the Cloud Programs by Licensee: (i) electronically at any time; or (ii) by on-site audit of Licensee’s use of the Cloud Programs not more than once per year upon reasonable advance, written notice to Licensee. Should Novadontics discover underpayments in the amounts owed it under the Agreement, Novadontics shall have the immediate right to invoice Licensee and receive payment for such additional amounts owed.
    • 3.1 Hosting Services. Novadontics will provide Licensee with access to the online Cloud Programs selected in the Novadontics Subscription Agreement and will provide for the storage and retrieval of Licensee Data in connection with use of the Cloud Programs. Licensee is responsible for obtaining adequate broadband access to the Internet using software and hardware that meet the minimum requirements, including security requirements and high speed bandwidth requirements that may be published and updated from time to time at www.novadontics.com.
    • 3.2 Access. Licensee shall designate user account names and passwords (“Access Credentials”) for the number of Providers and for additional permitted non-Provider users associated with authorized Providers. In the event that Licensee designates Access Credentials to Providers not stated or authorized under a Novadontics Subscription Agreement, Licensee agrees that by doing so, it shall incur additional subscription and Services fees at current Provider rates. Licensee is solely responsible for the confidentiality and use of the Access Credentials. Novadontics will deem any communication, data transfer, or use of the Cloud Programs received under Licensee’s Access Credentials to be for Licensee’s benefit and use. Licensee agrees to notify Novadontics if the Access Credentials are lost, stolen, compromised or being used in an unauthorized manner, and to indemnify Novadontics for any losses, damages or expenses it incurs as a result of any unauthorized use of Licensee’s Access Credentials. Licensee represents and warrants that it has the rights to all Licensee Data, including the right to upload Licensee Data to the Cloud Server in connection with its authorized use of the Cloud Programs. Licensee agrees that the Licensee Data and its use do not infringe or misappropriate the rights of any third party and agrees to indemnify and holds Novadontics harmless from any third-party claims of infringement or misappropriation under the same terms and conditions set forth below for Novadontics’s infringement indemnity.
    • 3.3 Data Security. Licensee agrees to access the Cloud Programs and to store and retrieve data using only Novadontics approved third party software. Should Licensee elect to use unapproved third party products or services, any exchange of data between Licensee and such third party provider is solely between Licensee and the applicable third party vendor or provider. Novadontics does not warrant third party products or services, whether or not they are designated by Novadontics as “approved” or otherwise. Novadontics will provide limited support for approved third party software. No purchase of third party products or services is required to use most functions of the Cloud Programs. Licensee acknowledges that its ordering of certain services will, by the nature of the service being provided, require the sharing by Novadontics of patient protected health information (“Patient PHI”) with vendors to provide the service, and Licensee consents to the sharing of its Patient PHI if it orders that service. Novadontics Cloud Program is optimized currently for Google Chrome, Apple Safari, and Mozilla Firefox browsers only. Further note that the mobile App program is only available for iOS devices only. Information on compatibility with other operating systems or programs will be periodically updated at www.Novadontic.com.Novadontics agrees to maintain the security of Licensee Data using industry-standard data security protocols, and other methods reasonably deemed to be adequate for secure business data and to comply with the provisions of Exhibit A the HIPAA Business Associate Agreement Addendum. Novadontics agrees to retain Licensee Data on a secure server and to maintain data recovery and data backup facilities in accordance with accepted industry practices.
    • 3.4 Ownership of Data and Subscription. Licensee shall retain ownership of all Licensee Data stored or retrieved in connection with use of the Cloud Programs, which data shall be subject to the confidentiality provisions set forth below. Licensee agrees that storage or caching of Licensee Data is not an infringement of any intellectual property rights of Licensee. Licensee agrees that it will not store data on the Cloud Server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties, and shall indemnify Novadontics for any losses, damages or expenses it incurs as a result of Licensee’s failure to obtain such authorizations. Licensee agrees that Novadontics may utilize data that comes into the possession of Novadontics by virtue of its performance under this Agreement for the purpose of aggregating statistics that may be helpful for Licensee’s or Novadontics’s benefit, for research and trend analysis, and for other lawful purposes, as determined by Novadontics. Provided that Novadontics implements appropriate de-identification criteria in accordance with the Standards for Privacy of Individually Identifiable Health Information set forth in 45 C.F.R. §164.514(b), Licensee acknowledges and agrees that de-identified information is not Protected Health Information as defined in the applicable regulations and that Novadontics may use such de-identified information for any lawful purpose.
    • 3.5 Customer Support Services. Novadontics will provide Customer Support Services in accordance with policies available at www.Novadontics.com in effect on the date Customer Support Services are provided, so long as Licensee is currently entitled to use the Cloud Programs and Services. Particular versions of Google Chrome, Apple Safari, Mozilla Firefox, Apteryx (the X-ray software Novadontics is integrated with), Change Healthcare for electronic insurance billing, and DoseSpot are some third party products that may receive some limited support as it interfaces the Cloud Programs of the Mobile App. Again, Novadontics does not warrant third party products or services, whether or not they are designated by Novadontics as “approved” or otherwise. Novadontics may provide Updates to the Cloud Programs or Mobile App at such time and in such way as Novadontics at its own discretion deems appropriate. The Cloud Programs shall not include the provision of Upgrades and other modified versions of the Cloud Program unless specifically included in writing under the Novadontics Subscription Agreement.
    • 3.6 Electronic Services. In connection with use of the Cloud Programs, Novadontics may provide certain Electronic Services to Licensee, as set forth in the applicable Order Form(s), in conjunction with one or more third-party partners, and Licensee hereby waives any and all liability and claims which Licensee may have against Novadontics or the partner in connection with the provision of Electronic Services except to the extent directly caused by the willful misconduct or gross negligence of Novadontics or the partner. Electronic Services may include services to import data from other existing systems.
    • 3.7 Data Import Limitations. Licensee is responsible to provide data exactly in the format specified by Novadontics documentation. The Novadontics database resulting from import of Licensee’s data will be a reflection of the quality of data provided by the Licensee. Novadontics is not responsible for delays in or inability to perform services due to improperly formatted or corrupt files, viruses on media provided, or incompatible backup media or software. Licensee acknowledges that transferring data is subject to the possibility of human and machine errors, omissions, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. Novadontics shall not be liable for any such errors, omissions, or losses. Licensee is responsible to adopt reasonable measures to limit the impact of such problems, including backup of original data. Licensee is responsible for reviewing the accuracy of all imported data. Licensee is also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data. Note that additional fees may apply for the data transfer from existing database software or other software to the Novadontics Software in a format suitable for the Novadontics Software.
    • 3.8 Data Import Acceptance. Following a data import, Novadontics warrants the integrity of the supplied production database for a period of 5 business days from the delivery date, or until the database is altered in any way by the Licensee, whichever comes first. During the warranty period, Licensee may report any discrepancies or errors, and upon verification of the error, Novadontics may at its option correct the database or refund the amount paid for the data import service. If Novadontics is unable to replicate an error, it shall be under no obligation to take any further action under this Section.
    • 3.9 Consulting Limitations. Novadontics warrants that all consulting Services including any phone consultations are performed by trained personnel and that Services will be provided for the scope and time period indicated. However, Novadontics does not guarantee any specific results from training or other consulting Services. As with all consulting services, effectiveness depends largely upon Licensee’s ability and willingness to utilize and implement ideas, concepts, and practices presented by Novadontics consultants.
    • 3.10 Expiration of Purchased Services. All purchased Service(s) must be utilized by Licensee within 90 days from purchase (the Effective Date on the Novadontics Subscription Agreement or other subsequent agreed upon date as agreed in writing). Services not delivered in that period will be considered rendered and non-refundable, except in the event that Novadontics is unable to deliver the Services within that period.
    • 3.11 LICENSEE ACKNOWLEDGES THAT THE PROVISION OF CARE TO ITS PATIENTS IS SOLELY AND EXCLUSIVELY ITS RESPONSIBILITY AND THAT THE CLOUD PROGRAMS ARE INTENDED TO BE USED AS A SUPPLEMENT ONLY TO LICENSEE’S EXISTING PROCESSES AND PROCEDURES. LICENSEE WILL NOT RELY ON THE CLOUD PROGRAMS FOR THE PROVISION OF PROPER CARE TO ITS PATIENTS. LICENSEE’S PROCESSES AND PROCEDURES WILL BE SET UP TO ENSURE ITS PROPER FULFILLMENT OF ITS OBLIGATIONS TO ITS PATIENTS.
    • 3.12 Licensee acknowledges that all Novadontics Licensees can only order from the Vendors partnered with Novadontics through the software and that ordering through any partnered Vendor in any method outside of the software may result in denial of renewal of subscription at the renewal term. Any product that partnered Vendors offer that is not currently listed in the Novadontics software can be added by contacting Novadontics with the reference numbers.
    • 3.13 Licensee acknowledges that Novadontics, LLC, adds 5%-7% markup on all products sold through its marketplace (the “Catalog”) to cover software development and maintenance costs.
    • 3.14 Novadontics shipping terms applies to domestic shipping only. International shipping has increased charges depending on the vendor. Any charges for international shipping that Novadontics incurs will be passed to the end user and Novadontics will charge the card on file for international shipping fees.
    • 4.1 Term. The Agreement shall commence on the Effective Date and remain in effect for a period of 12 months from the receipt by Novadontics of its first subscription payment (the “Initial Term”). Thereafter, the Term shall automatically renew for additional one (1) year renewal terms (each, a “Renewal Term”, with the Initial Term and any Renewal Term together, the “Term”) at Novadontics’s then-current fees unless either party gives thirty (30) days advance written notice prior to the end of the then-current Term of its intention to terminate the Agreement, or until otherwise terminated as provided herein. If the Licensee cancels the Agreement before the end of a Term, the Licensee shall pay the remaining balance of its Term on the termination date.
    • 4.2 Termination for Cause. Either party may terminate the Agreement at any time upon thirty (30) days prior written notice if the other party commits a material breach that remains uncured after thirty (30) days written notice specifying the nature of the breach and identifying the measures required to correct the breach. Notwithstanding the foregoing, Novadontics may terminate the Agreement and/or terminate access to the Cloud Programs (i) immediately if it has reason to believe that or if Licensee has violated its obligations under Section 2 of the Agreement, and (ii) for non-payment of fees upon ten (10) days prior notice, at which time fees for the current Term shall be due and payable in full. Should Novadontics invoke this Section, it shall have the right to also terminate Licensee’s rights, or access, to any other Services then provided Licensee by Novadontics.
    • 4.3 Effect of Termination. Termination of the Agreement shall terminate Licensee’s rights to continued use of, licenses to, and access to the Cloud Programs and to any further Services. Termination shall not affect the obligation of Licensee to pay all fees that have accrued or are otherwise owed by Licensee under the Novadontics Subscription Agreement or under the Agreement, and shall not affect the right of any party to pursue a claim for breach of the Agreement which accrued prior to the date of termination. The following sections shall survive expiration or termination of the Agreement between the parties: Sections 2.1.B. and 2.1.C.; Section 5.1; Section 7, Section 8.1; Section 8.3; Section 8.5; Section 8 and any other indemnification, intellectual property or confidentiality rights or obligations provided in the TOS.
    • 5.1 Infringement Indemnity. Novadontics will defend and indemnify Licensee against a claim that the Cloud Programs infringe a valid United States copyright or patent, provided that: (a) Licensee notifies Novadontics in writing within 2 days of the claim; (b) Novadontics has sole control of the defense and all related settlement negotiations; and (c) Licensee provides Novadontics with the assistance, information and authority necessary to perform Novadontics’s obligations under this Section. In the event the Cloud Programs are held or are believed by Novadontics to infringe, Novadontics shall have the option, at its expense, to (a) modify the Cloud Programs to be non-infringing; (b) obtain for Licensee a subscription to continue using the Cloud Programs; or (c) terminate the subscription for the infringing Cloud Programs. This Section 5.1 states Novadontics’s entire liability and Licensee’s exclusive remedy for infringement.
    • 5.2 Warranties and Disclaimers
      • A. Cloud Program Warranty. Novadontics warrants that the Cloud Programs will substantially perform in accordance with the documentation for a period of thirty (30) days after the Activation Date (the “Warranty Period”), provided that (i) Licensee has a current, paid-up right to use the Cloud Programs; and (ii) Licensee’s access to the Cloud Server will meet the minimum criteria set forth in Novadontics’ System Requirements document available at www.Novadontics.com. This warranty shall not apply to issues arising from Licensee’s use of third-party software with the Cloud Programs, failure to comply with Novadontics’s instructions, including its documentation, additions or modifications to the Cloud Programs that are not approved by Novadontics or any other factors outside of Novadontics’s control. Licensee’s sole remedy during the Warranty Period is for Novadontics to repair or replace, at its sole option, the Cloud Programs upon Novadontics’ verification of any issues.
      • B. Services Warranty. Novadontics warrants that its Cloud Program Services, Customer Support Services, Electronic Services, and other Services described in an applicable Novadontics Subscription Agreement or other agreement will be performed consistent with generally accepted industry standards. C. Disclaimers. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Novadontics does not warrant that the Cloud Programs will operate in the combinations that Licensee may select for use, that the operation of the Cloud Programs will be uninterrupted or error-free, or that all Hosted Program errors will be corrected. 5.3 Exclusive Remedies. For any breach of the warranties contained in Section 5.2, Licensee’s exclusive remedy, and Novadontics’ entire liability, shall be: A. For Cloud Program Services and Electronic Services: During the Warranty Period, at Novadontics’ sole option, the correction of Cloud Program errors that cause breach of the warranty, provided Novadontics can replicate the errors. Any error not reported to Novadontics by Licensee within the Warranty Period will be deemed waived and accepted by Licensee. If Novadontics cannot reproduce the error, it will have no further obligation under this subsection. B. For all other Services: At Novadontics’ sole option, the performance of the Services provided that Licensee notifies Novadontics in writing of any defects in the Services within thirty (30) days of their performance. Any error not reported to Novadontics by Licensee within thirty (30) days of its discovery will be deemed waived and accepted by Licensee. If Novadontics cannot reproduce the error, it will have no further obligation under this subsection.
    • 6.1 Invoicing and Payment. Novadontics reserves the right to refuse to commence performance of Services if one-time Services fees have not been paid. Application Subscription Fees shall be due immediately. Subsequent fees shall be payable monthly in advance on the first or fifteenth day of each succeeding month. All other Services that are variable and dependent on actual usage are billed monthly in arrears and due upon receipt of invoice (which may be submitted electronically), which will be sent within the first 5 business days of each calendar month. An administrative late charge per invoice per month will be charged for any invoice not paid by the due date and which remains unpaid each 30 days thereafter, including any electronic transaction that is declined and any returned checks. Additionally, any amounts payable by Licensee here-under which remain unpaid after the due date shall be subject to a finance charge equal to the lesser of 1.5% per month or the maximum amount permitted under applicable law, from the due date until such amount is paid.
    • 6.2 Taxes. The fees listed in the Agreement do not include taxes; if Novadontics is required to pay sales, use, property, value-added, withholding, excise or other taxes, duties, or governmental charges based on the Subscription Rights Granted or Services provided under the Agreement or on Licensee’s use of Cloud Programs or Services, then such taxes, duties, or governmental charges shall be billed to and paid by Licensee.
    • 6.3 If Novadontics is found to be responsible for the withholding and payment of taxes on behalf of Licensee, Licensee agrees to indemnify Novadontics with respect to the full amount of taxes due together with applicable interest and penalties. If Licensee is required to withhold any tax from any payment, then the amount of the payment will be automatically increased to totally offset such tax so that the amount remitted to Novadontics, net of all taxes, equals the amount invoiced or otherwise due. This Section shall not apply to taxes based on Novadontics’s net income.
    • 7.1 General. With respect to Licensee Data, Licensee shall be responsible for compliance with all applicable United States Federal and State, local, and foreign laws and regulations, including but not limited to (i) any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, and the sending of electronic marketing messages, including the General Data Protection Regulation (GDPR), the Telephone Consumer Protection Act (TCPA), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), the Children’s Online Privacy Protection Act, and the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (HIPAA), and the sending of SMS and/or MMS text messages (including but not limited to the TCPA, Federal Trade Commission and Federal Communications Commission rules, the National DNC list registry rules, and various state laws, rules, and regulations that place restrictions on certain types of phone calls and text messages); and (ii) laws and regulations that apply to commerce, including the Federal Trade Commission Act, Fair Credit Reporting Act, and Equal Credit Opportunity Act.
    • 7.2 Responsibility for Messages. For the avoidance of doubt, Licensee is solely responsible for the information or content submitted, posted, transmitted or made available through Licensee’s use of the Services. Novadontics does not warrant the operation of third party services or products for Messages that Licensee may use for Messages. Licensee shall comply with all applicable laws and regulations relating to the sending of e-mails and/or text messages (“Messages”) and the protection of privacy and of Licensee Data. Licensee acknowledges and agrees that Novadontics does not control, does not monitor Licensee’s Messages, nor does it guarantee the accuracy, integrity, security or quality of such Messages. Licensee represents and warrants that:
      • (a) Licensee is solely responsible for Messages;
      • (b) Licensee has the legal right to use and send all Messages;
      • (c) the timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations; and
      • (d) Novadontics’ use of the Messages as directed for the purpose of delivering the Services shall not violate the rights of any third party or any laws, rules or regulations. With respect to e-mail communications sent on Licensee’s behalf, Novadontics and/or its respective affiliates or third-party service providers shall be an initiator but not a sender for purposes of CAN-SPAM and Licensee shall be deemed the sender of such messages shall be solely responsible for complying with Licensee’s obligations as a sender. With respect to text message communications sent on Licensee’s behalf, Novadontics and/or its respective affiliates or third party service providers shall be a provider but not a maker or initiator for purposes of the TCPA and Licensee shall be deemed the maker or initiator of such messages and shall be solely responsible for complying with Licensee’s obligations as a maker or initiator. Licensee agrees to only send permission-based Messages in connection with its use of the Services. “Permission-based” means that all recipients must have opted-in to receive Messages from Licensee.
    • 7.3 Consent. In addition, Licensee represents and warrants that Licensee has obtained and/or will obtain prior express consent to contact each wireless phone number Licensee has delivered to and/or will deliver to Novadontics (the “Recipient”) in connection with the provision of any Services and the intended Recipient is the current subscriber to, or the non-subscriber customary user of, the wireless phone number. If the Messages are initiated to induce the purchase of goods or services or to solicit a charitable contribution (“Solicitations”), Licensee represents and warrants that: (a) Licensee has incorporated an interactive opt-out mechanism; and (b) Licensee has, unless an exemption applies, obtained from the Recipient of any Solicitation, an express written agreement that meets the requirements of all applicable laws, including, but not limited to those set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule and Section 64.1200(f)(8) of the FCC’s Telephone Consumer Protection Act Rules. Upon request, Licensee shall provide reasonable proof of compliance with the provisions set forth in this Section and Novadontics shall have no obligation to provide Services where Novadontics reasonably believes that Licensee has not so complied. The parties agree that, where Novadontics reasonably believes Licensee may not have complied with the provisions of this Section or with all laws, rules and regulations, Novadontics may, at its option (i) scrub all numbers against any appropriate database deemed necessary to remove all wireless phone numbers and promptly notify Licensee of such action, (ii) insert an interactive opt-out mechanism and pass the resulting data to Licensee, and/or (iii) temporarily suspend Services related to the compliance concern.
    • 8.1 Nondisclosure. By virtue of the Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”).
      • A. Confidential Information shall mean all non-public information disclosed by a party to the other party, in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, or that is of value to a party, including the existence of and the terms of this Agreement. Novadontics Intellectual Property shall be the exclusive proprietary information of Novadontics.
      • B. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party as evidenced by that party’s written records.
      • C. During the Term of the Agreement and for a period of two years after its termination or expiration, each party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind but in no event less than reasonable care not to disclose or use any Confidential Information of the other party for any purpose outside the scope of this Agreement, (ii) use any Confidential Information of the other party solely to perform this Agreement or exercise rights under it, and (iii) limit access to Confidential Information of the other party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by obligations to protect the confidentiality of information that are no less stringent than those in this Agreement.
      • D. In the event that either party is requested or required for the purposes of legal, administrative, or arbitration to disclose any Confidential Information, the party receiving such disclosure request may disclose such Confidential Information provided it provides the other party within 48 hours with written notice of any such request or requirement so that such party may seek an appropriate protective order or other relief.
    • 8.2 Trademarks. Except for linking to Novadontics web sites, Licensee may not use any Novadontics logo or trademark, whether or not such mark(s) are registered, without prior written approval from Novadontics. This includes use on printed materials of any kind as well as electronic mediums such as internet web pages or email. Furthermore, the use of the Novadontics name (or any derivative thereof) in Licensee’s URL, Business Name, or the names of any add-on products or services Licensee may be offering independent of Novadontics is strictly prohibited. Additionally, using the Novadontics name in paid targeted keyword advertising campaigns on search engines is also prohibited. Novadontics may use the Licensee’s name as part of a general list of customers and may refer to Licensee as a user of the Cloud Programs in its advertising, marketing and promotional materials.
    • 8.3 Governing Law and Dispute Resolution; Equitable Relief. The Agreement, and all matters arising out of or relating to the Agreement, shall be governed by the laws of the State of California, without giving effect to principles regarding conflicts of laws. Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Diego, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration, or for injunctive or other equitable relief to restrain a breach or threat of breach, of intellectual property rights, confidentiality protection, or other breach or violation of rights for which injunctive or equitable relief is appropriate.
    • 8.4 Notice. Licensee agrees to notify Novadontics of any changes to Licensee’s business address, business contact, and support contact within ten (10) days of any change thereto. All notices required or permitted hereunder shall be given in writing or as specifically set forth in the applicable section of the Agreement. To expedite order processing, Licensee agrees that Novadontics may treat documents emailed or faxed by Licensee to Novadontics as original documents; nevertheless, either party may require the other to exchange original signed documents to evidence an order for Cloud Programs or for Services. This Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as an original instrument.
    • 8.5 LIMITATION OF LIABILITY. EXCEPT IN INSTANCES WHERE THE LICENSEE VIOLATES ITS OBLIGATIONS UNDER SECTION 2, 7 OR 8.1 OF THE AGREEMENT, IN WHICH CASE ITS LIABILITY TO NOVADONTICS SHALL NOT BE LIMITED, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, COVER, PUNITIVE OR OTHER DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR OTHER, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HERE-UNDER,. NOVADONTICS’S MAXIMUM LIABILITY TO LICENSEE UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY LICENSEE DURING THE MOST RECENT TWO (2) MONTH PERIOD BEFORE THE EVENT GIVING RISE TO THE CLAIM. The provisions of the Agreement allocate the risks between Novadontics and Licensee. The parties agree that Novadontics’s pricing and other terms and conditions of the Agreement reflect the allocation of risk and the limitation of liability specified herein.
    • 8.6. U.S. Government and HIPAA. The Cloud Programs and accompanying documentation are commercial computer software and documentation developed exclusively at private expense and in all respects are proprietary data belonging to Novadontics. If the Cloud Programs and accompanying documentation are used under the terms of a Department of Defense or civilian agency contract, use, reproduction and disclosure of such software and documentation by the Government is subject to the restrictions set forth in the Agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively. The HIPAA Business Associate Agreement Addendum attached hereto as Exhibit A is incorporated into this TOS by reference.
    • 8.7 Other Terms. In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect. The waiver by either party of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of Novadontics’ Intellectual Property Rights, no action, regardless of form, arising out of the Agreement may be brought by either party more than one year after the cause of action has accrued. The Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of the Agreement. Novadontics may assign this Agreement or any rights or obligations under it. Licensee may not assign the Agreement or any rights or obligations hereunder without prior written consent of Novadontics, which consent shall not be unreasonably withheld or delayed (any such assignment without prior consent shall be void). Either party may assign this Agreement to an affiliate or to a successor entity pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets, business or ownership interests. Novadontics may modify the terms of the Agreement between the parties, including these Terms of Service and any incorporated Order Form(s) or Subscription and Services Agreements upon written notice, e-mail or otherwise, to Licensee, which may be in the form of an electronic posting on the Licensee’s Cloud Programs. Continuing use of Cloud Programs by Licensee shall constitute assent to these terms and conditions in this Agreement. It is expressly agreed that the terms of the Agreement and any Order Form shall supersede the terms in any Licensee purchase order or other ordering document. In the case of conflict or inconsistency among the terms of the Order Form and TOS, the order of precedence for conflict resolution in descending order shall be as follows: (a) any amendment or change order to the Order Form and TOS; (b) the Order Form; (c) the TOS and (d) any Exhibits or ancillary documents to the Order Form and TOS.
    • 8.8 Force Majeure. Except with respect to failure to pay any amount due under this Agreement, nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party (“Force Majeure Event”).
    • 8.9 Regulatory Limitations. The Services are provided in accordance with applicable regulatory requirements in the United States of America. Licensee shall comply with all applicable United States, foreign and local laws and regulations, including, without limitation, export control laws and regulations of the U.S. Export Administration. Licensee further agrees to indemnify and hold Novadontics harmless from any and all governmental and/or regulatory claims made by governments including and other than the United States of America that may arise should Licensee use or access the Services outside of the United States of America or should Licensee use or access the Services for citizens or residents who have citizenship or residency outside the United States.
    • 8.10 No Agency. The Licensee and Novadontics are independent contractors and neither party is the legal representative, agent, joint venturer, partner, franchisor, franchisee or employee of the other party for any purpose whatsoever. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.
    • 8.11 Exhibit B. Exhibit B, ADA CDT Addendum, attached hereto, applies only to the use of any Cloud Programs that include access to the master database of the American Dental Association (ADA) Code on Dental Procedures and Nomenclature Codes in electronic form (“CDT”) and is required by the ADA.

    This HIPAA BUSINESS ASSOCIATE AGREEMENT ADDENDUM (the “BAA Addendum”), by and between Novadontics (hereinafter referred to as “Business Associate”) and the above-referenced Licensee (hereinafter referred to as “Covered Entity”), is hereby incorporated into the TOS, specifically by Section 8.6 thereof, and is effective as of the Effective Date of the Agreement. RECITALS

    1. Covered Entity and Business Associate are parties to one or more agreements (each such agreement, a “Covered Contract,” and collectively, the “Agreement”) pursuant to which Business Associate provides certain services to Covered Entity, and, in connection with those services, Covered Entity discloses to Business Associate certain health information (the “Protected Health Information” as defined in 45 CFR 160.103 that is subject to protection under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act, and certain regulations promulgated by the U.S. Department of Health and Human Services to implement certain provisions of HIPAA (herein “HIPAA Regulations” found at 45 CFR Parts 160-164), all as may be amended from time to time.
    2. Business Associate, as a recipient of Protected Health Information from Covered Entity, is a “Business Associate” as that term is defined in the HIPAA Regulations.
    3. Pursuant to the HIPAA Regulations, all Business Associates of the Covered Entity must, as a condition of receiving Protected Health Information in the course of doing business with Covered Entity, agree in writing to certain mandatory provisions regarding, among other things, the use and disclosure of Protected Health Information.
    4. The purpose of this Addendum is to satisfy the requirements of the HIPAA Regulations, including, but not limited to, 45 CFR §164.504(e), as the same may be amended from time to time.
    1. OBLIGATIONS OF THE PARTIES
    2. Definitions

    Catch-all definition: The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designed Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use. Specific definitions: (a) Business Associate. “Business Associate” shall generally have the same meaning as the term “Business Associate” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean Novadontics. (b) Covered Entity. “Covered Entity” shall generally have the same meaning as the term “Covered Entity” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean the Licensee named on one or more order forms or Subscription Agreements or Service Agreements. (c) HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.

    1. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE

    Business Associate agrees to:

    • (a) Not use or disclose protected health information other than as permitted or required by the Agreement or as required or permitted by law;
    • (b) Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement; Access to Business Associate’s computer networks and systems and the Protected Health Information will be controlled via a user ID and password. BUSINESS ASSOCIATE IS NOT RESPONSIBLE FOR ANY UNAUTHORIZED USE OR DISCLOSURE OF A USER ID OR PASSWORD, OR FOR ANY BREACH OF THIS BAA ADDENDUM ARISING AS A RESULT OF ANY SUCH UNAUTHORIZED USE OR DISCLOSURE BY COVERED ENTITY.
    • (c) Report to Covered Entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information, and any security incident of which it becomes aware, as required by 45 CFR 164.400-414. Notifications from Novadontics to Covered Entity shall be in writing and will include the information required under 45 CFR 164.404(c). Covered Entity shall take all further actions under this subsection at its sole cost;
    • (d) As timely as reasonably possible, and in accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;
    • (e) To the extent Business Associate maintains any protected health information in a designated record set, make available protected health information in a designated record set to the Covered Entity as necessary to enable Covered Entity to meet its obligations under 45 CFR 164.524;
    • (f) To the extent Business Associate maintains any protected health information in a designated record set, make any amendment(s) to protected health information in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to enable Covered Entity to meet its obligations under 45 CFR 164.526;
    • (g) Maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to enable Covered Entity to satisfy its obligations under 45 CFR 164.528;
    • (h) To the extent the Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and
    • (i) Make its internal practices, books, and records available to the Secretary of HHS for purposes of determining compliance with the HIPAA Rules.

    III. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE

    • (a) Covered Entity and Business Associate agree that Business Associate may disclose protected health information to other business associates of Covered Entity for Business Associate’s performance of services contemplated in the Agreements at Covered Entity’s direction, provided that such other business associates have entered into agreements imposing the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information. In addition, Business Associate may use de-identified information as set forth in Section 3.4 of the Agreement.
    • (b) Business Associate may use or disclose protected health information as required or permitted by law.
    • (c) Business Associate agrees to make uses and disclosures consistent with Covered Entity’s minimum necessary policies and procedures. Business Associate will refer any requests for protected health information directly to Covered Entity for processing and resolution in accordance with this BAA Addendum Section IV.(d).
    • (d) Business Associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity. However, Business Associate may use or disclose protected health information for its own management and administration and legal responsibilities as set forth in paragraphs (e), (f), or (g) below.
    • (e) Business Associate may use protected health information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
    • (f) Business Associate may disclose protected health information for the proper management and administration of Business Associate or to carry out the legal responsibilities of the Business Associate, provided the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required or permitted by law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
    • (g) In addition to its rights under Agreement Section 3.4, Business Associate may provide data aggregation services relating to the health care operations of the Covered Entity.
    1. PROVISIONS FOR COVERED ENTITY TO INFORM BUSINESS ASSOCIATE OF PRIVACY PRACTICES AND RESTRICTIONS
    • (a) Covered Entity shall notify Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of protected health information.
    • (b) Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent that such changes may affect Business Associate’s use or disclosure of protected health information.
    • (c) Covered Entity shall notify Business Associate of any restriction on the use or disclosure of protected health information that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of protected health information.
    • (d) Covered Entity will be solely responsible for obtaining from its customers/patients all authorizations relating to the disclosure of Protected Health Information that are required under HIPAA to enable Business Associate and/or its subcontractors to facilitate communication between Covered Entity and its customers/patients and their family members and for Business Associate to otherwise perform its obligations under the Agreement. Covered Entity hereby represents and warrants to Business Associate that it will have received the necessary authorization from a customer/patient prior to the disclosure of such customer/patient’s Protected Health Information to Business Associate. Business Associate will forward to Covered Entity for processing and resolution any and all requests for information it may receive. Covered Entity will be solely responsible for responding to these requests.
    • (e) Covered Entity shall promptly notify Business Associate of any breach of any HIPAA obligations that may affect Business Associate’s use or disclosure of protected health information.
    1. PERMISSIBLE REQUESTS BY COVERED ENTITY

    Covered Entity shall not request Business Associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by Covered Entity. Provided, however, that the Business Associate may use or disclose protected health information for, data aggregation or management and administration and legal responsibilities of the Business Associate as may be set forth in the Agreement or as permitted by law.

    1. TERM AND TERMINATION
    • (a) Term. The Term of this BAA Addendum shall be effective as of the Effective Date of the Agreement, and shall terminate as set forth in the Agreement.
    • (b) Termination for Cause. Business Associate authorizes termination of this BAA Addendum according to terms and conditions set forth in the Agreement.
    • (c) Obligations of Business Associate Upon Termination.

    Upon termination of this Agreement for any reason, Business Associate, with respect to protected health information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:

    • 1) Retain only that protected health information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
    • 2) Return to Covered Entity or, if agreed to by Covered Entity, destroy the remaining protected health information that the Business Associate still maintains in any form;
    • 3) Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevent use or disclosure of the protected health information, other than as provided for in this Section, for as long as Business Associate retains the protected health information;
    • 4) Not use or disclose the protected health information retained by Business Associate other than for the purposes for which such protected health information was retained and subject to the same conditions set out at paragraphs (e) and (f) above under “Permitted Uses and Disclosures by Business Associate” which apply prior to termination; and
    • 5) Return to Covered Entity or, if agreed to by Covered Entity, destroy the protected health information retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.
    • (d) Survival. The obligations of Business Associate under this Section VI shall survive the termination of the BAA Addendum and the Agreement.

    VII. MISCELLANEOUS

    • (a) Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
    • (b) Amendment. The Parties agree that Business Associate may amend this BAA Addendum as is necessary from time to time in its discretion for compliance with requirements of the HIPAA Rules and any other applicable law.
    • (c) Relationship of the Parties. Covered Entity and Business Associate agree that Business Associate’s services hereunder are being carried out as an independent contractor and not as an employee or agent of the Covered Entity.
    • (d) Any ambiguity in this BAA Addendum shall be resolved to comply with the HIPAA Regulations. There are no third-party beneficiaries to this BAA Addendum.
    This ADA CDT ADDENDUM (the “CDT Addendum”), by and between Novadontics and the above-referenced Licensee, is hereby incorporated into the above Application Terms of Service and is effective as of the Effective Date of the Agreement. This CDT Addendum applies only to use of any Cloud Programs that include access to the master database of American Dental Association (ADA) Code on Dental Procedures and Nomenclature Codes in electronic form (“CDT”) and is required by the ADA. Licensee hereby acknowledges that:
    1. Novadontics’s provision of updated versions of CDT is dependent upon Novadontics’ continuing contractual relations with the ADA;
    2. Licensee’s use of CDT is non-transferable, non-exclusive, and for the sole purpose of internal use in the territory and language as designated in Licensee’s Agreement with Novadontics;
    3. Licensee is prohibited from using CDT or information contained therein in any public computer based information system or public electronic bulletin board (including the Internet and World Wide Web) unless subject to the provisions of this CDT Addendum;
    4. Licensee is prohibited from publishing, translating, or transferring possession of the CDT or a copy or portion of it;
    5. Licensee is prohibited from creating derivative works based on CDT and selling, leasing or licensing it or otherwise making the CDT or any portion thereof available to any unauthorized party;
    6. Licensee shall ensure that anyone who has authorized access to the Cloud Programs complies with the provisions of this CDT Addendum;
    7. This product includes CDT which is commercial technical data and/or computer databases and/or commercial computer software and/or commercial computer software documentation, as applicable, which were developed exclusively at private expense by the American Dental Association, 21 East Chicago Ave., Chicago, IL 60611. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer databases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (June 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of FAR 52.227-14 (June 1987) and FAR 52.227-19 (June 1987), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
    8. CDT is provided “as is” without any liability to Novadontics or the ADA, including, without limitation, no liability for consequential or special damages or lost profits for sequence, accuracy or completeness of data, or that it will meet Licensee’s requirements, and that Novadontics’s and ADA’s sole responsibility is to use reasonable efforts to obtain replacement CDT for Licensee in the event of defects; ADA disclaims any liability for any consequences due to use, misuse or interpretation of information contained or not contained in CDT.
    9. This CDT Addendum shall terminate in the event of default under this CDT Addendum; and
    10. In the event that a provision of this CDT Addendum is determined to violate any law or is unenforceable, the remainder of the CDT Addendum shall remain in full force and effect.
     

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