End-User Terms and Conditions
This Asprodental Cloud Solution Terms and Conditions agreement (the “Asprodental End-User T&C”) sets forth the terms and conditions pursuant to which Asprodental provides software as a service (“SaaS”) basis (collectively the “Services”) to customers. For purposes of clarity, reference in this Asprodental End-User T&C to “Services” includes all SaaS and cloud products and services delivered by or on behalf of Asprodental under this Asprodental End-User T&C, including (without limitation) all text, graphics, audio, interfaces, software, computer code, updates, modifications, features, templates, associated media, data, trademarks, logos, slogans, names of products and services, documentation, and other content, services, and materials. This Asprodental End-User T&C is between Asprodental, a Delaware corporation with its principal place of business at 316 Olive Ave., #145, Huntington Beach, CA 92648, and its affiliates and subsidiaries (“Asprodental,” “us,” “our,” or “we”) and the purchaser identified on the Order Form (“End-User,” “Customer,” “you,” or “your”), and governs Customer’s access to and use of the Services effective as of the date executed by Customer.
This Asprodental End-User T&C consists of (i) these Asprodental Cloud Solution Terms and Conditions (as amended from time to time); (ii) the Exhibits identified in the Table of Exhibits below and attached hereto, which are hereby incorporated in and made a part of this Asprodental End-User T&C; and (iii) all Order Forms and other ordering confirmations, Order Forms, schedules, exhibits, and other documents executed by the parties and incorporated herein by reference. WITHOUT LIMITING THE FOREGOING, THIS Asprodental END-USER T&C CONTAINS A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER AGREEMENT, SET FORTH IN EXHIBIT B. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AND CLASS-ACTION WAIVER AGREEMENT, YOU AGREE THAT DISPUTES BETWEEN YOU AND ASPRODENTAL WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO GO TO COURT INDIVIDUALLY AND/OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
PLEASE READ THIS END-USER T&C CAREFULLY BEFORE ACCESSING, DOWNLOADING, INSTALLING, AND/OR USING THE SERVICES. BY ENTERING INTO THIS ASPRODENTAL END-USER T&C, YOU: (1) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS ASPRODENTAL END-USER T&C; (2) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS ASPRODENTAL END-USER T&C AND, IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS ASPRODENTALEND-USER T&C FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ORGANIZATION IDENTIFIED ON THE ORDER FORM AND IN THE SIGNATURE BLOCK BELOW; AND (3) ACCEPT THIS ASPRODENTAL END-USER T&C AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS.
Table of Exhibits
EXHIBIT SLA: Service Level Agreement and Support Services
EXHIBIT BAA: Business Associate Agreement
Definitions
For purposes of this Asprodental End-User T&C, the following terms shall have the meanings ascribed below:
“Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Asprodental End-User T&C and for whom access to the Services has been purchased as set forth in an applicable Order Form.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, transmitted, or otherwise made available by or on behalf of Customer or any other Authorized User through Customer’s use of the Services. Customer Data includes, without limitation, information, data, and other content about Customer and its clients and patients.
“Documentation” means Asprodental user manuals, handbooks, and guides relating to the Services provided by Asprodental to Customer relating to the Services.
“Order Form” means an attachment to this Asprodental End-User T&C signed by both Parties and incorporated in this Asprodental End-User T&C detailing the Services for each purchase by Customer hereunder, including the applicable Fees and other payment terms, the Customer practices, practice locations and scope of Authorized Users as noticed by Customer to Asprodental , Customer’s contact information for receiving notices under this Asprodental End-User T&C, and any other particulars applicable to the purchase of Services under the Order Form.
“Asprodental IP” the Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Asprodental IP includes Aggregated Statistics and any information, data, or other content derived from Asprodental’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data. “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Services. Terms used in this S Asprodental End-User T&C but not defined in this Definitions section above shall have the meaning ascribed to them elsewhere in this Asprodental End-User T&C.
License | Permitted Use
Provision of Access
The Services are available as a paid service accessible by Authorized Users as specified on Customer’s applicable Order Form. Subject to and conditioned on Customer’s payment of the Fees and Customer’s and its Authorized Users’ compliance with all terms and conditions of this Asprodental End-User T&C, Asprodental hereby grants Customer a revocable, non-exclusive, non-transferable, non-sub-licensable, limited right to access and use the Services during the Term solely for Customer’s internal business operations by Authorized Users in accordance with the terms and conditions of this Asprodental End-User T&C. Subject to and conditioned on Customer’s and its Authorized Users’ continuing compliance with the terms and conditions of this Asprodental End-User T&C, during the Term, Asprodental shall use commercially reasonable efforts to provide to Customer the Services in accordance with the terms and conditions hereof.
Downloadable Software
Use of the Services may require or include use of downloadable software. Asprodental grants Customer a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software Asprodental provides as part of the Services. Any Third-Party Products that consist of downloadable software are subject to the terms set forth under the Third-Party Products section below.
Use Restrictions
Customer shall not, and shall not permit any Authorized Users or others to, access and use the Services, any software component of the Services, or Documentation for any purposes beyond the scope of the access granted in this Asprodental End-User T&C. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users or others to: (i)copy, modify, or create derivative works of the Services, any software component of the Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation except as expressly permitted under this Asprodental End-User T&C; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) access or use the Services, any software component of the Services, or Documentation, in whole or in part, to build a competitive product or service or to build a product using similar ideas, features, functions or graphics of the Services; (vi) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts,agents or programs; (vii) interfere with or disrupt the Services or the data contained therein or processed thereby; (viii) use the Services or Asprodental IP for any commercial purposes (e.g., soliciting customers, resale, etc.) without Asprodental’’s prior written consent; (ix) access or use the Services via mechanical, programmatic, robotic, scripted, or any other automated means not provided as part of the Services; or (x) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule or the terms of this Asprodental End-User T&C.
CUSTOMER SHALL NOT PERMIT OR ENABLE A THIRD PARTY VENDOR TO ACCESS OR USE THE SERVICES WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT OF ASPRODENTAL.
Reservation of Rights
Asprodental reserves all rights not expressly granted to Customer in this Asprodental End-User T&C. Except for the limited rights and licenses expressly granted under this Asprodental End-User T&C, nothing in this Asprodental End-User T&C grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Asprodental IP.
Suspension
Notwithstanding anything to the contrary in this Asprodental End-User T&C, Asprodental may immediately suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Asprodental reasonably determines that (A) there is a threat or attack on any of the Asprodental IP; (B) Customer’s or any other Authorized User’s use of the Asprodental IP disrupts or poses a security risk to the Asprodental IP or to any other customer or vendor of Asprodental ; (C) Customer or any other Authorized User is using the Asprodental IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Asprodental ’s provision of the Services to Customer or any other Authorized User is prohibited by applicable law; or (F) Customer is in breach of this Asprodental End-User T&C, or Customer’s or any Authorized User’s use of the Asprodental IP is beyond the scope of the access granted in this Asprodental End-User T&C or otherwise violates the terms of this Asprodental End-User T&C; (ii) any vendor of Asprodental has suspended or terminated Asprodental ’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with the terms set forth under the Fees | Payment Terms section below. Any such suspension described in subclause (i), (ii) or (iii) above shall be referred to as a “Services Suspension” in this Asprodental End-User T&C. Asprodental shall use commercially reasonable efforts to provide written notice of any Services Suspension to Customer and to provide updates regarding resumption of access to the Services following any Services Suspension. Asprodental shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured, subject to and without limiting Asprodental’s rights under the Fees | Payment Terms section below. ASPRODENTAL WILL HAVE NO LIABILITY FOR ANY DAMAGE, LIABILITIES, LOSSES (INCLUDING ANY LOSS OF OR PROFITS), OR ANY OTHER CONSEQUENCES THAT CUSTOMER OR ANY OTHER AUTHORIZED USER MAY INCUR AS A RESULT OF A SERVICES SUSPENSION.
Third-Party Products
The Services may permit access to Third-Party Products. For purposes of this Asprodental End-User T&C, such Third-Party Products are subject to their own terms and conditions presented to Customer for acceptance within the Services by website link or otherwise. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products.
Fees | Payment Terms
Customer shall pay the fees as described in Fee Schedule (“Fees”) within thirty (30) days from the invoice date and without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date. Without limiting the foregoing, Customer hereby agrees to provide Asprodental with a valid credit card number or checking account number, unless otherwise designated in the relevant Order Form, to which Asprodental will automatically charge all Fees as they become due. All Fees shall be due in advance of the month incurred and any additional charges shall be due at the end of the month in which such charges are incurred. If payment by Customer’s credit card or other payment method is denied, or if Customer otherwise fails to make any payment when due, without limiting Asprodental ’s other rights and remedies: (i) Asprodental may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Asprodental for all costs incurred by Asprodental in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Asprodental may, at its sole discretion, suspend or terminate Customer’s and all other Authorized Users’ access to any portion or all of the Services and/or terminate this Asprodental End-User T&C. S Asprodental reserves the right to impose a reconnection fee in the event Customer requests to resume access to the Services after a previous suspension or termination of access. All Fees and other amounts payable by Customer under this Asprodental End-User T&C are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Asprodental ’s income. If Customer is a tax exempt entity, Customer hereby represents and warrants that Customer is not subject to state and local income taxes as well as sales, use, rental or property taxes and Customer agrees that Customer will deliver to Asprodental evidence of its tax-exempt status prior to accessing or using the Services. Further, Customer agrees that Customer shall indemnify, defend and hold harmless Asprodental and its officers, employees and agents for any and all losses, costs, expenses and liabilities (including but not limited to taxes, judgments, penalties and interest) associated with taxes found to be applicable to Customer and due from Customer with respect to the Services, or any portion thereof, or otherwise due in connection with this Asprodental End-User T&C (other than with respect to taxes due on the income of Asprodental ). Asprodental reserves the right to modify the Fees at any time upon notice, and such changes or modifications may be provided by an email message to Customer, or in such other form of communication as may be designated by Asprodental from time to time. Unless otherwise agreed by the parties, Customer receives a base document storage amount equal to 1TB (1 terabyte) for every Services license as set forth in the applicable Order Form. If Customer exceeds the permitted storage space, Customer will be responsible for the additional charges and fees related to the additional storage. The increase will be reflected on the next invoice, and will encompass any prior utilization greater than that permitted hereunder. Customer agrees that its purchase of a subscription to use the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Asprodental regarding future functionality or features.
Access | Customer Obligations
Access to the Services is available via a unique URL provided at the time of registration. Each Authorized User is required to provide an email address and password (“Account Credentials”) in order to access and use the Services. As between the parties, Customer is solely responsible for keeping Account Credentials associated with the Services confidential, including maintaining and implementing policies and procedures to protect the strict confidentiality of Account Credentials. Customer shall not, and shall not permit any Authorized Users or others to, sell or transfer Account Credentials to any other person or entity. Asprodental is not liable for any harm related to the theft of Account Credentials, Customer’s disclosure of Account Credentials, or Customer’s authorization to allow another person or entity to access and use the Services using Customer’s Account Credentials. Customer agrees to immediately notify Asprodental of any unauthorized use of Account Credentials or other need to deactivate Account Credentials due to security concerns, or in the event Customer suspects that any Account Credentials have been lost, stolen, compromised or otherwise misused. Customer will be responsible and liable for any charges, damages, or losses that may be incurred or suffered as a result of Customer’s failure to comply with this section. As part of the implementation process, Customer will provide an email address of an individual who will manage Customer’s subscription to the Services (the “Administrator”). The Administrator will have the authority to designate additional Authorized Users and/or Administrators. Any Administrator shall be deemed to have the authority to manage any Authorized Users. The Administrator shall be solely responsible for deactivating an Authorized User’s Account Credentials if the Administrator wishes to terminate access to the Services for any Authorized User. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Asprodental End-User T&C. Customer shall, and shall cause all Authorized Users to, abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services, including those related to data privacy, including but not limited to the Health Insurance Portability and Accountability Act and the Health Information Technology for Economic and Clinical Health Act (collectively referred to herein as “HIPAA”). In addition, Customer is responsible for abiding by any and all internal policies, procedures and regulations, which are required by the Customer. Customer shall use reasonable efforts to make all Authorized Users aware of the provisions of this Asprodental End-User T&C as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions. Customer shall: (i) notify Asprodental immediately of any unauthorized use of any Account Credentials or any other known or suspected breach of security; (ii) report to Asprodental immediately and use reasonable efforts to immediately stop any copying or distribution of content that is known or suspected by Customer or others to violate this Asprodental End-User T&C or the intellectual property rights of third parties; and (iii) not impersonate another user or provide false identity information to gain access to or use the Services. By accessing the Services, Customer represents and warrants that Customer has not falsely identified itself nor provided any false information to gain access to the Services and that Customer’s billing information is correct.
Service Level Commitments and Support Services
Customer acknowledges and agrees that the Services are hosted by Asprodental, or a subcontractor of Asprodental ’s choice. Subject to the terms and conditions of this Asprodental End-User T&C, Asprodental shall (i) use commercially reasonable efforts to make the Services available in accordance with the service level commitments set forth in Exhibit SLA (Service Level Agreement and Support Services); and (ii) provide the support services in accordance with the terms set forth in Exhibit SLA (Service Level Agreement and Support Services). CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY FAILURE TO ACHIEVE THE SERVICE LEVEL COMMITMENTS ARE AS SET FORTH IN EXHIBIT SLA (SERVICE LEVEL AGREEMENT AND SUPPORT SERVICES).
Aggregated Statistics
Notwithstanding anything to the contrary in this Asprodental End-User T&C, Asprodental may monitor Customer’s use of the Services and collect and compile data and information related to Customer’s use of the Services for use by Asprodental in an aggregated and anonymized manner so that the data is not identifiable to any particular client or patient of Customer (but may be identifiable to Customer’s practice), including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Asprodental and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Asprodental. Customer acknowledges that Asprodental may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Asprodental may (i) make Aggregated Statistics publicly available in compliance with applicable law; and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
Ownership
As between Customer and Asprodental, (a) Asprodental owns all right, title, and interest, including all intellectual property rights, in and to the Services and other Asprodental IP; and (b) Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. If Customer or any of Customer’s employees, contractors, or agents sends or transmits any communications or materials to Asprodental by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Asprodental is free to use such Feedback irrespective of any other obligation or limitation between Customer and Asprodental governing such Feedback. All Feedback is and will be treated as non-confidential. Customer hereby assigns to Asprodental on Customer’s behalf, and shall cause Customer’s employees, contractors, and agents to assign all right, title, and interest in, and Asprodental is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Asprodental is not required to use any Feedback. Customer hereby grant to Asprodental (i) a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary or appropriate for Asprodental to provide the Services to Customer or to exercise Asprodental’s rights under this Asprodental End-User T&C; and (ii) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Customer will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Asprodental End-User T&C or any applicable law. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Data.
Privacy | Data Collection, Use, and Disclosure
Information and data we collect through or in connection with the use of Asprodental’s website (www.asprodental..com) shall be subject to the terms of our Privacy Statement at https://www.asprodental.com/privacypolicy In the course of Asprodental ’s provision, and Customer’s receipt and use, of the Services, Asprodental will have access to certain Customer Data. Customer represents and warrants that it has the right, permission and authority to grant the rights to Asprodental granted under this Asprodental End-User T&C with respect to Customer Data, including without limitation, any notices required to, or grants of rights required from, clients, patients and third party vendors for Asprodental to perform the Services (including, to the extent applicable, to send communications to such clients and patients and to cause behaviorally targeted advertisements to be sent to them or displayed to them online) and to exercise Asprodental ’s rights with respect to Customer Data hereunder, pursuant to all applicable laws, rules, regulations, Customer’s own privacy policies and pursuant to any principles or guidelines promulgated by the Federal Trade Commission or Department of Health and Human Service. Customer shall at all times remain responsible for all content provided to Asprodental on behalf ofCustomer’s clients’ and patients’ behalf as part of the Services including but not limited to providing accurate information to include in the communication that Asprodental sends to Customer’s clients and patients. Any limitation or disclaimer of Customer’s liability set forth in this Asprodental End-User T&C or in any other agreement between the parties shall not apply to Customer’s breach of any representation, warranty or covenant set forth in this Privacy | Data Collection, Use, and Disclosure section or in the Responsibility for Data, Transmitting Messages, and Accounts section below. If Asprodental on its own or through any third party has notice that Customer Data stored by Customer and/or its Authorized Users is in violation of any law or infringes third party rights, Asprodental shall have the right to immediately suspend Customer’s access to the Services and the Customer Data. Customer shall be notified by Asprodental of any such action under this Privacy |Data Collection, Use, and Disclosure section when reasonable and possible. This Privacy | Data Collection, Use, and Disclosure section shall apply notwithstanding any contrary terms contained in this Asprodental End-User T&C or any other written agreement between the parties, including the Business Associate Agreement entered into in connection herewith.
Responsibility for Data, Transmitting Messages, and Accounts
Patient Information
The Services may enable Customer to upload and store confidential patient information to a site hosted by Asprodental (hereafter designated as the “Site”). State and Federal laws, as well as ethical and licensure requirements of Customer’s profession, may impose obligations with respect to patient confidentiality that may limit Customer’s ability to make use of certain Service or to transmit certain information to third parties. Customer represents and warrants that Customer will, at all times during the term of this Asprodental End-User T&C and thereafter, comply with all laws directly or indirectly applicable to Customer or its organization that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance and storage of patient information, including but not limited to HIPAA, and will use its best efforts to cause all persons or entities under Customer’s direction or control to comply with such laws. Customer is, at all times during the term of this Asprodental End-User T&C and thereafter, solely responsible for obtaining and maintaining or verifying that Customer or its organization has obtained and is maintaining all patient consents and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view patient information Customer transmits, and stores in connection with the Site and Services. Customer agrees that Asprodental, its licensors, and all other persons or entities involved in the operation of Services, have the right to monitor, retrieve, store and use patient information in connection with the operation of such Services, and are acting on Customer’s behalf in transmitting patient information. Asprodental will use commercially reasonable efforts to maintain the confidentiality of patient information Customer transmits and to prevent the disclosure of such information to third parties except in connection with the transmission, storage, retrieval, and disclosure of such information on Customer’s behalf and except as may be required or permitted by law. ASPRODENTAL CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR CUSTOMER’S USE OR MISUSE OF PATIENT INFORMATION OR OTHER CUSTOMER DATA TRANSMITTED, UPLOADED, OR STORED USING THE SITE OR THE SERVICES. FURTHERMORE, CUSTOMER AGREES TO INDEMNIFY ASPRODENTAL, ITS AFFILIATE COMPANIES, AND ITS/THEIR RESPECTIVE STOCK HOLDERS, SERVICE PROVIDERS, AGENTS, AND CONSULTANTS FROM ANY CLAIM, ACTION, OR CAUSE, TORT OR OTHERWISE, THAT MAYBE BROUGHT AGAINST SUCH PARTIES IN THE EVENT THAT PATIENT INFORMATION IS COMPROMISED DUE TO ITS NEGLIGENCE OR FAILURE TO SECURE ACCOUNT CREDENTIALS.
Responsibility for Customer Data
Customer is solely responsible for all Customer Data submitted, posted, transmitted or made available through Customer’s use of the Services. Customer may use the Services to use or transmit Customer Data or direct Asprodental to make contacts via any channel (in either case, “Messages”) to, or with, recipients of the Messages (“Recipients”). Customer acknowledges and agrees that Service Provider does not control or monitor Customer Data nor does Service Provider guarantee the accuracy, integrity, security or quality of such Customer Data. Customer represents and warrants that:
A. Customer has the legal right to use all Customer Data and to send all Messages to Recipients (after obtaining appropriate consents from Recipients) and the content, timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations, including, but not limited to, HIPAA and the Telephone Consumer Protection Act and implementing regulations at 47 CFR Part 64, Subpart L, as may be amended from time to time (collectively, “TCPA”);
B. Customer is the transmitter of all Customer Data and Messages and Asprodental is merely acting at Customer’s direction as a technology conduit for the transmission of such Customer Data and Messages;
C. Customer will not transmit or allow to be transmitted any Customer Data or Messages for which Customer does not have legally sufficient consent from Recipient, provided the transmission of Customer Data and Messages require consent under applicable law.
Consent to Transmit Messages
Customer is solely responsible for securing any and all consents or authorizations from Recipients that may be required by applicable law including for transmitting Messages through the Services. For the avoidance of doubt, in Customer’s use of the Services:
A. Customer represents and warrants that Customer has obtained prior express consent, as may be required by TCPA, HIPAA or other applicable law or regulation, prior to using Customer Data, including but not limited to, each residential or wireless phone number delivered by Customer to Asprodental in connection with the provision of the Services delivering an autodialed or pre-recorded Informational Healthcare Message (e.g., treatment and appointment reminders), and the intended Recipient is the current subscriber to the wireless phone number that will be receiving Messages through the Services.
B. Customer represents and warrants that Customer has obtained prior express written consent or authorization, as may be required under the TCPA, HIPAA, or other applicable law or regulation, prior to using Customer Data, including but not limited to, each residential or wireless phone number delivered by Customer to Asprodental in connection with the provision of the Services delivering an autodialed or pre-recorded Promotional, Marketing or Other Type of Message to Recipients.
C. Customer represents and warrants that Customer has implemented policies and procedures to honor a Recipient’s request to opt-out of any Messages, campaign or program transmitted by Customer through the Services.
D. Customer acknowledges and agrees that Asprodental assumes no responsibility or liability relating to or arising from Customer’s practices for obtaining legally-sufficient consents or authorization for use of Customer Data and transmission of Messages including, but not limited to, Customer’s process for assessing whether or not (i) prior express consent or prior express written consent or authorization is required by applicable law; (ii) any individual Recipient has provided legally sufficient consent or authorization; (iii) any individual Recipient is capable of providing a legally valid consent or authorization; (iv) the specific phrasing of any consent or authorization or permission document or process complies with the federal or state law applicable to use of the Customer Data or to Messages transmitted to such Recipient.
Customer’s use of Asprodental Message Templates and Customization Process
It is Customer’s sole responsibility to analyze, in consultation with Customer’s own legal counsel as appropriate, Message templates available within the Services and of any Message templates that Customer has customized for compliance with applicable laws and regulations including, but not limited to, TCPA and HIPAA. Customer agrees and acknowledges that Asprodental: (i) makes no representations as to any Message templates available within the Services and (ii) assumes no responsibility for Customer’s use of any Message templates or customized Messages within the Services.
Remediation and Revocation
In the event that a Recipient notifies Customer that they revoked their consent, authorization or other permission as may be required for Customer to transmit Messages through the Services, Customer will immediately cease to utilize the Services to transmit Messages to such Recipient and implement any and all steps that are required to deactivate any scriptor automated delivery of Messages scheduled to be sent to such Recipient. Customer acknowledges and agrees that if Asprodental reasonably believes that Customer has not complied with all applicable laws and regulations applicable to the use of Customer Data and transmission of Messages through Services, Asprodental may, at its option and in its sole discretion discontinue use of the Services for the transmission of Messages.
Confidentiality
From time to time during the Term, Asprodental and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Asprodental End-User T&C. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Asprodental End-User T&C, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five (5) years after the expiration or termination of this Asprodental End-User T&C; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Asprodental End-User T&C for as long as such Confidential Information remains subject to trade secret protection under applicable law.
This Section shall not in any way limit Asprodental’s rights to use Customer Data as permitted under the Ownership, Privacy | Data Collection, Use, and Disclosure, and Responsibility for Data, Transmitting Messages, and Accounts Sections above.
Electronic Signatures
You agree to be bound by any affirmance, assent, or agreement you enter into using the Services. YOU AGREE AND CONSENT TO USE ELECTRONIC SIGNATURES WHICH SHALL HAVE THE SAME FORCE AND EFFECT AS CUSTOMER’S WRITTEN SIGNATURE. Electronic signatures may take various forms on the Services, including clicking on an “I agree,” “I consent” or other similarly worded “button” or entry field in the Services. You consent for Asprodental to use your electronic signature applies to all Asprodental products and services you may purchase or use in the future.
Marketing and Communications
Asprodental may send product news and other marketing materials relevant to Customer’s use of the Services as Asprodental sees fit from time to time; provided, Asprodental will not sell your information to third parties. With respect to other types of messaging or communications, such as emails, text messages, and other messaging services, Customer can unsubscribe or opt out by either following the specific instructions included in such communications, or byemailing Asprodental with your request at the email address provided under Contact Us below.
Term | Termination
This Asprodental End-User T&C shall commence on the last date set forth in the signature block below. Any rights to access and use the Services provided under this Asprodental End-User T&C will not be in effect until the date of availability of the Services as set forth in the applicable Order Form (“Start Date”) and will remain in effect for an initial term of twelve months from the Start Date (unless otherwise stipulated in the Order Form) (the “Initial Term”). Upon the expiration of the Initial Term, this Asprodental End-User T&C will automatically renew for successive renewal terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”) equal in duration to the Initial Term at the then-current Fees, unless Customer provides Asprodental with written notice of Customer’s election not to renew at least ninety (90) days prior to the expiration of the then-current Term. Notwithstanding anything to the contrary contained in this Asprodental End-User T&C, Asprodental may terminate this Asprodental End-User T&C and the Services at any time and for any reason. Except as provided under the Fees | Payment Terms Section or as otherwise expressly provided under this Asprodental End-User T&C, in the event of a material breach of this Asprodental End-User T&C, the non-breaching party shall notify the breaching party in writing of the specific nature of the material breach and shall request that it be cured. If the breaching party does not cure the breach within thirty (30) days of such notice, the non-breaching party may immediately terminate this Asprodental End-User T&C on written notice to the breaching party. Customer will not be entitled to any refund of Fees paid if the Agreement is terminated for Customer’s material breach. All Fees associated with the Services are non-refundable, except as expressly set forth herein. ASPRODENTAL DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PREPAID PORTION OF THE SERVICES except in the case of non-performance against the Service Level Agreement as described in Exhibit SLA or in the event of Asprodental’s material breach of this Asprodental End-User T&C, subject to the applicable cure period. It is Customer’s responsibility to keep Customer’s contact and payment information current. Customer hereby authorizes Asprodental to continue billing Customer’s credit card on file, unless otherwise designated in the relevant Order Form, unless and until Customer cancels Customer’s subscription to the Services, and in the event that Asprodental is unable to collect the Fees from Customer’s credit card for any reason, Customer shall remain responsible for any uncollected amounts in accordance with the Fees | Payment Terms Section above. Upon the expiration or earlier termination of this Asprodental End-User T&C, Customer Data will be made available through read only access to the Administrator or a designated Authorized User for ninety (90) days after such expiration or termination. In addition to Customer Data being available through read only access for such ninety (90) days after expiration or termination of this Asprodental End-User T&C, Asprodental will provide Customer with a copy of Customer Data in SQL database format. Following such ninety (90) day period and confirmation by Asprodental of receipt by Customer of a copy of Customer Data, Customer Data will no longer be accessible. All provisions of this Asprodental End-User T&C, which by their nature should survive, shall survive termination of this Asprodental End-User T&C, including, without limitation, the Arbitration and Class-Action Waiver Agreement (Exhibit B), ownership provisions, warranty disclaimers, and limitation of liability.
DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED “AS IS” AND ASPRODENTAL SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ASPRODENTAL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ASPRODENTAL MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. ASPRODENTAL DOES NOT PROVIDE ANY FORM OF MEDICAL CARE, MEDICAL OPINION, MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND ASPRODENTAL DOES NOT EVALUATE THE NEED TO SEEK MEDICAL ATTENTION. THE CONTENT PROVIDED IN CONNECTION WITH THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. ANY JUDGMENTS OR DECISIONS ARE MADE AT CUSTOMER’S SOLE ELECTION. ASPRODENTA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO PROFESSIONAL QUALIFICATIONS, EXPERTISE, OR QUALITY OF WORK OF THEIR EMPLOYEES, THIRD-PARTY PRODUCTS OR CONTENT, OR CONTENT PROVIDED THROUGH THE SERVICES. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR THE DELIVERY OF MEDICAL CARE AND HEREBY ACKNOWLEDGES AND AGREES THAT NOTWITHSTANDING ANY REPRESENTATION OR WARRANTY MADE BY ASPRODENTA IN THIS ASPRODENTA END-USER T&C OR OTHERWISE, CUSTOMER IS RESPONSIBLE FOR ALL MEDICAL AND CLINICAL ACTIVITIES, DIAGNOSES AND OUTCOMES.
LIMITATION OF LIABILITY
IN NO EVENT WILL ASPRODENTAL BE LIABLE UNDER OR IN CONNECTION WITH THIS ASPRODENTAL END-USER T&C UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ASPRODENTAL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT WITH RESPECT TO ASPRODENTAL’S INDEMNIFICATION OBLIGATIONS UNDER THE INDEMNIFICATION SECTION BELOW, IN NO EVENT WILL ASPRODENTAL’’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS ASPRODENTAL END-USER T&C UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO ASPRODENTAL UNDER THIS ASPRODENTAL END-USER T&C IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
INDEMNIFICATION
Customer Indemnification
Customer shall indemnify, hold harmless, and, at Asprodental’s option, defend Asprodental and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”) arising from or relating to any third-party claim, suit, action, or proceeding (“Third-Party Claim”) (i) that the Customer Data, or any use of the Customer Data in accordance with this Asprodental End-User T&C, infringes or misappropriates such third party’s intellectual property rights; (ii) that the Customer Data, or any use of the Customer Data in accordance with this Asprodental End-User T&C, violates any applicable law or regulation, including any privacy laws; or (iii) based on Customer’s or any Authorized User’s gross negligence or willful misconduct or use of the Services in a manner not authorized by this Asprodental End-User T&C; provided that Customer may not settle any Third-Party Claim against Asprodental unless Asprodental consents to such settlement, and further provided that Asprodental will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Asprodental Indemnification
Asprodental shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any Third-Party Claim that the Services, or any use of the Services in accordance with this Asprodental End-User T&C, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Asprodental in writing of the Third-Party Claim, cooperates with Asprodental, and allows Asprodental sole authority to control the defense and settlement of such Third-Party Claim. If such a Third-Party Claim is made or Asprodental anticipates such a Third-Party Claim will be made, Customer agrees to permit Asprodental, at Asprodental’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Asprodental determines that neither alternative is reasonably available, Asprodental may terminate this Asprodental End-User T&C, in its entirety or with respect to the affected component or part,effective immediately on written notice to Customer. This Section sets forth Customer’s sole remedies and Asprodental’s sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. This Section will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.
Arbitration and Class Action Waiver
Arbitration
Both Customer and Asprodental acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of the Asprodental End-User T&C, Asprodental’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of the Asprodental End-User T&C and that, upon Customer’s acceptance of the Asprodental End-User T&C, Personnel will have the right to enforce this Arbitration Agreement against Customer as the third-party beneficiary hereof.
A. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of the Asprodental End-User T&C directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration.
B. If such good-faith negotiations do not resolve the dispute, any dispute, controversy or claim arising out of, relating to or in connection with the Asprodental End-User T&C, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration in Orange County, California. The arbitration will proceed in the English language in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“Rules”) then in effect by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. The Rules will govern payment of all arbitration fees.
C. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
D. The arbitrator shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of this Arbitration Agreement.
E. CUSTOMER AND ASPRODENTAL WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Customer and Asprodental instead choose to have any and all claims and disputes resolved by arbitration. In any litigation between Customer and Asprodental over whether to vacate or enforce an arbitration award, CUSTOMER AND ASPRODENTAL WAIVE ALL RIGHTS TO A JURY TRIAL, AND ELECT INSTEAD TO HAVE THE DISPUTE BE RESOLVED BY A JUDGE.
Class Action Waiver
A. The parties agree to arbitrate solely on an individual basis, and that the Asprodental End-User T&C (including this Arbitration Agreement) does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one customer’s or other person's claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the tribunal's power to rule on its own jurisdiction and the validity or enforceability of this Arbitration Agreement, the tribunal has no power to rule on the validity or enforceability of the agreement to arbitrate solely on an individual basis.
B. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of this Arbitration Agreement will remain in force.
Miscellaneous
Governing Law | Forum
Notwithstanding anything to the contrary, this Asprodental End-User T&C and Customer’s relationship with Asprodental hereunder shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Customer and Asprodental agree to submit to the exclusive jurisdiction of the courts located within the State of California to resolve any legal matter arising from this Asprodental End-User T&C or Customer’s use of the Services that for whatever reason are not submitted to arbitration, and all claims or cases challenging the enforceability or applicability of the arbitration provisions set forth in Exhibit B (Arbitration and Class-Action Waiver Agreement). Notwithstanding the foregoing, Customer agrees that Asprodental shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. Customer understands, acknowledges, and agrees that a printed version of this Asprodental End-User T&C will be admissible in judicial and administrative proceedings based upon or relating to this Asprodental End-User T&C or Customer’s use of the Services to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Modification of Agreement
Customer acknowledges and agrees that Asprodental reserves the right to modify these Terms and Conditions or any of its policies relating to the Services at any time, which modifications shall become effective immediately upon posting of an updated version of these Terms and Conditions on the Asprodental website at www.asprodental.com/policies.
Customer is responsible for regularly reviewing these Terms and Conditions. Customer may terminate these Terms and Conditions upon notice if Customer does not agree to any modification.
Export Regulation
The Services may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the U.S.
Assignment
Customer may not assign, transfer, delegate or sublicense any of Customer’s rights or obligations under these Terms and Conditions without Asprodental’s prior written consent. Any such attempted delegation, assignment, transfer, or sublicense shall be void and a breach of this Asprodental End-User T&C.
Entire Agreement
This Asprodental End-User T&C, together with the applicable Registration and/or Order Form(s), and all other Exhibits, Schedules, and other documents incorporated herein by reference, including without limitation the Exhibit SLA and Exhibit BAA, constitute the entire agreement between Customer and Asprodental with respect to the Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Services. In the event of a conflict between this Asprodental End-User T&C and any applicable Exhibit, Schedule, or other terms, the terms of this Asprodental End-User T&C shall govern with respect to such conflict, except as otherwise expressly set forth in the conflicting Agreement document. The terms of this Asprodental End-User T&C prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, Order Form, or such terms. Provision of services to Customer does not constitute acceptance of any of alternative terms and conditions and does not serve to modify or amend the terms or conditions of these Terms and Conditions.Severability. If any provision of this Asprodental End-User T&C are deemed illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Terms and Conditions will continue in full force and effect.
Waiver
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
Independent Contractor
Notwithstanding any provision hereof, for all purposes of this Asprodental End-User T&C each party shall be and act as an independent contractor and not as partner, joint venturer or agent of the other party and shall not bind nor attempt to bind the other party to any contract.
Notice
All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing (email sufficient where expressly permitted under these Terms and Conditions) and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Asprodental may give any notice required under this Asprodental End-User T&C to Customer by means of (i) a general notice in the Services, (ii) email to Customer’s email address on record, or (iii) by written communication sent by a nationally recognized overnight courier, first class mail or pre-paid post to Customer’s address on record. All notices by Customer to Asprodental required under this Asprodental End-User T&C shall be in writing and sent to the Asprodental address provided below with a copy sent via email to team@asprodental..com; provided, when determining when any such notice has been given, the notice sent to the Asprodental postal address below shall be used (i.e., not the copy sent via email):
Asprodental
Attn: Legal Department
316 Olive Ave., #145
Huntington Beach, CA 92648
IN WITNESS WHEREOF, the Parties have executed this Asprodental End-User T&C as of the last date set forth below.
ASPRODENTAL END-USER / CUSTOMER
ASPRODENTAL, INC., DBA Asprodental _____________________________
a Delaware corporation
By: ___________________________ By: __________________________
Name: Name:
______________________________ _____________________________
Title: Title:
______________________________ _____________________________
Date: Date:
______________________________ _____________________________
EXHIBIT SLA
Service Level Agreement and Support Services
1. DEFINITIONS
1.1. “Downtime” means any period greater than ten consecutive minutes within the Scheduled Available Time during which Customer is unable to access or use the Services, excluding any such period that occurs during any Scheduled Downtime and/or Recurring Downtime (as defined below).
1.2. “Scheduled Available Time” means 24 hours a day, 7 days a week, excluding any Scheduled Downtime.
1.3. “Scheduled Downtime” means the time period (which shall not be during regular business hours) identified by Asprodental in which it intends to perform any upgrades and/or maintenance on the Services or related systems and any overrun beyond the planned completion time.
1.4. “Uptime Percentage” means the total number of minutes of Scheduled Available Time for a calendar month minus the number of minutes of Downtime suffered in such calendar month (as determined by Asprodental in its sole discretion), divided by the total number of minutes of Scheduled Available Time in such calendar month.
2. SCOPE OF SERVICE LEVEL AGREEMENT
Downtime does not include:
• Any modification of the Services made by any person or third party entity other than Asprodental;
• Any errors in the Services software that do not cause critical failure;
• Any third party hardware or software used by Customer unless otherwise specified in the Agreement;
• Improper operation of the Services by Customer;
• Accidental or deliberate damage to, or intrusion or interference with, the Services;
• Use of the Services other than in accordance with any user Documentation or the reasonable instructions of Asprodental;
• Ongoing test or training instances of the Services provided to Customer; or
• Services, circumstances or events beyond the reasonable control of Asprodental, including, without limitation, any force majeure events, the performance and/or availability of local ISPs employed by Customer, or any network beyond the demarcation or control of Asprodental.
3. SCHEDULED DOWNTIME AND GUARANTEED UP TIMES
Asprodental will use commercially reasonable efforts to provide at least 24 hours’ prior notice before implementing any Scheduled Downtime. If the Services experiences an Uptime Percentage of less than 99.5% in any calendar month during the Term, Customer may be eligible for a credit (“SLA Credit”) equal to the percentage identified in the “SLA Credits Table” below, multiplied by Customer’s fees paid to Asprodental for the Services that are attributable to such month (calculated on a straight line pro-rated basis with respect to any fees paid in advance). The SLA Credit is Customer’s sole and exclusive remedy for any failure by Asprodental to meet any performance obligations pertaining to the Services, including, without limitation, any support obligations except as provided in the Agreement. Notice of Scheduled Downtime shall not be as required under the Notice Section of the Agreement, but will be by posting within the Services and on the Services support website. Customer acknowledges and agrees that the SLA Credit will not be issued automatically by Asprodental and, therefore, Customer shall request such SLA Credit from Asprodental.Asprodental reserves the right to temporarily suspend Customer’s access to the Services as set forth in the Agreement. Any such suspensions based on repairs, technical problems and outages will be subject to the SLA.
SLA Credits Table
UPTIME PERCENTAGE CREDIT PERCENTAGE
Equal to or greater than 99.5% = No credit
98.0% to 99.4% = 10%
Less than 97.9% = 20%
4. Availability of SLA Credits
Customers who are past due on any payments owed to Asprodental are not eligible to receive SLA Credits. Asprodental will issue SLA Credits, as determined in its sole discretion, either on future billing cycles or as a refund against fees paid. In order to receive any SLA Credit, Customer must notify Asprodental within 30 days from the time Customer becomes eligible to receive a SLA Credit, or forfeit Customer’s right to receive such SLA Credit. In no event will the total amount of SLA Credits if any, exceed the fees paid by Customer for the corresponding month.
5. Support Services
Asprodental will use commercially reasonable efforts to provide support services to assist Customer in resolving errors, answering general product use questions, and troubleshooting, subject to circumstances outside of Asprodental’s control (“Support Services”). Support Services do not include: (a) on-site service to Customer; (b) electrical, mechanical or other work with hardware, accessories or other devices associated with use of the Services; (c) work with any third-party equipment, software or services; or (d) professional services associated with the Services, including custom development or data modeling. Support Services communication methods are specified at www.asprodental.com/contact. Support Services are not available on Asprodental corporate holidays and national U.S. holidays.
6. DATA CONVERSION, IMPLEMENTATION, AND TRAINING
6.1. Data Conversion
Data conversion includes one live conversion - If Customer chooses not to use their live conversion and later requests at a later date they will be charged for an additional live conversion.
6.2. Implementation
Implementation and set-up fees are non-refundable.
6.3. Training
Customer is required to provide at least 48 hours’ notice of cancellation of a scheduled training session. Failure to provide this notice will result in a charge for the scheduled training service for that day in its entirety.
Purchased Training hours will be honored for up to 365 days from purchase date.
EXHIBIT BAA
Business Associate Agreement
This Business Associate Agreement (the “BAA”), effective as set forth below, is between ______________________ (the “Covered Entity”) and Asprodental, Inc. DBA Asprodental (the “Business Associate”).
1. DEFINITIONS.
For purposes of this BAA, the following terms shall have the following prescribed meanings.
1.1. “Breach” means the acquisition, access, use, or disclosure of Protected Health Information in a manner not permitted under the HIPAA Privacy Rule which compromises the security or privacy of the Protected Health Information.
1.2. “Data Aggregation Services” means, with respect to Protected Health Information created or received by the Business Associate, the combining of such Protected Health Information by the Business Associate with protected health information (as defined in HIPAA) received by the Business Associate in its capacity as a business associate (as defined in HIPAA) of another covered entity (as defined in HIPAA), to permit data analyses that relate to the health care operations of the respective covered entities, including the Covered Entity.
1.3. “Electronic Media” means electronic storage material on which data is or may be recorded electronically, including, for example, devices in computers (hard drives) and any removable/transportable digital memory medium, such as magnetic tape or disk, optical disk, or digital memory card, and transmission media used to exchange information already in electronic storage media. Transmission media includes the Internet, Extranet, or intranet, leased lines, dial-up lines, private networks, and the physical movement of removable/transportable electronic storage media. Certain transmissions, including of paper, via facsimile, and of voice, via telephone, are not considered to be transmissions via electronic media if the information being exchanged did not exist in electronic form immediately before the transmission.
1.4. “Electronic Protected Health Information” means Protected Health Information that is (i) transmitted by Electronic Media, or (ii) maintained in any medium described as Electronic Media.
1.5. “HIPAA” means the security and privacy requirements as reflected in 42 U.S.C. 1320d et. seq. and such regulations as may be promulgated thereunder from time to time (currently, 45 CFR 164.102 through 164.534).
1.6. “HITECH” means the Health Information Technology for Economic and Clinical Health Act of 2009 as reflected in 42 U.S.C. 17921 et. seq. and such regulations as may be promulgated thereunder from time to time.
1.7. “Principal Agreement” means the contract or agreement, whether in writing or otherwise, between the Covered Entity and the Business Associate, pursuant to which the Business Associate provides services relating to the Covered Entity of the type that require the parties to enter into this BAA pursuant to HIPAA.
1.8. “Protected Health Information” means individually identifiable health information of the Covered Entity that is (i) transmitted by Electronic Media, (ii) maintained in any medium described as Electronic Media, or (iii) transmitted or maintained in any other form or medium. “Protected Health Information” does not include individually identifiable health information: (i) in education records covered by the Family Educational Right and Privacy Act (20 U.S.C. section 1232g(a)(4)(B)(iv)); (ii) in records described at 20 U.S.C. section 1232g(a)(4)(B)(iv) ); (iii) in employment records held by a Covered Entity in its role as an employer; or (iv) regarding a person who has been deceased more than 50 years.1.9. “Unsecured Protected Health Information” means Protected Health Information that is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of a technology or methodology specified by the Secretary of Health and Human Services in the guidance issued under section 13402(h)(2) of HITECH. Any terms used, but not otherwise defined in this BAA, shall have the same meaning as those in HIPAA.
2. PERMITTED AND REQUIRED USES AND DISCLOSURES OF PROTECTED HEALTH INFORMATION.
2.1. The Business Associate shall be permitted to use Protected Health Information only as provided in the Principal Agreement and this BAA.
2.2. The Business Associate shall not use or further disclose Protected Health Information in any manner that: (a) would violate the terms of this BAA; or (b) if done by the Covered Entity, would violate HIPAA, except that (i) the Business Associate may use and disclose Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate, and (ii) the Business Associate may provide Data Aggregation Services relating to the health care operations of the Covered Entity.
2.3. The Business Associate may disclose Protected Health Information for the purposes described in 2.2(b)(i) of this Section only if the disclosure is required by law or the Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the person and that the person will notify the Business Associate of any instance where the confidentiality of the Protected Health Information has been breached.
2.4. The Business Associate may also de-identify Protected Health Information in accordance with HIPAA. Protected Health Information that has been de-identified does not constitute individually identifiable information and is not subject to the provisions of this BAA. The Covered Entity may disclose Protected Health Information to the Business Associate to use for the purpose of creating de-identified information whether or not the de-identified information is to be used by the Covered Entity.
3. RESTRICTIONS ON THE USE AND DISCLOSURE OF PROTECTED HEALTH INFORMATION.
Notwithstanding anything in the Principal Agreement to the contrary, the Business Associate shall:
3.1. Not use or further disclose Protected Health Information other than permitted or required by this BAA or required by law;
3.2. 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 by this BAA;
3.3. Implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the Electronic Protected Health Information that it creates, receives, maintains, or transmits on behalf of the Covered Entity as required by HIPAA;
3.4. Report to the Covered Entity any use or disclosure of the Protected Health Information not provided for by this BAA, or any security incident, of which it becomes aware. The Business Associate shall provide such notification to the Covered Entity without unreasonable delay and in no event later than ten (10) calendar days. This constitutes ongoing notice to the Covered Entity of unsuccessful security incidents like pings on firewalls, port scans and malware that do not result in unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system;
3.5. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), ensure that any subcontractor that creates,receives, maintains or transmits Protected Health Information on behalf of the Business Associate agrees to the same restrictions and conditions that apply to the Business Associate with respect to such Protected Health Information;
3.6. Make available Protected Health Information in accordance with an individual’s right to access such information in accordance with 45 CFR 164.524 if the Business Associate maintains Protected Health Information in a designated record set;
3.7. Make Protected Health Information available for amendment and incorporate any amendments to Protected Health Information in accordance with 45 CFR 164.526 if the Business Associate maintains Protected Health Information in a designated record set;
3.8. Make available Protected Health Information required to provide an accounting of disclosures of an individual’s Protected Health Information to the extent such accounting is required by, and in accordance with, 45 CFR 164.528;
3.9. Make its internal practices, books and records relating to the use and disclosure of Protected Health Information received from, or created or received by the Business Associate on behalf of, the Covered Entity available to the Secretary of Health and Human Services (or its delegate) for purposes of determining the Covered Entity’s compliance with HIPAA;
3.10. Report to the Covered Entity any Breach of Unsecured Protected Health Information known or reasonably believed by the Business Associate. Notice shall be in writing and provided to the Covered Entity without unreasonable delay, but no later than ten (10) calendar days following the discovery of the Breach. Such notice will include, to the extent possible, the identification of each individual whose Protected Health Information has been, or is reasonably believed by the Business Associate to have been accessed, acquired, used, or disclosed during the Breach. Such notice shall also include to the extent possible the following information: (i) a brief description of what happened, including the date of the Breach and the date of the discovery of the Breach, if known; (ii) a description of the types of Unsecured Protected Health Information that were involved in the Breach (such as whether full name, social security number, date of birth, home address, account number, diagnosis, disability code, or other types of information were involved); (iii) any steps individuals should take to protect themselves from potential harm resulting from the Breach; (iv) a brief description of what the Business Associate is doing to investigate the Breach, to mitigate harm to individuals, and to protect against any further breaches; and (v) contact procedures for obtaining additional information.
3.11. At termination of this BAA, if feasible, return or destroy all Protected Health Information received from, or created or received by the Business Associate on behalf of, the Covered Entity that the Business Associate still maintains in any form and retain no copies of such Protected Health Information or, if such return or destruction is not feasible, extend the protections of this BAA to the Protected Health Information and limit further uses and disclosures to those purposes that make the return or destruction of the Protected Health Information infeasible.
3.12. To the extent that the Business Associate is to carry out one or more of the Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, the Business Associate agrees to comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations.4. OBLIGATIONS OF COVERED ENTITY.
4.1. The Covered Entity shall notify the Business Associate of any limitation(s) in the Covered Entity’s notice of privacy practices in accordance with 45 CFR 164.520, to the extent that such limitation may affect the Business Associate’s use or disclosure of Protected Health Information.
4.2. The Covered Entity shall notify the Business Associate of any changes in, or revocation of, permission by an individual to use or disclose Protected Health Information, to the extent that such changes may affect the Business Associate’s use or disclosure of Protected Health Information.
4.3. The Covered Entity shall notify the Business Associate of any restriction to the use or disclosure of Protected Health Information that the Covered Entity has agreed to in accordance with 45 CFR 164.522, to the extent that such restriction may affect the Business Associate’s use or disclosure of Protected Health Information.
4.4. The Covered Entity shall not request the Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under HIPAA if done by the Covered Entity. Notwithstanding the foregoing language, the Business Associate may use or disclose Protected Health Information for Data Aggregation Services to the Covered Entity as permitted by 42 CFR 164.504(e)(2)(i)(B) or the management and administrative activities of the Business Associate in accordance with this BAA
5. AMENDMENT.
This BAA may be amended only in writing and only by the mutual consent of the parties. Notwithstanding the foregoing, this BAA shall automatically be amended to the extent minimally necessary to comply with any changes to HIPAA, including any changes as a result of HITECH.
6. TERM AND TERMINATION.
6.1. This BAA shall become effective as of the later of the date set forth below. This BAA shall remain in effect until the earlier of: (i) the date the parties mutually agree in writing to terminate this BAA; (ii) the date the Principal Agreement is terminated; or (iii) in accordance with the paragraph below. No separate notice shall be required to terminate this BAA upon termination of the Principal Agreement.
6.2. In the event of a material default by the Business Associate of any of its obligations under this BAA, the Covered Entity may terminate this BAA, provided that the Covered Entity has first notified the Business Associate, in writing, of such default and that the Business Associate has not cured the default within thirty (30) days after its receipt of such notice.
7. RELATIONSHIP TO PRINCIPAL AGREEMENT
It is the intent of the parties that the terms of this BAA be interpreted so as to cause the Principal Agreement to comply with the privacy and security requirements of HIPAA and the requirements of HITECH and the regulations promulgated thereunder. Accordingly, this BAA shall amend the Principal Agreement to the extent provided herein regardless of whether this BAA formally satisfies the requirements of the Principal Agreement for amendment of the Principal Agreement. To the extent any provisions of this BAA conflict with the terms of the Principal Agreement, this BAA shall govern.IN WITNESS WHEREOF, the Covered Entity and the Business Associate, each by their duly authorized representatives, have caused this BAA to be executed and delivered as of the last date written below.
COVERED ENTITY
By: ________________________________ Date_______________________________
Covered Entity Name: ________________________________
Address: ________________________________
City, State, Zip: ________________________________
BUSINESS ASSOCIATE
By: ________________________________ Date_______________________________
Asprodental, Inc. DBA Asprodental
Address: 316 Olive Ave., #145
City, State, Zip: Huntington Beach, CA 92648
EXHIBIT FS
End-User Fee Schedule
Volume Restrictions: Pricing is based on per location with a maximum of 25 operatories with viewing/capturing workstations. If a practice location exceeds 25 operatories with viewing/capturing workstations, the account will be subject to additional fees.
Billing: First payment will be made by the customer on the date of the first training session.
Pricing: Per customer, the pricing agreed on the final signed Asprodental quotation form will be formalized as the pricing and will supersede the pricing the Monthly Subscription Retail for the duration of the agreement.
