END-USER SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ORDERING, ACCESSING OR USING THE SOFTWARE AND TRAINING REFERRED TO AS “DENTALFORMS”.
IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND TECHKNOWLEDGEY INC. READ IT CAREFULLY BEFORE ACCESSING THIS WEB SITE AND USING THE “DENTALFORMS” SOFTWARE AND TRAINING. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY SELECTING TO USE THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OR IF YOU DO NOT HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT, THEN DO NOT USE THE “DENTALFORMS” SOFTWARE AND TRAINING.
THESE TERMS ARE SUBJECT TO CHANGE FROM TIME TO TIME, AND YOU WILL BE INFORMED WHEN ANY CHANGES TAKE EFFECT SO THAT YOU CAN CONFIRM YOUR ACCEPTANCE WITH THE REVISED TERMS IF YOU WISH TO CONTINUE USING THE SOFTWARE.
A. “LICENSOR” means Techknowledgey, Inc., a corporation, with an address of 1840 W Lincoln Ave, Goshen, IN 46526.
B. “LICENSEE” means you, either an individual or, if purchased or otherwise acquired by or for an entity, that entity. In the case of an entity, you acknowledge that you have authority to sign agreements (including this one) on behalf of the entity.
C. “Designated Equipment” shall mean the host server(s) of LICENSOR where the software application and end user data is hosted.
D. “Documentation” shall mean all manuals, user documentation, online help, training videos, and other related materials pertaining to the Software that are furnished to LICENSEE by LICENSOR in connection with the Software.
E. “Software” shall mean the “DENTALFORMS” Service and any subsequent error corrections or updates supplied to LICENSEE by LICENSOR pursuant to this Agreement.
F. “License Fee” shall mean the ongoing monthly, annual or other recurring term fee indicated on the order form to continue the license.
G. “Setup Fee” shall mean the up front fee to install and configure the software that is indicated on the order form.
H. “AFFILIATE” means a third party that has been authorized to market the software as an affiliate according to the terms of the Affiliate Agreement between LICENSOR and AFFILIATE.
2. LICENSE GRANT
LICENSOR hereby grants to LICENSEE a non-exclusive right and license to use the Software on the Designated Equipment on a periodic basis (month-to-month or annually, based upon the selected renewal term), with the license automatically being renewed each period (monthly, annually, or otherwise as specified in the original order) upon payment to LICENSOR of the applicable licensing fee. In the case of an annual agreement that is charged in monthly installments, the licensing fee shall be billed monthly in advance on the same day of each month.
LICENSOR shall deliver to LICENSEE sufficient details (such as a user name, password, and access URL) that will allow LICENSEE to access the Software over an Internet connection and utilize its features.
A. Error Corrections and Updates. LICENSOR will provide LICENSEE with error corrections, bug fixes, patches or other updates to the Software licensed to the extent they become available during the time that LICENSEE has a valid license to use the Software.
B. Other Modifications. LICENSEE may request, from time to time, that LICENSOR incorporate certain features, enhancements or modifications into the Software. LICENSOR may, in its sole discretion, undertake to incorporate such changes and distribute the Software so modified to all or any of LICENSOR’s licensees.
C. Title to Modifications. All such error corrections, bug fixes, patches, updates or other modifications shall be the sole property of LICENSOR.
Except as specifically set forth herein, no Software or Documentation which is provided by LICENSOR pursuant to this Agreement in human or machine readable form, such as written, printed, or digital documents, shall be copied in whole or in part by LICENSEE without LICENSOR’s prior written agreement.
6. LICENSE FEES AND PAYMENT
A. License Fee. In consideration of the licenses granted herein, LICENSEE shall pay the License Fee and Setup Fee for the Software and Documentation as set forth herein to LICENSOR. All amounts payable hereunder by LICENSEE shall be payable in United States funds without deductions for taxes, assessments, fees, or charges of any kind.
B. Taxes and Other Charges. LICENSEE shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Software or Documentation hereunder.
7. PROTECTION AND AVAILABILITY OF SOFTWARE
A. Proprietary Notices. LICENSEE agrees to respect and not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the Software or output generated by the Software.
B. No Reverse Engineering. LICENSEE agrees not to modify, reverse engineer, disassemble, or decompile the Software, or any portion thereof.
C. Ownership of Software. LICENSEE further acknowledges that all copies of the Software in any form provided by LICENSOR or made by LICENSEE are the sole property of LICENSOR and/or its suppliers. LICENSEE shall secure and protect all Software and Documentation consistent with maintenance of LICENSOR’s proprietary rights therein. LICENSEE agrees not to change or delete any copyright or proprietary notices from the Software and Documentation.
D. Ownership of Data. LICENSEE shall remain the owner of LICENSEE’s data that is entered into the software, such as any company and patient details that are entered into the software by LICENSEE using the interface within the Software. LICENSEE shall be the owner of the patient charts that are generated from the Software, and shall have full responsibility for maintaining the downloaded charts according to the applicable governmental and other regulations that apply to patient charts and other patient information. Upon termination of this Agreement, LICENSEE must cease any and all use of the Software.
E. Storage of Patient Data / HIPAA Policy. LICENSOR has made every reasonable attempt to comply with the requirements of being a “Business Associate” as defined under the Health Insurance Portability and Accountability Act (HIPAA). This means that: (1) The Software is located on a dedicated server, and is not on a shared server infrastructure; (2) Patient data is stored in a secure data center; and (3) All patient data in transit and at rest will be encrypted.
F. Backups of Data. LICENSEE shall be solely responsible for the backup of LICENSEE’s patient charts that are downloaded from the Software. Each patient chart will be deleted from the Software upon the earlier of: (1) the chart being downloaded by LICENSEE; or (2) 72-hours passing after the patient has filled out the information. LICENSEE agrees and understands that due to the sensitivity of patient information, LICENSOR will only store a limited amount of patient information in the Software, which can include the most current version of the patient’s answers to certain medical history questions. LICENSOR shall perform routine backups of the data that is stored within the Software, but does not guarantee any particular availability of such data other than as stated regarding the general availability of the Software in the up-time guarantee in Section 7(H) herein.
G. Scheduled Maintenance. LICENSEE agrees and understands that the Software will need to be offline by LICENSOR for routine maintenance from time to time. LICENSOR shall give LICENSEE at least five business days notice when the Software will be unavailable due to scheduled maintenance. LICENSOR will make every reasonable effort to perform any scheduled maintenance on the weekends whenever possible.
H. Up-Time Guarantee. In the event that the Software becomes unavailable for anything other than pre-scheduled maintenance performed in accordance with Section 7(G) herein, LICENSEE shall be entitled to request one day of credit of the License Fee for each day of downtime. In order to receive a service credit due to such un-scheduled downtime, LICENSEE must request the service credit within thirty (30) days of the occurrence of the downtime. This provision does not apply to downtime that occurs due to failure on LICENSEE’s own network, such as its failure to connect to the Internet.
I. LICENSEE’s Network. LICENSEE agrees and understands that LICENSOR is not responsible for the performance or availability of LICENSEE’s own computer network.
A. Acknowledgement. LICENSEE hereby acknowledges and agrees that the Software and Documentation constitute and contain valuable proprietary products and trade secrets of LICENSOR and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, LICENSEE agrees to treat (and take precautions to ensure that its employees treat) the Software and Documentation as confidential in accordance with the confidentiality requirements and conditions set forth below.
B. Maintenance of Confidential Information. In addition to the HIPAA requirements described in Section 7(E) herein, each party agrees to keep confidential all confidential information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information as can be established to: (1) have been known publicly; (2) have been known generally in the industry before communication by the disclosing party to the recipient; (3) have become known publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (4) have been known otherwise by the recipient before communication by the disclosing party; or (5) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.
C. Injunctive Relief. LICENSEE acknowledges that the unauthorized use, transfer or disclosure of the Software and Documentation or copies thereof will: (1) substantially diminish the value to LICENSOR of the trade secrets and other proprietary interests that are the subject of this Agreement; (2) render LICENSOR’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (3) cause irreparable injury in a short period of time. If LICENSEE breaches any of its obligations with respect to the use or confidentiality of the Software or Documentation, LICENSOR shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
D. Survival. LICENSEE’s obligations under this Section will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.
9. WARRANTIES; SUPERIOR RIGHTS
A. Ownership. Except for any rights as set forth herein, LICENSOR represents its belief that it is the owner of the entire right, title, and interest in and to Software, and that it has the sole right to grant licenses thereunder, and that it has not knowingly granted licenses thereunder to any other entity that would restrict rights granted hereunder except as stated herein.
B. Limited Warranty. LICENSOR represents and warrants to LICENSEE that the Software, when properly used by LICENSEE, will perform substantially as described in LICENSOR’s then current Documentation for such Software during the period that LICENSEE has a valid license to use the Software (because all required licensing fees have been paid).
C. Limitations. Notwithstanding the warranty provisions set forth herein, all of LICENSOR’s obligations with respect to such warranties shall be contingent on LICENSEE’s use of the Software in accordance with this Agreement and in accordance with LICENSOR’s instructions as provided by LICENSOR in the Documentation, as such instructions may be amended, supplemented, or modified by LICENSOR from time to time. LICENSOR shall have no warranty obligations with respect to any failures of the Software that are the result of accident, abuse, misapplication, extreme power surge or extreme electromagnetic field.
D. LICENSEE’s Sole Remedy. Except as otherwise set forth herein, LICENSOR’s entire liability and LICENSEE’s exclusive remedy shall be, at LICENSOR’s option, either: (1) return of the license fee paid for one month of service; or (2) repair or replacement of the Software, provided LICENSOR receives written notice from LICENSEE during the warranty period of a breach of warranty. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
E. Disclaimer of Warranties. LICENSOR DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY LICENSOR. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE AND DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF LICENSOR HAS BEEN INFORMED OF SUCH PURPOSE. NO AFFILIATE OR AGENT OF LICENSOR IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF LICENSOR AS SET FORTH HEREIN.
F. Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH LICENSOR IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY LICENSOR OF THE RISK OF LICENSEE’S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE’S USE OF THE SOFTWARE, DOCUMENTATION, AND ANY OUTPUT PRODUCED BY THE SOFTWARE. ACCORDINGLY, LICENSEE AGREES THAT LICENSOR SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE, DOCUMENTATION, OR OUTPUT PRODUCED BY THE SOFTWARE. Any provision herein to the contrary notwithstanding, the maximum liability of LICENSOR to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any Software delivered to LICENSEE hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to LICENSOR by LICENSEE for the previous twelve (12) months for usage of the Software. The essential purpose of this provision is to limit the potential liability of LICENSOR arising out of this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of consideration levied in connection with the license of the Software and Documentation and any services rendered hereunder and that, were LICENSOR to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
G. Not Professional Advice. LICENSEE ACKNOWLEDGES AND AGREES that the Software, Documentation, and any output produced by the Software do not constitute legal, financial, or medical advice by LICENSOR, and LICENSEE should consult with an attorney, financial advisor, or medical professional for advice regarding LICENSEE’s specific situation. LICENSEE agrees to use the information and output produced by the Software at LICENSEE’s own risk.
H. Affiliate Reliances. LICENSEE acknowledges and agrees that AFFILIATE, when applicable, does not have any authority to change the terms of this End User License Agreement. LICENSEE acknowledges and agrees that LICENSEE has not relied on any representation from an AFFILIATE that contradicts the terms stated in this End User License Agreement, and LICENSEE further agrees that the terms of this End User License Agreement shall govern any disputes regarding LICENSEE’s use of the Software.
I. Third Party Limitations. LICENSOR makes no representations whatsoever about any other web site that LICENSEE may access through the Software or that is referenced by the Software or Documentation. When LICENSEE accesses a third party web site, LICENSEE acknowledges that it is independent from LICENSOR, and that LICENSOR has no control over the content on that web site. In addition, a link to LICENSOR’s web site(s) does not mean that LICENSOR endorses or accept any responsibility for the content, or the use, of such web site.
A. Subject to following the termination procedure set forth herein, either party may terminate this Agreement for any reason upon providing written notice to the other party at least thirty (30) days before the next scheduled license renewal date (which would be 30 days before the annual renewal anniversary in the case of an annual agreement). For LICENSEE to cancel the subscription to the Software, LICENSEE must send an email within the deadline set forth above to email@example.com, and include the following information in the email: (1) the Practice Name; (2) the Practice Address; and (3) the Contact Info. LICENSOR will then follow-up with LICENSEE to confirm the cancellation and to determine certain wrap-up details. No refunds will be given, even if LICENSEE stops using the Software early or otherwise before the Agreement has terminated.
B. LICENSOR has the right to terminate this agreement immediately without written notice in the event of a breach of this Agreement by LICENSEE, such as if LICENSEE has not paid the required License Fee when due.
11. POST TERMINATION RIGHTS
A. Upon the expiration or termination of this Agreement, all rights granted to LICENSEE under this Agreement shall forthwith terminate and immediately revert to LICENSOR and LICENSEE shall discontinue all use of the Software and Documentation.
A. LICENSEE agrees to defend, indemnify and hold LICENSOR, its officers, directors, agents, employees, related companies, and affiliates harmless against any and all costs, expenses and losses (including reasonable attorneys’ fees and costs) arising from LICENSEE’s breach of this Agreement, and from LICENSEE’s use of the output (such as patient charts) generated by the Software, as well as from LICENSEE’s use of the information described in the Software. LICENSEE’s obligations under this Article will survive the expiration or termination of this Agreement.
13. Force Majeure
Neither party shall be liable for any loss or delay resulting from any force majeure event, including acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, or inability of carriers to make scheduled deliveries, and any payment or delivery date shall be extended to the extent of any delay resulting from any force majeure event.
A. Unless otherwise specified, any notice required to be given pursuant to this Agreement shall be in writing and mailed by certified or registered mail, return receipt requested or delivered by a national overnight express service.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other party pursuant to the provisions of this paragraph.
15. JURISDICTION AND DISPUTES
A. This Agreement shall be governed by the laws of Indiana.
B. All disputes hereunder shall be resolved in the applicable state or federal courts of Indiana. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
16. AGREEMENT BINDING ON SUCCESSORS
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and assigns.
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.
Since the Software is used for generating patient charts, the license granted hereunder is personal to LICENSEE and may not be assigned by any act of LICENSEE or by operation of law unless consent is received from LICENSOR. LICENSOR shall have the right to assign any and all interests and obligations of this Agreement to any successors of interest, transfers, or assigns.
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may be in conflict therewith.
A. No affiliate or agent of LICENSOR is authorized to make any amendment to this EULA.
B. All questions regarding this agreement should be directed to Techknowledgey, Inc. by mail at 1840 W Lincoln Ave Goshen, Indiana 46526, or by email at: firstname.lastname@example.org.