1. DESCRIPTION OF SERVICES; STATEMENT OF INTENDED USE
The Services are the component of one or more Dental Symphony Internet-based applications (the Modules) to which You subscribe; the Services encompass, but are not limited to, proprietary databases, announcements, record-keeping, patient-record generator, document manager, lists, specialized documents and graphics, discussions applications, analytical processing of information, and related features generally accessible by the Internet. Services also may include any software downloaded directly to your computer(s) as a part of the Services. Together, these Services are provided to a Subscribing Organization (sometimes referred to also as a “Site” or “Dental Office”) via the Internet to subscribers. By subscribing to the Services, the individual or the entity identified as the Subscribing Organization in the Site registration process will be assigned a unique URL, and its users or representatives who have been properly registered will be “Users.” The Services (including all information, applicable Modules and services contained or described in the Services or any Linked Sites, and the URL) may be accessed and used solely by the Subscribing Organization to which such URL is assigned and by its Users solely for purposes of the licensed practice of dentistry. WorthWhile may at any time terminate the Services or any feature of the Services, or the Subscribing Organization's or its Users' access to the Services as provided in Sections 4 and 5 hereof. All changes to the Services will be subject to these Terms.
2. REGISTRATION; BILLING INFORMATION; SITE ADMINISTRATOR
To establish a Site, the Subscribing Organization must complete the Site registration process. To become a User, an individual must be specifically identified to the Subscribing Organization, obtain its specific permission to access the same, and complete the User registration form. The Subscribing Organization and its Users must provide accurate and complete information upon Site registration (the "Registration Information"), as well as accurate and complete billing contact information on the billing form ("Billing Information"), and promptly update the Registration and Billing Information so that it is always accurate and complete. The person who completes the Site registration is the initial “Site Administrator” for the Site, and exercises certain options to initially determine the level of privacy and security for the Site. For example, s/he will determine who can be a User of the Site and the level of privileges that Users will possess. Each Site Administrator may designate other Users as successor Site Administrator, and is responsible for confirming that such person accepts such responsibility. Upon becoming a Site Administrator, a person will be deemed to agree to the obligations of a Site Administrator hereunder. All notices from WorthWhile (including in the name of Dental Symphony) to the Subscribing Organization will be given to the current Site Administrator at the e-mail address appearing on the Site. In its sole discretion, WorthWhile will determine the timing, nature, and content of all communications with Site Administrators and Users.
3. REGISTRATION CODE; PASSWORD; SECURITY
WorthWhile, in its sole discretion, and subject to its obligations relating to the “Business Associate Agreement” between the parties set out in Appendix 2, may terminate, cancel, suspend, limit, discontinue, and/or deactivate (temporarily or permanently) all or any part of the Services, any password, Site Name, registration, any part or all of the Site, and/or the Subscribing Organization's and/or its Users' access to and use of any part or all of their personally identifiable information (collectively, "Personal Information"), Registration Information, Site Information, the Services and/or the Site, and/or their rights under these Terms (all of the foregoing rights and actions to "Terminate" or a "Termination"), all at any time, including without limitation if (a) WorthWhile believes that the Subscribing Organization or a User has violated or is threatening to violate these Terms or other policy of WorthWhile , its Third Party Providers or applicable law, has misused or is threatening to misuse the Services, or has conducted or is threatening to conduct any fraudulent, abusive, or illegal activity, (b) WorthWhile believes that the Subscribing Organization or any of its Users has accessed or is to attempting to access any part of the Services or Content, or the Site, or Registration Site or Personal Information of any other Subscribing Organization or User, (c) the Subscribing Organization assigns its rights to the Site or the Site Name, (d) WorthWhile discontinues the Services or any part thereof for any reason, (e) the subscribing Organization or a User makes excessive use of bandwidth, or transmits excessive numbers of e-mails, notices or other transmissions inconsistent with the number of Users registered and using the Service in the sole discretion of WorthWhile , (f) WorthWhile has reason to believe the Site is not a duly licensed dental practice according to the terms of the jurisdiction in which it is located. WorthWhile reserves the right to investigate the validity of any complaint presented to it which alleges that any site has been used to conduct fraudulent, abusive or illegal activity, or has been used in any way which violates these Terms. Such investigations may include logging on to the site and/or reviewing any data or information contained therein.A Termination described in Section 4(a), (b), (c), or (d) may be made with or without notice and will be effective immediately. In the event of Termination, WorthWhile may remove and/or permanently delete from its servers all of the Subscribing Organization's and its Users' Site Information, Registration Information and Personal Information and/or all backup copies thereof, without further notice and without any liability of WorthWhile to the Subscribing Organization, its Users or any third party, subject however to any conflicting terms in the HIPAA-related “Business Associate Agreement” between the parties set out in Appendix 2 and incorporated herein for all purposes as if set out here verbatim. Notwithstanding anything in these Terms to the contrary, if WorthWhile reasonably believes that the Subscribing Organization or any of its Users has violated or is threatening to violate applicable law or the provisions of Section 4(b) or has conducted or is threatening to conduct any fraudulent, abusive, or illegal activity, WorthWhile may, without any notice, refer the Subscribing Organization and/or its Users to appropriate law enforcement agencies, and/or immediately remove and/or permanently delete the Site Information, Registration Information and/or Personal Information as otherwise provided herein. If a Subscribing Organization or its Users are the subject of a Termination described in this Section 4, they may not re-register for or continue to use the Services in any manner or for any reason. The provisions of Sections 6, 10, 13, 14, 15 and 16 will survive any Termination under Section 4 or 5 and any discontinuance.
5. ACCESS TO SERVICES; SUPPORT; THIRD PARTY PROVIDERS; RIGHTS
a. To use the Services, the Subscribing Organization and its Users must obtain and pay any fees for access to the World Wide Web and provide all equipment necessary to make such connection, including a computer and modem or other access device. The Subscribing Organization and its Users may access the Services and the Site only by means of the interface provided by WorthWhile. Although the Services and Site may be generally accessible worldwide, access may not be available to all persons or in all locations. WorthWhile reserves the right to limit access to the Site or the Services by any Subscribing Organization, User, or person, or from any location. The Services may contain links to other World Wide Web sites of WorthWhile's partners, its affiliates, and providers of content or services to WorthWhile in delivering the Services or to its Subscribing Organizations as part of the Services (collectively, "Third Party Providers") and to other resources and sites (all such sites collectively, "Linked Sites"). Such links are provided for the convenience of the Subscribing Organization and its Users only, and are not reviewed, monitored or controlled by WorthWhile. WorthWhile does not endorse, is not responsible for and makes no representation or warranty concerning the reliability or availability of these Linked Sites or Third Party Providers or the accuracy, reliability, completeness or authenticity of their contents, advertising or products, and is not responsible for web casting or any transmission received from any Linked Site. Use of Linked Sites is subject to the privacy policies, terms of service and other conditions applicable to such Sites. All linking to Linked Sites is at the sole risk of the Subscribing Organization and its Users. Any concerns regarding any Linked Site or its content, products or services should be directed to the administrator or webmaster of such Linked Site.
b. In particular, the link to “EBD” (“evidence-based dentistry”) within any Moduleprovides access to topics from the American Dental Association’s Center for Evidence-Based Dentistry™. The topics themselves link directly to articles maintained by the American Dental Association’s Center for Evidence-Based Dentistry™as Linked Sites. The articles are third-party content owned and maintained by the American Dental Association or by others. With respect to any content linked through “EBD” both the American Dental Association and WorthWhile disclaim all warranties, express or implied, including but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or other violations of rights.
All fees are payable in US dollars unless invoiced or charged by WorthWhile in another currency, in which case the fees must be paid in the currency invoiced. All transmission fees, currency translation fees, wire and bank fees chargeable by or deducted from remittances by any bank, including the transmitting, intermediary or recipient bank are the responsibility of the remitting party (Subscribing Organization). Merchant fees charged by Credit Card Companies assessed to WorthWhile, if any, will be absorbed by WorthWhile and are expressly not the responsibility of the remitting party (Subscribing Organization).
The obligation to pay fees rests with the Subscribing Organization. An individual may, however, elect to furnish a personal credit card for the purpose of paying site fees in which case the furnishing of such information is considered his/her authorization for WorthWhile to use the card for any and payments related to the site. The Services are provided on a subscription basis. Such subscription charges entitle the Subscribing Organization and its Users to use the Services. Subscribing Organizations and its Users agree that should subscription charges not be paid in a timely manner, WorthWhile may, in its sole discretion, discontinue service until such time as the payments are brought current. Subscribing Organizations and its Users further agree that should payment for the Services be made to a third party in connection with its offering of our service, and said third party fails to make payments to WorthWhile, WorthWhile may, in its sole discretion, discontinue service until such time as the payments are brought current.
The Monthly Subscription Fees are charged in accordance with WorthWhile's published prices at the time of initial subscription to the Services, but may vary according to discretionary criteria established from time to time by WorthWhile.
Sites and Users are charged beginning the date the delivery of Services to Subscribing Organization’s Site are authorized, but Subscribers may be credited with a “free period” where the Services may be used without charge after which a billing cycle will begin. Up until such billing occurs, Services may be cancelled without payment or penalty. Monthly Billing will begin at the end of the “free period” allowed for use of the Services. Fees will be assessed based upon Site Usership as of the billing date. Subscription changes (additions to or subtraction of Users in sufficient number to affect the subscription charges) will be made effective the first business day such changes are received and processed by WorthWhile. It is the responsibility of the Site Administrator(s) to monitor and update their Site Usership. WorthWhile will not be responsible for deleting site User records. It will do so if requested only consistent with the terms of the Business Associate Agreement between the parties set out in Appendix 2. De-identified patient information may be retained by WorthWhile. Deletion of User records must be done by a Site Administrator. Subscription fees are billable to the person designated by the Subscribing Organization as indicated in the Site billing contact information record, which may be accessed and updated only by a Site Administrator through the "My Account" feature. It is the Subscribing Organization's responsibility to ensure that the billing contact information is complete and accurate at all times. Only a Site Administrator may cancel a site subscription. Cancellation may be made at any time by any Site Administrator through an e-mail instruction from a Site Administrator e-mail account as contained on the Site. Cancellation requests must be made through the "Contact us" link at the bottom of the Console or other page where the link appears. Any cancellation will take effect, for billing purposes, as of seven business days after the day on which the cancellation request is received by WorthWhile. Upon receipt of a valid cancellation request, WorthWhile may deactivate the Site at any time. Unless and until a cancellation request is received by WorthWhile, the Subscriber agrees that WorthWhile may automatically invoice or charge the credit card on file for the full amount of each succeeding month’s subscription, or in the case of an annual subscription, for each succeeding year.
WorthWhile reserves the right to increase the fees it charges for access by the Subscribing Organization and its Users to the Services, provided, however, that WorthWhile will provide no less than thirty (30) days advance notice to existing Subscribers of its intention to do so.
Fees for other service are also charged in accordance with the prices in effect at the time of purchase, or renewal.
7. CDT CODES
If You are a subscriber to Modules that invoke and use the CDT Codes (CDT 2009/2010 or subsequent editions of the CDT Codes published and owned by the American Dental Association) their use within Dental Symphony is governed by the terms of Appendix 1, which is incorporated herein for all purposes as if set out here verbatim. You acknowledge that You are the End User for the purposes of Appendix 1 and that ADA is the American Dental Association.
8. STORAGE AND FILE DOWNLOAD/BANDWIDTH LIMITATIONS
Digital-information storage space on WorthWhile’s servers for information generated by Dental Symphony modules is currently provided the Subscriber as a part of Your Subscription. If it becomes problematic for WorthWhile to store data or information at the Site due to space constraints, Subscriber agrees that WorthWhile shall not be responsible or liable for any insufficient storage capacity or failure to store data or information on its servers. WorthWhile reserves the right to limit the file download and/or bandwidth capacity of any or all sites, in its sole discretion, if it deems such limitation to be in the best interests of the operating performance across all sites.
Collection, Use and Transfer of Your Information: You can visit some Dental Symphony site without disclosing your personally-identifiable information ('personal data'). However, you may choose to provide us with your personal data, for example when you contact us, subscribe to our services, register for any activities and programs available on our website or when you request information or services. You also may decide to provide us voluntarily with personal data of a third person, such as an employee or colleague. In such case, we assume that you have an unrestricted permission of such person to provide such personal data to Dental Symphony. Dental Symphony may use suppliers to collect, process, store, use, analyze and/or transfer the data on its behalf. In such case, it is Dental Symphony's practice to require that these suppliers handle the personal data they process or transfer in a manner consistent with Dental Symphony's policies. By submitting the personal data to us, you acknowledge and agree with your data being processed and/or transferred on Dental Symphony's behalf by its suppliers. Dental Symphony will handle the information we learn from you from your visit to our website in the following manner:
IP Addresses: An IP address is a number automatically assigned to your computer whenever you access the Internet. All computer identification on the Internet is conducted with IP addresses, which allow computers and servers to recognize and communicate with each other. Dental Symphony may collect IP addresses in order to conduct system administration and website analysis.
Cookies: Our website may place a text file called a "cookie" in the browser files of your computer. Cookies are pieces of information that a website transfers to an individual's computer for record keeping purposes. Our cookies do not contain personal information. They do enable Dental Symphony to relate your use of the website to information that you have specifically and knowingly provided to our website.
Contacting Dental Symphony: If you have any questions or complaints about the practices of this website, you can contact us through the link at the bottom of the page at www.dentalsymphony.com entitled "Contact Us", to the attention of the Privacy Officer.
Revisions to Privacy Statement: Dental Symphony may change this Privacy Statement at any time by posting revisions to our website. Your use of the website constitutes acceptance of the provisions of this Privacy Statement and your continued usage after such changes are posted constitutes acceptance of each revised Privacy Statement.
10. SUBSCRIBING ORGANIZATION'S AND USERS' RESPONSIBILITIES; MATURE AUDIENCE SITE DESIGNATION
All Site Information, Registration Information, Personal Information and other information stored, publicly posted or privately transmitted through the Services by the Subscribing Organization or its Users, the confidentiality and privacy of all of the same and of the Site, and all uses of the Services and the Site by the Subscribing Organization and its Users are their sole responsibility. Without limitation, the Subscribing Organization and its Site Administrator(s) are responsible for monitoring the contents, use of and access to the Site and all such Information, and use of and access thereto by Users who are minors. Without limitation, the Subscribing Organization agrees that it and its Users will use the Services and the Site only in accordance with these Terms, and will not use them to:
a. upload, store, post, link to, email or otherwise transmit, distribute, publish or disseminate any Site Information, Content or other information (i) that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, objectionable or libelous, or promotes such activity; (ii) that (or the transmission, distribution, publication or dissemination of which) infringes any patent, trademark, trade secret, copyright, or other rights or proprietary rights of any party, violates any contractual or fiduciary relationships (such as inside, proprietary or confidential information); (iii) that is harmful to minors; or (iv) that contains software viruses, trojan horses, worms, time bombs, cancelbots or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or circumvent any "copy-protect" devices, any other harmful or disruptive program, or any warez, cracks, hacks, associated utilities or other piracy related information;
b. provide inaccurate, incomplete, outdated or misleading Registration Information or e-mail addresses, create a false identity or manipulate identifiers to mislead or to disguise the origin of any information stored on the Site or transmitted through the Services, or impersonate or otherwise misrepresent any affiliation with any person or entity;
c. modify, use, download, publish, upload, post, transmit, transfer, sell, reproduce, create new or derivative works from, license, distribute, perform, display, broadcast, exploit or otherwise copy any portion of the Services, Site Name, or any Content, or any products or other services (including software) obtained there from, or permit access to the same by any unauthorized person or entity;
d. interfere with or disrupt any links or click-through URLs provided through the Services, or servers or networks connected to the Services, or violate the regulations, policies or procedures of such servers or networks, or interfere with another Subscribing Organization's or User's use and enjoyment of the Services;
e. attempt to gain unauthorized access to the Services, Content, other Sites, Registration Information, Site Information or Personal Information, or other computer systems, servers or networks connected to the Services; or
f. violate (intentionally or unintentionally) any applicable local, state, national or international law or regulation, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any securities exchange of any jurisdiction, laws regarding the transmission through the Services of technical data or software exported from the United States and/or the country(ies) in which the Subscribing Organizations and/or its Users reside, and laws and regulations regarding online conduct and acceptable content of the Subscribing Organization's and its Users' transmissions, Site and Site Information.
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WorthWhile regularly backs up Site Information stored on the Site, and stores the same for a limited time. Subject to the limitations set forth in Sections 4 and 5 hereof, upon the Subscribing Organization's request and payment of the then-current fee, we will make reasonable efforts to restore Site Information. WorthWhile will have no liability for any failure to back up or restore such Site Information, or for interruptions, delay or suspension of access to or unavailability of Site, Registration or Personal Information, or any loss of such Information, data or transmissions.
13. WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY
Warranty Disclaimer. YOU UNDERSTAND AND AGREE THAT THE SERVICES, AND ANY ASSOCIATED SOFTWARE, ARE PROVIDED “AS IS” AND “AS AVAILABLE." WorthWhile EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WorthWhile MAKES NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES, THE SITE, OR THAT THE SERVICES WILL MEET ANY SUBSCRIBING ORGANIZATION OR USER REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES AND THE SITE ARE AT THE SUBSCRIBING ORGANIZATION’S AND/OR USER’S SOLE RISK. THE SUBSCRIBING ORGANIZATION AND ITS USERS WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THE SUBSCRIBING ORGANIZATION, THE USER, THE SITE, AND ANY LINKED SITES RESULTING FROM THE USE OF SUCH SERVICES OR WEBSITE. Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to either the Subscribing Organization or the User. In that event, such warranties are limited to the minimum warranty scope and period allowed by applicable law.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DENTAL SYMPHONY OR WORTHWHILE, INC., ITS SUBSIDIARIES, OFFICERS, EMPLOYEES, SPONSORS, PARTNERS, CLINICAL TEAM OR CLINICAL TEAM MEMBERS, SUPPLIERS OR AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES, OR ANY OTHER PECUNIARY LOSS) INCLUDING BUT NOT LIMITED TO CLAIMS ARISING OUT OF, OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES, THE SITE, OR ASSOCIATED SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF WorthWhile HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, WorthWhile’S MAXIMUM CUMULATIVE LIABILITY AND THE SUBSCRIBING ORGANIZATION’S AND ITS USERS’ EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE SUBSCRIBING ORGANIZATION FOR THE SUBSCRIPTION SERVICES (EXCLUDING ANY PER USE OR PROFESSIONAL SERVICE FEES) IN THE PREVIOUS 12 MONTHS EVEN IF ANY REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to either the Subscribing Organization or its Users.
BECAUSE THE DELIVERY OF WorthWhile’s SERVICES IS LIMITED TO LICENSED DENTAL PROFESSIONALS OR THOSE UNDER THE DIRECTION OF DENTAL PROFESSIONALS, THE SERVICES OF WorthWhile ARE NOT INTENDED TO, NOR DO THEY, SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF SUCH DENTAL PROFESSIONALS. WorthWhile DOES NOT GUARANTEE THE ACCURACY, CURRENCY, OR APPLICABILITY OF ANY INFORMATION, KNOWLEDGE, OR OPINION EXPRESSED IN ANY OF ITS SERVICES. ALL DENTAL PROFESSIONALS ARE SPECIFICALLY ADVISED TO EXERCISE THEIR OWN INDEPENDENT PROFESSIONAL JUDGMENT ABOUT THE VALUE, USE, AND APPLICABILITY OF ANY AND ALL DENTAL SYMPHONY SERVICES TO DENTAL PATIENTS.
The Subscribing Organization and its Users agree, to the extent allowed under federal law, to indemnify and hold WorthWhile, WorthWhile, Inc., or their affiliates, officers, employees, sponsors, and Clinical Team members harmless from any claim, loss, cost, expense, demand, or damage, including reasonable attorneys' fees, arising directly or indirectly out of (a) the Subscribing Organization's or its Users' use of or connection to the Services, this Website, the Site, or the documentary materials provided as a part of the Services, (b) Site Information or other information transmitted or stored by the Subscribing Organization or its Users through or on the Site or the Services, (c) activities in connection therewith, or (d) the Subscribing Organization's or its Users' breach of this Agreement or violation of the rights of any other party.
15. PROPRIETARY RIGHTS
The Services, this Website, and all Content, and all trademarks, including but not limited to all material distributed or presented to the Subscribing Organization or its Users through the Services by WorthWhile or its Third Party Providers or on the Linked Sites, and all rights and intellectual property rights therein, are the sole property of WorthWhile, or its Third Party Providers, and are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Any comments, suggestions or ideas or other information submitted to WorthWhile through this Website, in writing, by e-mail or otherwise to WorthWhile will be the property of WorthWhile and WorthWhile will have all rights therein without any obligation to compensate the Subscribing Organization or its Users. Any rights not expressly granted herein are reserved. All materials published by WorthWhile and its Third Party Providers, including but not limited to text, graphics, names, logos, service marks and trademarks, and information contained on any Linked Sites (collectively, the "Content") are the property of or controlled by WorthWhile or the party credited as the provider of the Content.
The Subscribing Organization and its Users will respect all proprietary rights of WorthWhile and its Third Party Providers in and to the Content, Site Name, Services, and Site, any products or other services obtained there from.
a. Assignment. Neither party may assign or delegate their respective obligations under this Agreement either in whole or in part, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign their rights and obligations under this Agreement as the result of a merger, consolidation, acquisition or the sale of all or substantially all of the assets of the assigning party and WorthWhile may assign its rights and delegate its obligations in whole or in part to an affiliate, provided that either party may terminate this agreement upon 10 days notice, if the assignee can be reasonably considered a competitor of the non-assigning party.
b. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas as applied to agreements entered into and to be performed entirely within Texas between Texas residents. The parties hereby submit to the jurisdiction of, and waive any venue objections against state and federal courts in Tarrant County, Texas in any litigation arising out of the Agreement.
c. Interpretation and Conflicting Terms. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. WorthWhile shall not be bound by terms additional to or different from those in this Agreement that appear in Your acknowledgements, purchase orders, quotations, prior understandings, or in any other communications between the parties, unless such terms are expressly agreed to by amendment to this Agreement, and are executed by both You and WorthWhile.
d. Force Majeure. Except for Your obligation to pay for the Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
e. Waivers. The waiver of any one breach, default or right granted under this Agreement will not constitute the waiver of any subsequent breach, default or right granted. Any provision of this Agreement held to be illegal or unenforceable will be deemed amended to conform to applicable laws or regulations, or if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this Agreement will continue in full force and effect.
f. Use of the Services; No Reverse Engineering, Decompilation, Disassembly or Circumvention. You may use the Services only at times in which You are an active participant, and as permitted under the terms and conditions of this Agreement or other written agreements between You and WorthWhile. You may not resell, distribute, use on a timeshare or service bureau basis, or otherwise directly generate income from the Services. You may not and will not modify, make derivative works of, disassemble, decompile or reverse engineer the Site, Services or any component thereof. You may not, and you will not encourage, assist or authorize any other person to, modify, reverse engineer, decompile or disassemble the Site, Services or any component thereof, whether in whole or in part, create any derivative works from or of the Site, Services or any component thereof, or bypass, modify, defeat or tamper with or circumvent any of the functions or protections of the Site, Services or any component thereof or any mechanisms operatively linked to the any of them, including, but not limited to, augmenting or substituting any digital rights management functionality of the Site, Services or any component thereof.
g. Export Law. You acknowledge that the Services are subject to export control laws and regulations. You represent that you are not a citizen of an embargoed country or prohibited end user under applicable export and anti-terrorism laws, regulations and lists. You will not use, export or allow a third party to use or export the Services in any manner that would violate applicable law, including but not limited to applicable export control laws and regulations.
17. REPRESENTATIONS OF SUBSCRIBING ORGANIZATION
By registering and accepting these Terms, the initial Site Administrator on behalf of the Subscribing Organization and all its Users, and each User on its individual behalf, hereby represents and warrants to WorthWhile that: (a). s/he is the duly authorized Site Administrator or User of the Subscribing Organization and has the authority and legal capacity to register and accept these Terms on behalf of the Subscribing Organization and to bind the Subscribing Organization thereto, and/or to register and accept the same on his/her own behalf and to be bound thereby; (b). all Users are at least 18 years of age; (c). (i) the Subscribing Organization and its Users are eligible to establish a Site and to become Users by virtue of being a licensed dental professional, licensed dental professional organization, or employees of such, (ii) the Subscribing Organization and its Users accept and agree to be bound by these Terms, and the Subscribing Organization will take all steps necessary to ensure that its Users so accept and are bound by the same, without limitation or qualification, and (iii) the Subscribing Organization and Users will regularly review these Terms, and in the event of any change, the Subscribing Organization's or User's failure to promptly discontinue use of the Services and Site as provided in Section 4 hereof will be deemed to indicate the agreement of the Subscribing Organization, on its own behalf and on behalf of its Users, and of its Users to accept and be bound by such changes.
18. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to WorthWhile, 1616 Pennsylvania, Fort Worth, Texas 76104,(USA); (817) 921-2932; or through clicking on the "Contact Us" link at the bottom of the page at www.dentalsymphony.com.
19. COPYRIGHT AND TRADEMARK INFORMATION
All trademarks, service marks and logos used in this Website are the property of their respective owners. All contents of this Website are the property of WorthWhile, Inc. and/or its suppliers.
All trademarks, service marks and logos used in this Website are the property of their respective owners. All contents of this Website are the property of WorthWhile, Inc.and/or its suppliers.
Minimum Terms & Conditions
1. End User License Grant
End User is hereby granted a non-exclusive, non-transferable right to use the CDT at End User Sites solely as part of the Bundled Product and solely for End User’s internal business purposes. “End User Site” means each separate geographic location where End User maintains a dental office. This License grants End-User the right
(a) to install and use the CDT on a computer system located at End User Site;
(b) to retrieve CDT codes, descriptors and nomenclature via commands contained in the Bundled Products for the exclusive use of End User;
(c) to reproduce and distribute a partial listing of the CDT codes, nomenclature and descriptors in various printed and electronic forms and reports for purposes of claims processing, billing and patient treatment, via commands contained in the Bundled product;
(d) to print limited portions of the CDT solely for the exclusive use of End User; and
(e) to print a complete listing of the CDT codes, nomenclature and descriptors solely for the exclusive use of End User.
As used herein, End User shall mean End User and End User’s employees.
2. End User License Restrictions
Except as expressly permitted in the “License Grant”, End User may not and may not permit anyone else to (a) copy the CDT; (b) alter, amend, change or modify the CDT, including the CDT codes, nomenclature and descriptors or other content of the CDT; (c) remove any copyright or other proprietary notices, labels or marks from the CDT or from Output created by using the Bundled Product; (d) distribute, sell, assign, lease or otherwise transfer the CDT, including the Code or any portion thereof, in any printed, machine-readable or other form to any other person, firm or entity, including but not limited to, as Output; or (e) use the CDT, whether on a time-sharing, remote job entry or other multiple user arrangement. End User shall take reasonable measures to maintain the security of the CDT.
The restriction set form in section 2(b) shall not limit End User’s right to add additional content to the Bundled Product (“End User Content”), provided: End user does not alter, amend, change, or modify existing CDT codes, nomenclature and descriptors or other CDT content, and End User’s Output does not claim or otherwise imply that such End User Content is owned, created, approved or endorsed by ADA.
IN NO EVENT SHALL END USER USE THE BUNDLED PRODUCT FOR OR ON BEHALF OF ANY THIRD PARTY, INCLUDING BUT LIMITED TO USE OF THE BUNDLED PRODUCTS TO PROVIDE CONSULTING, TIME-SHARING OR OUTSOURCING SERVICE OR TO ACT AS A SERVICE BUREAU OPERATION. END USER IS EXPRESSLY PROHIBITED FROM DISTRIBUTING OUTPUT, INCLUDING THE CODE OR PORTIONS, THEREOF, TO ANY PERSON, FIRM OR ENTITY.
3. Ownership of Intellectual Property
End User acknowledges and agrees that ADA owns all right, title and interest (including all copyrights and other intellectual property rights) in the CDT (in all print and machine readable forms), all other rights of commercialization, rental or sale of the CDT or any part thereof, the right to make derivatives of the CDT and the right to distribute the CDT and copies thereof. End user acquires no proprietary interest in the CDT, or any portion thereof. Except for the limited rights expressly granted to End User herein this Agreement, all other rights in the CDT are owned and retained by ADA.
EXCEPT AS EXPRESSLY STATED HEREIN, THE CDT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. END USER BEARS ALL RISK RELATING TO QUALITY, ACCURACY AND PERFORMANCE OF THE CDT.
5. Limitation of Liability
IN NO EVENT WILL ADA BE LIABLE FOR ANY LOST PROFITS OR ANY DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR ANY OTHER TYPE OF DAMAGES, ARISING OUT OF THIS LICENSE AGREEMENT OR THE USE OF OR INABILITY TO USE THE CDT OR DOCUMENTATION, EVEN IF ADA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY TO ANY CLAIM OR CAUSE WHATSOEVER WHETHER SUCH CLAIM OR CAUSE IS IN CONTRACT, TORT OR OTHERWISE.
The End User agrees to indemnify ADA (including reasonable attorneys' fees and costs of litigation) against and hold ADA harmless from any and all claims, liability, losses, damages and expenses resulting from End User's use of the CDT, in breach of any of the terms of this Agreement, or End User's use of any data or documentation received from ADA, regardless of the form of action.
7. Third Party Beneficiary
The End User License for each Bundled Product shall expressly state that ADA is a direct and intended third party beneficiary of the End User License between Licensee and End User; provided, however, ADA’s rights as a third party beneficiary are limited solely to the End User’s use of the CDT outside the scope of the End User License.
(End of Appendix 1)
BUSINESS ASSOCIATE AGREEMENT
This Agreement is made effective the date that You (the Subscriber or User) begin use of any Dental Symphony Services. You or your Subscribing Organization are hereinafter referred to as "Covered Entity", and WORTHWHILE, INC., a Texas corporation, is hereinafter referred to as "Business Associate.” You and WorthWhile, Inc. may individually be referred to as a "Party" and collectively as the "Parties.”
WHEREAS, Sections 261 through 264 of the federal Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, known as "the Administrative Simplification provisions," direct the Department of Health and Human Services to develop standards to protect the security, confidentiality and integrity of health information; and
WHEREAS, pursuant to the Administrative Simplification provisions, the Secretary of Health and Human Services has issued regulations modifying 45 CFR Parts 160 and 164 (the "HIPAA Security and Privacy Rule"); and
WHEREAS, Business Associate may have access to Protected Health Information (as defined below) in fulfilling its responsibilities under such arrangement;
Except as otherwise defined herein, any and all capitalized terms in this Section shall have the definitions set forth in the HIPAA Security and Privacy Rule. In the event of an inconsistency between the provisions of this Agreement and mandatory provisions of the HIPAA Security and Privacy Rule, as amended, the HIPAA Security and Privacy Rule shall control. Where provisions of this Agreement are different than those mandated in the HIPAA Security and Privacy Rule, but are nonetheless permitted by the HIPAA Security and Privacy Rule, the provisions of this Agreement shall control.
The term "Protected Health Information" means individually identifiable health information including, without limitation, all information, data, documentation, and materials, including without limitation, demographic, medical and financial information, that relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual. "Protected Health Information" includes without limitation "Electronic Protected Health Information" as defined below.
The term "Electronic Protected Health Information" means Protected Health Information which is transmitted by Electronic Media (as defined in the HIPAA Security and Privacy Rule) or maintained in Electronic Media.
Business Associate acknowledges and agrees that all Protected Health Information that is created or received by Covered Entity and disclosed or made available in any form, including paper record, oral communication, audio recording, and electronic display by Covered Entity or its operating units to Business Associate or is created or received by Business Associate on Covered Entity’s behalf shall be subject to this Agreement.
II. CONFIDENTIALITY AND SECURITY REQUIREMENTS
(a) Business Associate agrees:
(ii) at termination of this Agreement, the Arrangement Agreement (or any similar documentation of the business relationship of the Parties), or upon request of Covered Entity, whichever occurs first, if feasible, Business Associate will return or destroy all Protected Health Information received from or created or received by Business Associate on behalf of Covered Entity that Business Associate still maintains in any form and retain no copies of such information, or if such return or destruction is not feasible, Business Associate will extend the protections of this Agreement to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information not feasible; and
(iii) to ensure that its agents, including a subcontractor, to whom it provides Protected Health Information received from or created by Business Associate on behalf of Covered Entity, agrees to the same restrictions and conditions that apply to Business Associate with respect to such information, and agrees to implement reasonable and appropriate safeguards to protect any of such information which is Electronic Protected Health Information. In addition, Business Associate agrees to take reasonable steps to ensure that its employees’ actions or omissions do not cause Business Associate to breach the terms of this Agreement.
(b) Notwithstanding the prohibitions set forth in this Agreement, Business Associate may use and disclose Protected Health Information as follows:
(i) if necessary, for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided that as to any such disclosure, the following requirements are met:
(A) the disclosure is required by law; or
(B) 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 the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached;
(ii) for data aggregation services, if to be provided by Business Associate for the health care operations of Covered Entity pursuant to any agreements between the Parties evidencing their business relationship. For purposes of this Agreement, data aggregation services means the combining of Protected Health Information by Business Associate with the protected health information received by Business Associate in its capacity as a business associate of another covered entity, to permit data analyses that relate to the health care operations of the respective covered entities.
Business Associate will implement appropriate safeguards to prevent use or disclosure of Protected Health Information other than as permitted in this Agreement. Business Associate will implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of any Electronic Protected Health Information that it creates, receives, maintains, or transmits on behalf of Covered Entity as required by the HIPAA Security and Privacy Rule.
The Secretary of Health and Human Services shall have the right to audit Business Associate’s records and practices related to use and disclosure of Protected Health Information to ensure Covered Entity’s compliance with the terms of the HIPAA Security and Privacy Rule.
Business Associate shall report to Covered Entity any use or disclosure of Protected Health Information which is not in compliance with the terms of this Agreement of which it becomes aware. Business Associate shall report to Covered Entity any Security Incident of which it becomes aware. For purposes of this Agreement, "Security Incident" means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system. In addition, Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this Agreement.
III. AVAILABILITY OF PHI
Business Associate agrees to make available Protected Health Information to the extent and in the manner required by Section 164.524 of the HIPAA Security and Privacy Rule. Business Associate agrees to make Protected Health Information available for amendment and incorporate any amendments to Protected Health Information in accordance with the requirements of Section 164.526 of the HIPAA Security and Privacy Rule. In addition, Business Associate agrees to make Protected Health Information available for purposes of accounting of disclosures, as required by Section 164.528 of the HIPAA Security and Privacy Rule.
Notwithstanding anything in this Agreement to the contrary, Covered Entity shall have the right to terminate this Agreement and the Arrangement Agreement immediately if Covered Entity determines that Business Associate has violated any material term of this Agreement. If Covered Entity reasonably believes that Business Associate will violate a material term of this Agreement and, where practicable, Covered Entity gives written notice to Business Associate of such belief within a reasonable time after forming such belief, and Business Associate fails to provide adequate written assurances to Covered Entity that it will not breach the cited term of this Agreement within a reasonable period of time given the specific circumstances, but in any event, before the threatened breach is to occur, then Covered Entity shall have the right to terminate this Agreement and the Arrangement Agreement immediately.
Except as expressly stated herein or the HIPAA Security and Privacy Rule, the parties to this Agreement do not intend to create any rights in any third parties. The obligations of Business Associate under this Section shall survive the expiration, termination, or cancellation of this Agreement, the Arrangement Agreement and/or the business relationship of the parties, and shall continue to bind Business Associate, its agents, employees, contractors, successors, and assigns as set forth herein.
This Agreement may be amended or modified only in a writing accepted electronically by Covered Entity similar in function and appearance to Covered Entity’s acceptance of this Agreement or in a writing signed by both Parties. No Party may assign its respective rights and obligations under this Agreement without the prior written consent of the other Party. None of the provisions of this Agreement are intended to create, nor will they be deemed to create any relationship between the Parties other than that of independent parties contracting with each other solely for the purposes of effecting the provisions of this Agreement and any other agreements between the Parties evidencing their business relationship. This Agreement will be governed by the laws of the State of Texas. No change, waiver or discharge of any liability or obligation hereunder on any one or more occasions shall be deemed a waiver of performance of any continuing or other obligation, or shall prohibit enforcement of any obligation, on any other occasion.
The parties agree that, in the event that any documentation of the arrangement pursuant to which Business Associate provides services to Covered Entity contains provisions relating to the use or disclosure of Protected Health Information which are more restrictive than the provisions of this Agreement, the provisions of the more restrictive documentation will control. The provisions of this Agreement are intended to establish the minimum requirements regarding Business Associate’s use and disclosure of Protected Health Information.
In the event that any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the provisions of this Agreement will remain in full force and effect. In addition, in the event a party believes in good faith that any provision of this Agreement fails to comply with the then-current requirements of the HIPAA Security and Privacy Rule, such party shall notify the other party in writing, For a period of up to thirty days, the parties shall address in good faith such concern and amend the terms of this Agreement, if necessary to bring it into compliance. If, after such thirty-day period, the Agreement fails to comply with the HIPAA Security and Privacy Rule, then either party has the right to terminate upon written notice to the other party.
(End of Appendix 2)