MASTER TERMS OF SERVICE
Revised on January 30, 2020
WELCOME
Welcome to DentalROI’s Master Terms of
Service (this “Agreement”). We ask that you read this Agreement carefully, since it is a binding contract between you and Market Igniter, Inc. dba DentalROI (“DentalROI,” “We,” or “Us,”). The terms “you,” “your,” and “yours,” refer to the party ordering and using our services. This Agreement is effective on the date you indicate your acceptance of this Agreement, whether by clicking “I Accept” or similar phrase online or by signing a digital or paper version of this Agreement. This Agreement amends, restates, and supersedes any prior agreement relating to your use of our Website Services and DentalROI Platform (as defined below). We may amend this Agreement from time to time, and when we do, we will notify you of the amendments at the email address associated with your account. By continuing to use the Website Services or DentalROI Platform after notice of amendment, you indicate your acceptance of this Agreement as amended, whether your original agreement was electronic or in hard copy. By agreeing to this Agreement, you accept the terms of our Privacy Policy.
You may, both at the initiation of this Agreement and later during the term hereof, order various services and tools from us. In each instance, any service or tools you order will be described in a written agreement between the parties that is either (1) accepted by you using an online form or process that we provide, (2) signed by both parties or (3) acknowledged and affirmatively accepted via e-mail (in each case, the supplemental agreement being referred to herein as an “Order Form”). The terms of any Order Form shall be incorporated into this Agreement, and any terms of an Order Form that contradict the terms of this Agreement shall control over the conflicting provisions of this Agreement. No purchase order terms, acceptance document, or other communication that you send us shall govern over this Agreement under any circumstances.
This Agreement governs your access to and use of our services as described in this Agreement and any Order Form to which you agree (the “Services”). The Services consist of Website Services and Professional Services that you order through this Agreement or on an Order Form, each as defined as follows:
“Website Services” refers to the products and services (to the extent you order them) made available through our platform (the “DentalROI Platform”), including, without limitation, a website hosted on the DentalROI Platform (“Your Website”), the portal through which Your Website and the Website Services are accessed and managed (the “Website Admin”), and all of the software-based services that may be integrated with Your Website and/or managed through the Website Admin, including any blog and event tools (“Blog”), Content (as defined below), any email marketing tools, social media marketing tools, contact management system (“Contact System”), mobile application (the “Mobile Application”), and other tools and services that may be added by us or our partners from time to time, collectively and individually.
“Professional Services” refers to any products or services provided by DentalROI outside of the DentalROI Platform related to your use of the Website Services, including, without limitation, any setup services, website design, concierge services, and other exclusive services, including copy and blog writing, or other similar services, collectively and individually.
Our promise: We will deliver the Services you order in a professional manner using commercially reasonable efforts, as outlined in this Agreement. If you are unsatisfied with the Services we provide, you may cancel your subscription at any time without penalty.
1. OUR SERVICES
1.1 Website Services. During the period of this Agreement (the “Term”), we hereby give you permission to use and access those Website Services you have ordered, subject to the terms and conditions of this Agreement. You may access and control the Website Services through the Website Admin. You are responsible for exercising control over the Website Services through the Website Admin.
1.2 Professional Services. We may have provided or will provide Professional Services in connection with the Website Services, including an initial build of your Website and additional services related to creating Content on your Website, such as concierge and exclusive setup services, copy writing, blog writing, website change orders, and marketing services, which may include search engine optimization, pay-per-click advertising, social media and video marketing, and other services. Such Professional Services frequently require you to provide us materials, input and feedback (“Input”). The quality and timeliness of the Professional Services is often contingent upon the quality and timeliness of your Input. You agree to remain engaged throughout the process of any Professional Services and to provide us the Input we need in a timely manner. In addition, you hereby authorize DentalROI to copy, download and use any and all content from your prior non-DentalROI website (“Your Prior Website Content”), if any, for any Professional Services we provide to you, including to create an initial build of your Website. For the avoidance of doubt, such permission and authorization extends retroactively to any Professional Services provided to you previously. Importantly, you can remove any of Your Prior Website Content from the Website Services at any time through the Website Admin. Whenever we provide Professional Services, we make commercially reasonable efforts to ensure that our work has the desired result. However, we cannot ever guarantee that our efforts will have the desired result. For example, we cannot guarantee that search engine optimization work will result in any specific search engine result placement; nor can we guarantee that social media posts will reach a specific number of individuals. You acknowledge that and agree that our compensation shall not be based on any particular result.
1.3 Other Professionals. If you inform us that you have retained a third party to interact with us regarding our provision of the Professional Services or Website Services, you are appointing them as your agent and agree that we are authorized to work exclusively with that individual or entity to provide you the Services.
1.4 Managing Ads. Where you retain us to manage ads for you, such as on Facebook or using Google Ads, you agree that we are acting as your agents and that you are directly responsible for the payment of any fees related to the placement of ads. Except in the event we act with malicious intent, we are not responsible for any claims arising out of or related to the content, placement, or results of your ads.
2. CONTENT
2.1 Content. The content that may appear in the Website Services (“Content”) is of three types: Your Content, Related Third-Party Content, and DentalROI Content, in each case, as defined below. Content can be logos, trade names, service names, images, text, articles, infographics, blog posts, videos, or any other type of material that may be displayed via the Website Services. The ownership of and responsibility for Content is governed by this Agreement.
2.2 Your Content. “Your Content” consists of (i) Your Prior Website Content and (ii) any Content provided to DentalROI by you (or any person on your behalf or through your account) for use in the Services, whether by email, by uploading such Content to the Website Services through the Website Admin, or by any other method. Subject to the provisions of this Agreement, you grant DentalROI a license to use Your Content in connection with providing our Services to you. Such license is worldwide, non-exclusive, royalty-free, fully assignable, and fully paid-up. You warrant and represent that you own Your Content without any restriction or that you have a license to use Your Content in the manner contemplated by this Agreement. You are solely responsible for Your Content, and you warrant and represent that it does not and will not infringe upon the intellectual property rights of any third party.
2.3. Related Third-Party Content. “Related Third-Party Content” consists of Content used in the Services that is provided directly to DentalROI by a third party with which you have a relationship, such as your website designer or a third-party service to which you are a subscriber. DentalROI is not responsible for Related Third-Party Content and disclaims any and all warranties related to such Third-Party Content, including any warranty of non-infringement.
2.4 DentalROI Content. “DentalROI Content” consists of Content used in the Services that is created by DentalROI or licensed from a third party. Your license to use the Website Services includes a license to use the DentalROI Content in the Website Services, provided, that such license does not include a right for you to re-license, download, sell, rent, or use any DentalROI Content outside of the Website Services. Thus, although you will be allowed to use all DentalROI Content in the Website Services, you may not re-license, download, sell, rent, or use it for any other purpose. For example (without limitation), you cannot download from the Website Admin an image we have provided for use on your Website or use the content from one of our articles in another publication.
3. SERVICE AVAILABILITY; PATIENT INFORMATION; CAN-SPAM
3.1 Provision of Services. We will (a) make the Services available to you pursuant to this Agreement, (b) provide applicable DentalROI standard support for the Services to you at no additional charge, and (c) use commercially reasonable efforts to make the Website Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Non-DentalROI application (such as Amazon Web Services), or denial of service attack.
3.2 Security, Confidentiality, and Ownership of Patient Information. DentalROI commits to handle and store all the contact information it receives from you that is contained in the Contact System (“Patient Information”) behind a firewall that is secured by commercially reasonable and modern technical and organizational safeguards. Although DentalROI may provide consulting services to help you manage your Patient Information, DentalROI does not provide back-up services for Patient Information. Patient Information does not include Your Content. All Patient Information belongs to you and the natural persons who have provided such information using the Website, and DentalROI will make no claim to ownership of the Patient Information. DentalROI will not use any of the Patient Information for its own purposes or provide the Patient Information to any third parties, except to comply with Applicable Laws, an investigation by a governmental authority or a subpoena. Notwithstanding the foregoing, DentalROI may use anonymized data or metadata that is not identified with a specific natural person in order to assemble trends and other large-scale data for benchmarking, statistical generation and other commercial purposes.
3.3 Ownership of Patient Relationship. DentalROI will not intentionally interfere with the relationships between you and your patients. You own, and will continue to own, all the rights to approach patients regarding any commercial relationship, and DentalROI will make no attempt to assert ownership over any patient relationship.
3.4 CAN-SPAM. The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”) applies to electronic marketing. You are responsible to learn and comply with CAN-SPAM’s requirements. In addition, you warrant and represent that you will only use e-mail in your use of the Website Services, including any email tools, to contact individuals and companies with whom you have a pre-existing commercial relationship. You also warrant and represent that you will not use any e-mail addresses or upload any e-mail addresses that were obtained through the use of scraping or other automated method and that you will not use or upload to the Contact System any e-mail addresses purchased from third parties. You acknowledge that DentalROI will provide a prominent “unsubscribe” link in each e-mail sent through the Website Services to e-mail addresses that you provide, and you agree to promptly honor any unsubscribe request.
4. WEBSITE DOMAINS
4.1 Domain Management. You may retain us to provide Professional Services related to your domain name and website. When you do, you agree to give us the necessary information to allow us to perform the services for which we have been retained. For example, where necessary, you may need to give us access to manage your DNS or to create a new account on your behalf. You may also need to give us information to confirm domain ownership, so that we can use the third-party services that make our services work. And you may need to give us permission to allow us to purchase and install an SSL for security as part of our service.
4.2 Domain Management Upon Termination. When this Agreement terminates, if you have been using our services to host your website, you will need to migrate your website to a new service. Your website is a not a static program that can simply be copied and moved, since it is a dynamic collection of relationships and applications based on information drawn from a database. Thus, migration will consist of moving all the data of which your website consists to your new service. You will have thirty (30) days after termination to perform the migration, for which we will offer you reasonable assistance at our then-current hourly rates. After the thirty (30) days expires, we will delete all the information related to your website, as well as your database, SSL, and data storage accounts and your text messages, analytics, and other data and content that was created while using our Services.
5. MOBILE APPLICATION
5.1 Authorization. If you order a Mobile Application, you hereby authorize DentalROI to act as your agent and attorney-in-fact with authority to deal directly with Apple, Android, and similar companies with respect to any matters related to the Mobile Application. This is the only matter in relation to which DentalROI is authorized to act as your agent.
5.2 Function. You acknowledge that the correct functioning of the Mobile Application depends on several factors that are beyond DentalROI’s control, including but not limited to the applicable device, the app store, and the carrier. Any one of these factors may cause the Mobile Application to not operate correctly. Therefore, DentalROI makes no representations that the Mobile Application will work correctly on any given device or at any given time. DentalROI may choose whether to support any given device and whether to discontinue support of any given device at any time. Such discontinuance will not entitle you to a refund of any of the fees already paid.
6. BILLING AND PAYMENT
6.1 Payment and Interest. Your credit card will be billed on a monthly basis for all Services that are rendered on a monthly basis, such as certain of the Website Services. Your credit card will be billed on a one-time basis for all Services that are rendered on a one-time basis, such as certain of the Professional Services. The provisions governing the amount and timing of payment, including the details related to recurring billing, will be indicated when you sign up for Services. If you fail to make timely payment for any reason, you will be charged an administrative fee of ten percent (10%) of the total balance owed for each month in which your payment is late. There is no grace period. This administrative fee is not a penalty; rather, it is intended as the parties’ best efforts to approximate the administrative costs DentalROI will incur if your payment is late. If there is a dispute as to any amount owed, you agree to pay the undisputed amount on time. If a dispute over any amount owed continues for more than 14 days, DentalROI may suspend and withhold performance of any of its obligations under this Agreement pending resolution of the dispute.
6.2 Third-Party Processing. In order to protect the privacy and security of your credit information, we may use the services of a third-party processor. You authorize us to contract with such third-party processor for these purposes.
6.3 Recurring Billing. By signing up with DentalROI, you authorize us to charge you a fee for your initial Term as well as a recurring fee for each subsequent Term. You also authorize us to charge you any other fees you may incur in connection with your use of the Services as described.
6.4 Pricing. Prices for our Services are set forth on our website and in an applicable Order Form. We reserve the right to change our prices at any time. We also reserve the right to increase our prices for any Services to which you are subscribed so long as we provide you notice delivered to the email associated with your account at least 15 days prior to the date on which such prices will increase, although, in most cases, we expect to be able to provide more advance notice.
6.5 Refunds. Generally, our fees (including any recurring amount and other fees) are nonrefundable. We may make exceptions in our sole and absolute discretion, and any such exceptions do not entitle you to any future discounts or refunds in the future for similar instances.
6.6 Payment Methods. You may update your payment method information by contacting our customer service department via phone or email as set forth on our website. If a payment is not successfully settled, due to expiration, insufficient funds or otherwise, and you do not update your payment method information or cancel your account, you nonetheless will remain responsible for any uncollected amounts and authorize us to continue billing the payment method, as it may be updated, including in the event you attempt to create a new account. This may result in a change to your payment billing dates. If we cannot charge your account, we reserve the right, but are not obligated, to terminate your access to the Services, the DentalROI Platform, the Website, or any portion thereof.
6.7 Credit Checks. You agree that if you use the health credit assessment tool or any similar tool offered by DentalROI, you will (1) obtain written consent from the patient whose credit is being checked, either through an online consent form or through a hard copy written consent; (2) keep a copy of the written consent for a period of at least five (5) years after the consent was granted, so that you can establish by written evidence that consent was obtained; (3) not use any information obtained through the health credit assessment tool for any purpose other than to make a decision of whether to grant credit to a particular patient; (4) not convey any information obtained through the health credit assessment tool to any third party, either by sale, rental, or otherwise; and (5) become independently familiar with and comply with all local, state, and national laws regarding the extension of credit and the protection of privacy related to the collection and use of credit information, including without limitation the Fair Credit Reporting Act.
7. APPLICABLE LAWS; PCI COMPLIANCE; RESTRICTIONS; INDEMNITY
7.1 Applicable Laws. You are responsible for, and you represent and warrant that you are in compliance with, all governmental laws, regulations, rules, and orders (“Applicable Laws”) that relate to you or your business, including but not limited to all laws, regulations, rules, and orders relating to the industry in which you operate, including without limitation the CAN-SPAM Act, Child Online Privacy Protection Act, Telephone Consumer Protection Act ("TCPA"), and the Digital Millennium Copyright Act, as well as laws, regulations, publications, rules, rulings, and findings of any governmental entity relating to the dental industry, as well as the Health Insurance Portability and Accountability Act (HIPAA), and including any federal, state, or local laws, rules, or regulations that relate to any other industry in which you operate. You are responsible for all licensing required by Applicable Law, including any professional licensing applicable to your business, and you warrant and represent that you are current and in compliance with all such Applicable Laws. You acknowledge that DentalROI does not market its services to European individuals or companies and therefore makes no attempt to comply with the General Data Protection Regulation (“GDPR”) that governs the protection of personal information of residents of the European Union, and you agree to waive any claims you may have that may arise out of or be related to the GDPR.
7.2 Terms Specific to Insurance and Membership Plans. You acknowledge that many states regulate medical and dental payment plans, membership plans, discount plans, savings plans, or other arrangements that you may set up and that the Services may facilitate, whatever they may be called. In some cases, such arrangements are considered “insurance” under applicable state law, and the providers of such arrangements are subject to all the laws applicable in the insurance industry. DentalROI operates in multiple states and makes no efforts to ensure that the services comply with Applicable Laws. Therefore, you are solely responsible to ensure that you comply with any and all Applicable Laws, and you represent and warrant that if necessary, you have obtained legal counsel to help you meet that obligation.
7.3 Terms Specific to Bill Pay and Payment Plans. If you sign up to use our tools that allow your patients to make payments to you or that allow you or your patients to set up payment plans, you acknowledge that we only provide the tools for you to perform those functions and that you are solely responsible for your use of those tools. You are solely responsible to ensure that your contracts and your conduct related to your patients, as well as your use of your system, including the Services, complies with all Applicable Laws. Neither the structure of our tools nor the content of any template agreement that may be provided in connection with those tools is intended to constitute legal advice, and you agree to seek your own legal counsel to ensure that your agreements, and you represent and warrant, when you sign up for any such tools, that you have done so. You also agree, in connection with your administration of any bill pay arrangement or payment plan, that you will not include procedure codes or other personal health information in the system making available the bill pay or payment plan functionality.
7.4 Terms Specific to Two-Way Texting and Other Messaging. If you sign up to use our tools that allow your patients to text with you or to use any similar messaging technology, you acknowledge and agree that we may automatically send an initial text or other message seeking your patient’s consent to communicate with you regarding health-related items via text messages or other messaging technology. The message will consist of substantially the following request: “By communicating with us via text message, you are consenting to communicate with us about your personal health information and other matters via texts with your specific phone number. You may opt out of this consent by messaging us 'stop.'" If your patient refuses to consent, we may refuse to facilitate the texting or messaging. You acknowledge that, notwithstanding the fact that we may seek the consent, we are in no way liable for any HIPAA violations or violations of other Applicable Laws, including the TCPA, that occur by reason of your use of the texting or messaging technology. You represent and warrant that you will seek the advice of legal counsel to ensure you are complying with Applicable Laws in this regard.
7.5 Terms Specific to Recording of Conversations. If you sign up to use our tools that allow you to record the conversations of your patients, you acknowledge that we only provide the tools for you to perform those functions and that you are solely responsible for your use of those tools. You are solely responsible to ensure that your recording of your patients complies with all Applicable Laws. Neither the structure of our tools nor the content of any language seeking consent that may be provided in connection with those tools is intended to constitute legal advice, and you agree to seek your own legal counsel to ensure that your conduct complies with Applicable Laws, and you represent and warrant, when you sign up for any such tools, that you have done so.
7.6 Included Terms and Conditions and Privacy Policies. In certain instances, such as when we provide online tools for bill payment or membership plans, we provide sample agreements or privacy policies to which your patients may agree. You are licensed to use those sample agreements and policies, but we make no representation or warranty regarding those sample agreements and policies and whether they are enforceable or will otherwise meet your needs or any legal requirements. Our tools allow you to draft and insert your own language for agreements and policies, and we encourage you to retain independent legal counsel to provide you with that language. You shall defend, indemnify and hold DentalROI, its officers, shareholders, members, employees, attorneys, and agents, harmless from and against any loss, damage or costs (including reasonable attorneys’ fees, court costs, and witness fees) arising out of or related to any deficiency, inadequacy, or failure of any agreement or provision of any agreement or policy we provide. If DentalROI seeks indemnification under this Agreement, DentalROI agrees to (a) promptly give written notice of the third-party claim to you; (b) give you sole control of the defense and settlement of the third-party claim (provided that you acknowledge full responsibility to indemnify DentalROI for any and all losses, damages and costs associated with such claim and shall not settle any third-party claim unless you unconditionally release DentalROI of all liability); and (c) cooperate, at your cost, in all material respects with your defense of any such claim. To the degree any notice to you is not deemed by a court of competent jurisdiction to have been “promptly” given, your duties under this section shall only be decreased to the degree the delay in notice is shown to have been directly responsible for additional losses.
7.4 HIPAA and PCI Compliance. PCI and HIPAA compliance require that both technical and organizational measures be taken. To the extent technical measures are required, such as the use of encryption tools, the DentalROI Platform is both PCI and HIPAA compliant. However, organizational measures will be required of you to make your use of the DentalROI Platform and any website or tool we make available to you PCI and HIPAA compliant in an organizational sense. You are solely responsible to determine what those organizational measures are. We do not and cannot provide legal or other advice on such measures and to the extent any agent or employee of DentalROI does provide such advice or assistance, you agree that you are not entitled to rely on such advice or assistance and to seek independent legal advice instead.
7.5 COPPA. The Child Online Privacy Protection Act of 1998, with amendments thereto, protects the privacy rights of children (under 13). You are responsible to learn and comply with COPPA’s requirements. In addition, you warrant and represent that you will not intentionally market to children under 13 and that you will not gather information of children under 13 in any format or post any personal information (including images) of children under 13 in the Website Services, including on your Website, Blog, or Mobile Application.
7.6 Digital Millennium Copyright Act. DentalROI complies with the Digital Millennium Copyright Act. DentalROI does not permit copyright infringing activities and reserves the right to terminate access to the Website Services by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive, or illegal activity may be grounds for termination of your use of the Website Service and may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies DentalROI may have at law or in equity.
7.7 Other Restrictions. You may not (i) attempt to obtain a copy of any element of the Website Services or the DentalROI Platform, (ii) reverse compile, reverse engineer, reverse assemble or otherwise attempt, directly or indirectly, to obtain or create source code for any element of the Website Services or the DentalROI Platform, (iii) modify or create derivative works of any element of the Website Services or the DentalROI Platform, or (iv) sub-license, transfer, distribute, sell or resell any Website Services provided by DentalROI hereunder. In addition, you will not use the Services or DentalROI Platform for any purpose that is unlawful or prohibited by these Terms. You may not use the Services in any manner that could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Services. You may not attempt to gain unauthorized access to the Services or DentalROI Platform or any part of the DentalROI Platform, other accounts, computer systems or networks connected to the Services or DentalROI Platform, or any part of them, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Services or DentalROI Platform or any activities conducted on the DentalROI Platform. You may not remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services or DentalROI Platform, any features that prevent or restrict use or copying of any content accessible through the Services or DentalROI Platform, or any features that enforce limitations on the use of the Services or DentalROI Platform or the content therein. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services or DentalROI Platform. You agree neither to modify the DentalROI Platform in any manner or form, nor to use modified versions of the Services or DentalROI Platform, including (without limitation) for the purpose of obtaining unauthorized access to the Services or DentalROI Platform. You agree that you will not use any robot, spider, scraper, or other automated means to access the Services or DentalROI Platform for any purpose without our express written permission or bypass any robot exclusion headers or other measures we may use to prevent or restrict access to the Services or DentalROI Platform.
7.8 Account Information. You agree that the information you provide to DentalROI when you sign up and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. When you signed up, you were asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account. You authorize us to reset your password at any time.
7.9 Prohibited Conduct. You agree not to:
· Harass, threaten, disrupt or defraud any person through the Services or otherwise create or contribute to an unsafe, harassing, threatening or disruptive environment through the Services;
· Impersonate another person or access another user’s account;
· Share DentalROI-issued passwords with any third party or encourage any other user to do so;
· Permit anyone to use any Services booked under your own subscription;
· Upload material (e.g. virus) that is damaging to computer systems or data of DentalROI or users of the Website Services, or DentalROI Platform;
· Upload or post any material that is inappropriately violent, unduly graphic, pornographic, bigoted, derogatory, racist, or offensive, or that violates the intellectual property rights of any third party. We may remove any material that we decide, in our sole discretion, violates the foregoing requirement.
DentalROI may determine in its sole discretion whether conduct in which you engage violates any or all of these obligations, and it may immediately and unilaterally suspend your account and access to the DentalROI Platform, the Website, and the Services for such violation. Exercise of its termination rights hereunder does not preclude the exercise of any other right to which DentalROI is entitled, either under the law or under this contract. Such rights include, without limitation, the right to refer violating conduct to law enforcement, where DentalROI believes in its sole discretion that illegal conduct has occurred.
7.10 Your Indemnity. You shall defend, indemnify and hold DentalROI, its officers, shareholders, members, employees, and agents, harmless from and against any loss, damage or costs (including reasonable attorneys’ fees, court costs, and witness fees) incurred in connection with any third-party claim made or brought against DentalROI arising out of or related to (i) Your Content, (ii) your use of the Services and the results obtained therefrom, (iii) your violation of any Applicable Laws, and/or (iv) your breach of any of the obligations contained in this Agreement or of any of the representations or warranties contained in this Agreement. If DentalROI seeks indemnification under this Agreement, DentalROI agrees to (a) promptly give written notice of the third-party claim to you; (b) give you sole control of the defense and settlement of the third-party claim (provided that you acknowledge full responsibility to indemnify DentalROI for any and all losses, damages and costs associated with such claim and shall not settle any third-party claim unless you unconditionally release DentalROI of all liability); and (c) cooperate, at your cost, in all material respects with your defense of any such claim. To the degree any notice to you is not deemed by a court of competent jurisdiction to have been “promptly” given, your duties under this section shall only be decreased to the degree the delay in notice is shown to have been directly responsible for additional losses. This indemnification is in addition to the indemnification provisions set forth elsewhere in this Agreement.
8. TERM AND TERMINATION
8.1 Term. The Term shall be one month. It shall automatically renew each month for an additional period of one month until either party gives the other party notice of its intent to terminate this Agreement. The termination shall be effective thirty (30) days after the date on which notice is delivered, during which time all amounts otherwise due under this Agreement and any Order Form will remain payable.
8.2 Termination for Breach. DentalROI may terminate this Agreement immediately if in its reasonable judgment it determines that you are in breach of any of the provisions of this Agreement and that it will suffer irreparable injury if the breach is allowed to continue. In every other instance, the non-breaching party shall give the other party 15 days’ notice and an opportunity to cure before terminating.
8.3 Effect of Termination. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement (including, without limitation, content and domain transfer obligations, limitation of liability and indemnification) will survive termination or expiration and continue in full force and effect.
9. LICENSES; PROPRIETARY RIGHTS
9.1 Licenses. The licenses granted you by DentalROI, and the licenses you provide us pursuant to this Agreement extend through the Term and are non-exclusive, limited, worldwide, royalty-free, and fully assignable. Except as expressly provided herein, DentalROI grants you no license or rights in any of its intellectual property. You understand and acknowledge that the DentalROI Content is not intended for your exclusive use and that it may be licensed to and used by other DentalROI customers.
9.2 Proprietary Rights. DentalROI hereby reserves all intellectual property rights not explicitly granted in this Agreement. As between DentalROI and you, DentalROI owns all intellectual property rights in and to the Services and the DentalROI Platform, and to all related documentation and copies thereof, including without limitation all copyrights, trademarks, patents, trade secrets and other intellectual property (the “Proprietary Rights”), including goodwill or reputation that accrues to DentalROI’s intellectual property. To the extent that any Proprietary Rights are invented, created, developed, or first reduced to practice under this Agreement, jointly by the parties or in connection with DentalROI’s provision of Services, including by incorporating your comments or suggestions, DentalROI will own all right, title, and interest in and to such Proprietary Rights, with no duty to account to you or compensate you with respect to the use and exploitation of the Proprietary Rights.
9.3 Our Indemnity. DentalROI shall defend you from and against any claim, action, suit or proceeding brought by a third party against you alleging that your use of the Services or DentalROI Platform in accordance with the provisions of this Agreement infringes a U.S. patent issued as of the effective date (each, an “Infringement Claim”). DentalROI shall pay any damages awarded in any final judgment entered by a court of competent jurisdiction with respect to any such Infringement Claim or agreed to by DentalROI in any settlements arising out of such Infringement Claim; provided, that (i) you promptly give written notice of the third-party claim to DentalROI; (ii) you give DentalROI sole control of the defense and settlement of the third-party claim; (iii) you provide to DentalROI, at DentalROI’s cost, all reasonable assistance; and (iv) the alleged infringement does not arise as a result of the combination, operation, or use of the Services or DentalROI Platform with third party software, services or other products or materials not furnished by DentalROI or any other breach of this Agreement. In the event of such an Infringement Claim or threat thereof, DentalROI may, in its sole discretion, obtain a license for the infringing part of the Services or DentalROI Platform, remove or alter the infringing part of the Services or DentalROI Platform, so long as such removal or alteration does not materially affect the functionality of the Services or DentalROI Platform, or terminate this Agreement. THIS SECTION STATES THE ENTIRE OBLIGATION AND LIABILITY OF DENTALROI, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
10. WARRANTY DISCLAIMER AND LIABILITY LIMITS
10.1 WARRANTY DISCLAIMER. DENTALROI MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. DENTALROI EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. DENTALROI DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THE DENTALROI PLATFORM, OR AGAINST INFRINGEMENT. DENTALROI DOES NOT WARRANT THAT THE SERVICES OR THE DENTALROI PLATFORM WILL BE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED OR THAT THEY WILL COMPLY WITH ANY APPLICABLE LAWS OR ALLOW YOU TO COMPLY WITH ANY APPLICABLE LAWS. DENTALROI DOES NOT WARRANT THAT USE OF THE SERVICES OR DENTALROI PLATFORM WILL RESULT IN ANY SPECIFIC LEVEL OF INCREASED BUSINESS OR THAT ANY MIGRATION OF YOUR WEBSITE WILL BE ERROR-FREE. DENTALROI DOES NOT WARRANT THAT ANY CREDIT INFORMATION YOU RECEIVE USING OUR HEALTH CREDIT ASSESSMENT TOOL OR SIMILAR TOOL WILL BE ACCURATE OR WILL CORRECTLY INDICATE THE CREDIT WORTHINESS OF ANY INDIVIDUAL.
10.2 LIABILITY LIMIT AND CAP. EXCEPT WITH REGARD TO DENTALROI’S WILLFUL MISCONDUCT, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, AND IN CONSIDERATION OF THE RELATIVE RISKS AND REWARDS, DENTALROI WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TERMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF DENTALROI IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING; NOR, EXCEPT FOR THOSE ITEMS LISTED ABOVE IN THIS PARAGRAPH, SHALL DENTALROI’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THESE TERMS, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAYABLE BY YOU TO DENTALROI FOR THE SERVICES, DENTALROI PLATFORM AND WEBSITE DURING THE TWELVE MONTHS PRECEDING THE ACT OR OMISSION THAT PRECIPITATED THE CLAIM.
11. BINDING ARBITRATION AND CLASS ACTION WAIVER
11.1 Binding Arbitration and Class Action Waiver if You Live In (or if a Business Your Principal Place of Business Is In) the United States. We hope we never have a dispute, but if we do, you and we agree to try for 60 days to resolve it informally. If we can’t, you and we agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in a court in front of a judge or jury. Instead, a neutral arbitrator will decide and the arbitrator’s decision will be final except for a limited right of appeal under the FAA. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity aren’t allowed. Nor is combining individual proceedings without the consent of all parties.
11.2 Disputes Covered–Everything Except IP. The term “dispute” is as broad as it can be. It includes, without limitation, any claim or controversy between you and us concerning the Services, the price of the Services, your account, this Agreement, and any billing authorization, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of your, your licensors’, our, or our licensors’ intellectual property rights.
11.3 Mail a Notice of Dispute First. If you have a dispute and our customer service representatives can’t resolve it, send a Notice of Dispute by U.S. Mail to our publicly available street address at DentalROI Attn: Legal Department. Tell us your name, address, how to contact you, what the problem is, and what you want. We’ll do the same if we have a dispute with you. After 60 days, you or we may start an arbitration if the dispute is unresolved.
11.4 Arbitration Procedure. The AAA will conduct any arbitration under its Commercial Arbitration Rules (or if you are an individual and use the Services for personal or household use, of if the value of the dispute is $75,000 or less whether or not you are an individual or how you use the Services, its Consumer Arbitration Rules). The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually to satisfy your individual claim.
12. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS
12.1 Linked Sites. The Services or DentalROI Platform may include links or access to other web sites or services (“Linked Sites”) solely as a convenience to users. In addition, with your authorization, and at your direction, DentalROI may access third-party sites on your behalf, using your credentials for the third-party sites that you enter into DentalROI yourself. In certain cases, you will provide us with an information that contains personal information, including login names and passwords, which you agree we may use for purposes of providing the services you request us to provide. Entering your credentials for such third-party sites into DentalROI’s Services or Site constitutes your authorization for DentalROI to access such third-party sites on your behalf. DentalROI does not endorse any Linked Sites or third-party sites or the information, material, products, or services contained on Linked Sites or accessible through Linked Sites or third-party sites. Furthermore, DentalROI makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites or third-party sites. ACCESS AND USE OF LINKED SITES AND THIRD-PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES AND THIRD-PARTY SITES OR AVAILABLE THROUGH LINKED SITES AND THIRD-PARTY SITES, IS SOLELY AT YOUR OWN RISK. DENTALROI WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO PROTECT THE SECURITY OF THE CREDENTIALS USED TO ACCESS LINKED SITES AND THIRD-PARTY SITES ONCE YOU HAVE ENTERED THEM INTO DENTALROI’S SITE, BUT YOU ARE SOLELY RESPONSIBLE TO ENSURE THOSE CREDENTIALS ARE NOT OBTAINED BY A THIRD PARTY OUTSIDE OF DENTALROI’S SITE.
12.2 Responsibility for dealings with Third Parties. Sometimes promotional plans are offered in conjunction with the provision of third-party products and services. We are not responsible for the products and services provided by such third parties, and use of such products and services is at your own risk. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Site are solely between you and such advertiser. YOU AGREE THAT DENTALROI WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE WEBSITE SERVICES OR DENTALROI PLATFORM.
13. CONFIDENTIALITY; TRADE SECRETS
13.1 Confidentiality. Each Party (the “Receiving Party”) acknowledges that it may be provided with or otherwise learn confidential and/or proprietary information of the other Party (the “Disclosing Party”) (including without limitation the Disclosing Party’s intellectual property and certain information and materials concerning the Disclosing Party’s business, plans, customers, technology, services and products) that is of value to the Disclosing Party, which is identified as confidential at the time of disclosure or which ought in good faith to be considered confidential by the Receiving Party (“Confidential Information”). All Confidential Information remains the property of the Disclosing Party. Other than with the express written consent of the Disclosing Party, during the Term of this Agreement, and for a period of two (2) years after termination (with respect to non-trade secret Confidential Information of the Disclosing Party), and in perpetuity (with respect to trade secrets of the Disclosing Party), the Receiving Party agrees not to disclose or exploit Confidential Information of the Disclosing Party. The Receiving Party may disclose the Confidential Information of the Disclosing Party only to its attorney, accountant and employees who need to know such Confidential Information for purposes permitted under this Agreement. The Receiving Party will protect the Confidential Information of the Disclosing Party in the same manner the Receiving Party uses to maintain the confidentiality of its own confidential information but in no event with less than reasonable care. The Receiving Party will give immediate notice to the Disclosing Party of any known unauthorized disclosure or exploitation of the Confidential Information and agrees to cooperate with the Disclosing Party in remedying such unauthorized use or disclosure. A Party who discloses or exploits the Confidential Information of the other Party without written authorization to do so shall be liable to such other Party for all Claims arising from such unauthorized disclosure or exploitation. Each Party agrees to return the other Party’s Confidential Information upon request therefore. The foregoing confidentiality obligations do not extend to Confidential Information which (i) becomes publicly available without the fault of the Receiving Party; (ii) is rightfully obtained by the Receiving Party from a third party who has the right to transfer such information without obligation of confidentiality; or (iii) was lawfully in the possession of the Receiving Party at the time of disclosure, without restriction on disclosure. Each Party agrees that injunctive or other equitable relief will be available to enforce this Article, without the necessity of posting a bond, cash or otherwise. If any restriction or covenant in this Agreement is held by any court to be unenforceable, then a lesser restriction will be enforced in its place and the remaining restrictions in this Agreement will continue to be enforced according to their terms.
13.2 Trade Secrets. The DentalROI Content contains items that are trade secrets of DentalROI and contain valuable proprietary products and trade secrets of DentalROI, embodying substantial creative efforts and confidential information, ideas, and expressions. You agree to take reasonable actions to protect the confidentiality of the DentalROI Content and agree not to modify, translate, disassemble, create derivative works based on, reverse-assemble, reverse-compile or otherwise reverse-engineer the DentalROI Content in whole or in part, or otherwise use, copy, reproduce or distribute any DentalROI Content except as expressly permitted hereunder. The provisions of this section shall survive the termination of this Agreement.
14. MISCELLANEOUS
14.1 Subscribing Organizations. If you are entering into this Agreement on behalf of a company, entity, or organization (a “Subscribing Organization”), then you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such organization to this Agreement; and you agree to be bound by this Agreement on behalf of such Subscribing Organization.
14.2 Entire Agreement, Amendment and Additional Terms. This Agreement is the entire and integrated agreement between the parties. It may only be modified in accordance with the “welcome” paragraphs at the beginning of this Agreement. In addition to this Agreement, when using particular plans, offers, products, services or features, you will also be subject to any additional posted guidelines, or rules applicable to such plan, offer, product, service or feature, which may be posted and modified from time to time. All such additional terms are hereby incorporated by reference into this Agreement, provided that in the event of any conflict between such additional terms and this Agreement, this Agreement shall prevail.
14.3 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho, without reference to the United Nations Convention on the International Sales of Goods. The Parties hereby submit to the exclusive personal jurisdiction of the state and federal courts located in Bonner County, Idaho.
14.4 Assignment. We may assign our rights and obligations under this Agreement. This Agreement will inure to the benefit of our successors, assigns and licensees. You may assign your rights and obligations under these Terms only after receiving DentalROI’s written approval, which shall not be withheld unreasonably.
14.5 Severability. If any provision of this Agreement, including without limitation the warranty disclaimer and liability limitation terms, shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.
14.6 Headings. The headings used in the Terms are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.
14.7 Attorney Fees, Court Costs. In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
14.8 Waiver. No waiver of any of the provisions of this Agreement by DentalROI is binding unless authorized in writing by an executive officer of DentalROI. In the event that DentalROI waives a breach of any provision of this Agreement, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of this Agreement and will in no manner affect the right of DentalROI to enforce the same at a later time.
14.9 Force Majeure. DentalROI will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond DentalROI’s reasonable control. While DentalROI will strive to perform the Services in the manner described in this Agreement, we do rely on third parties to provide us services on which we rely, and you acknowledge that we will not be liable when the failure of third parties prevents us from performing up to the standards we have adopted.
14.10 Taxes. You are responsible for all taxes and other governmental fees or charges that are payable by reason of this Agreement, other than taxes on DentalROI’s net income.
14.11 Independent Contractors. Notwithstanding any reference to being “partners” in this relationship, the parties to this Agreement are independent contracting parties. Neither party has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other party, except as expressly provided herein. The parties’ relationship in connection with this Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either party that otherwise might result from such a relationship.
14.12 Government Users. If you are a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), you acknowledge that the Service, Site, and Website constitute software and documentation provided as “Commercial Items” under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed made accessible to U.S. government Users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
14.13 Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.14 Notices. Except as explicitly stated otherwise, legal notices will be served, with respect to DentalROI, on DentalROI’s national registered agent, and, with respect to you, to the email address associated with your account. Notice will be deemed given 24 hours after the email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to either the mailing address or billing address provided during the sign-up process. In such case, notice will be deemed given three days after the date of mailing. Notwithstanding the foregoing, if a third party is paying for the Services on your behalf, we will also send any legal notice to such third party.
