MOUTHWATCH LLC PILOT AGREEMENT
THIS AGREEMENT GOVERNS YOUR USE OF THE MOUTHWATCH LLC (“MOUTHWATCH”) APPLICATIONS, SITE AND SERVICES ON A TERM LIMITED, BETA-TEST, AS-IS, NO WARRANTY, NO FEE, PILOT TEST BASIS. BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS “YOU” OR “CUSTOMER ADMIN” IN THIS AGREEMENT. “PARTY” OR “PARTIES” SHALL MEAN, INDIVIDUALLY, CUSTOMER ADMIN OR MOUTHWATCH AS THE CONTEXT REQUIRES AND, COLLECTIVELY, CUSTOMER ADMIN AND MOUTHWATCH. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND “CUSTOMER ADMIN” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PILOT SERVICES.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
“Customer Admin Data” means any data, information or other materials submitted by Customer Admin to the Pilot Services.
“Customer Admin Trademarks” means any trademarks that Customer Admin provides MouthWatch for the purpose of referring to Customer Admin within the Authorized User interface for the Pilot Services.
“Effective Date” means the date Customer Admin executes this Agreement. The “effective date” of an Order Form shall be the date Customer Admin executes such Order Form.
“Authorized Users” means (1) the Customer Admin or the partners, members, employees, temporary employees, and independent contractors of the Customer Admin who have been added to the account as users by the Customer Admin; and (2) dentists, dental technicians, and dental patients.
“Order Form” means the documents setting out the pilot specifications from MouthWatch that are executed hereunder by Customer Admin and Mouthwatch. All Order Forms shall be deemed incorporated herein.
“Pilot Subscription Term” means the 12 month period beginning April 1, 2021 that Customer Admin may use and access the Pilot Services beginning on the Effective Date. The Pilot Services MAY automatically deactivate and become non-operational at the end of the Pilot Subscription Term, and Customer Admin shall not be entitled to access the Pilot Services.
“Teledentistry Services”. Pilot Services are designed to facilitate Customer Admin’s delivery of Teledentistry Services. Teledentistry Services include, without limitation, the delivery of dental care by Customer Admin to a patient physically located at another site through the use of telecommunications technology that allows providers to remotely see and hear the patient in real time.
“User-Generated Content” means: (1) content featured, displayed, communicated or transmitted through the Pilot Services, including, without limitation, text, data, charts, images, photographs, graphics, software, applications, designs, features and other materials that is created or uploaded by Customer Admin or Authorized Users; and/or (2) any or all of the following: (A) dental patient biographical and treatment information; (B) dental x-rays, dental images and photographs, dental video, intraoral imagery and videos, charts, and related materials; and (C) other assorted dental patient materials, data, and information.
2. Pilot Services.
2.1 Availability. MouthWatch shall make the Pilot Services available to Customer Admin and its Authorized Users pursuant to this Agreement and the applicable Order Form during the Pilot Subscription Term. Customer Admin agrees that its entering into this Agreement is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by MouthWatch regarding future functionality or features. Customer Admin shall be responsible for any and all Authorized Users’ compliance with this Agreement. AFTER THE CONCLUSION OF THE PILOT SUBSCRIPTION TERM: (i) CUSTOMER ADMIN WILL NOT HAVE ANY FURTHER RIGHT TO USE THE PILOT SERVICES, AND CUSTOMER ADMIN’S USE OF THE GENERALLY COMMERCIALLY AVAILABLE VERSION OR ANY VERSION OF ANY OF THE PILOT SERVICES WILL BE SUBJECT TO SEPARATE TERMS AND CONDITIONS; and (ii) MOUTHWATCH RESERVES THE RIGHT TO TERMINATE THIS AGREEMENT AT SUCH TIME IN ITS SOLE DISCRETION.
2.3 Prohibitions. Customer shall not: (i) except as permitted by this Agreement, directly or indirectly: sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Pilot Services available to any third party other than Users; (ii) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security, integrity, or performance of any part of the Pilot Services for any purpose including without limitation discovering individual Customer Admin Data or re-identifying anonymous data; (iii) access or use the Pilot Services in order to build a similar or competitive product or service; (iv) copy any features, functions or graphics of the Pilot Services for any purpose other than what is expressly authorized under this Agreement; (v) interfere with or disrupt the integrity or performance of the Pilot Services; (vi) use any e-mail addresses and other contact information provided on Pilot Services for marketing or advertising purposes; or (vii) send, store, access, post, transmit, link to, or otherwise distribute any spam, unlawful, infringing, obscene or libelous materials, or any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. Except as expressly stated herein, no part of the Pilot Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means. Customer shall make reasonable efforts to prevent unauthorized third parties from accessing the Pilot Services and notify MouthWatch promptly of any such unauthorized access or use.
2.4 Customer Responsibilities. Customer Admin shall be solely responsible for: (i) the accuracy and legality of Customer Admin Data, the means by which it acquires and uses such Customer Admin Data (including, without limitation, privacy and data protection), and has obtained all rights in the Customer Admin Data necessary to permit MouthWatch’s compliance with its obligations under this Agreement; (ii) complying with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Pilot Services, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which MouthWatch controls and operates the Pilot Services; and (iii) any acquisition, implementation, support, or maintenance of third-party products or services purchased by Customer Admin that may interoperate with the Pilot Services. Customer Admin is responsible for understanding and complying with all state and federal laws related to retention of medical records, patient access to information, and patient authorization to release data. Customer Admin agrees that it will obtain any necessary patient consent prior to using the Pilot Services and will exclude information from availability in the Pilot Services as necessary to comply with state or federal law.
2.5 User-Generated Content. Customer Admin may create, post, upload, link to, display, communicate or transmit User-Generated Content while or through using the Pilot Services. Customer Admin: (i) is solely responsible for the content of, and for any harm resulting from, any User-Generated Content, regardless of the form of such User-Generated Content; (ii) will only submit User-Generated Content for which it has sufficient rights to post; and (iii) will comply fully with any third-party licenses relating to User-Generated Content. MouthWatch is not responsible for any public display or misuse of User-Generated Content by Customer Admin or Authorized Users. Further, MouthWatch does not pre-screen User-Generated Content, but it has the right (though not the obligation) to refuse or remove any User-Generated Content that, in its sole discretion, violates any MouthWatch terms and policies.
2.6 Performance of Teledentistry Services. Customer Admin is, and will remain, solely responsible for: (i) the provision of Teledentistry Services and all other professional dental services and aspects relating to Customer Admin’s practice of dentistry (for the avoidance of doubt, Teledentistry Services shall be performed by Customer Admin for appropriate visits as determined in Customer’s, or its provider’s, as applicable, sole professional judgment); (ii) documenting the Telehealth Medical Services in Customer Admin’s clinical records; (iii) billing and collecting for Teledentistry Services; (iv) providing notice to and/or obtaining consent from any third-parties relating to the provision of Teledentistry Services through Pilot Services; (v) ensuring Pilot Services are used in accordance with applicable instructions, training materials and other online material that may be made available by MouthWatch from time to time; (vi) obtaining and maintaining both the functionality and security of all information technology software solutions and related services necessary to connect to, access or otherwise use Pilot Services; and (vii) complying with applicable laws, rules, regulations and standards imposed by government health care programs and other payors, licensing agencies and applicable accreditation bodies, including, without limitation, with respect to the provision of Teledentistry Services.
3. THIRD-PARTY PROVIDERS AS AUTHORIZED USERS. Customer Admin may authorize Authorized Users to use the Pilot Services, who are third parties and services providers, such as third party dentists and/or dental insurers. Any such third party Authorized User’s use of the Pilot Services and provision of services to Customer Admin related thereto including but not limited to any terms, conditions, warranties or representations associated with such services and any exchange of data between Customer Admin and such third party Authorized User is solely between Customer Admin and the applicable third party Authorized User. MouthWatch shall have no liability or obligation for, and does not endorse or accept any responsibility for any such third party Authorized User, the contents or use of third-party websites or any transactions completed with any Authorized Users or any third parties. Customer Admin is responsible for all acts and omissions of any Authorized User or any third-party Authorized User.
4.1 Ownership. As between the Parties, MouthWatch shall own and retain all right, title and interest in and to the Pilot Services, Professional Services, and MouthWatch Confidential Information (defined below), including all intellectual property rights. Customer Admin may not duplicate, copy, or reuse any portion of the Pilot Services, or visual design elements or concepts without prior written permission from Mouthwatch. No rights are granted to Customer Admin hereunder other than as expressly set forth herein. As between the Parties, Customer Admin shall own all right, title and interest in and to any Customer Admin Data, Customer Admin Confidential Information, and User-Generated Content. Customer Admin grants to MouthWatch (strictly for purposes of providing the Platform functionality or services for Customer and not for Company promotional purposes) the free, non-exclusive, worldwide right to use, host, store, reproduce, modify, adapt, transmit, communicate, publish, publicly perform, publicly display, distribute, and create derivative works (including but not limited to those resulting from translations, adaptations or other changes MouthWatch makes so that Customer Admin’s content works better with the Pilot Services) of the Customer Admin Data, Customer Admin Confidential Information, and User-Generated Content for the purposes of operating, providing, supporting, Pilot Services, including developing additional functionality or services for Customer. Subject to the confidentiality obligations of this Agreement, Customer Admin agrees that MouthWatch may use Customer Admin Data related to the usage of the Platform that does not contain patient data to compile, and use and disclose anonymous, aggregated statistics (“Usage Data”),. . For the sake of clarity, Usage Data includes only the number of appointments scheduled by providers, duration of visits, and metrics related to the performance of the platform (e.g., time-out rate, bounce rate, connection speed, etc.).
4.2 License to Mouthwatch. MouthWatch shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Pilot Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer Admin, including Authorized Users, relating to the operation of the Pilot Services.
4.3 Data Aggregation. MouthWatch and its affiliates may internally use, during this agreement, all aggregate, anonymized information and de-identified data for purposes of enhancing the Service and technical support, all in compliance with the HIPAA Privacy Standards, including without limitation the limited data set and de-identification of information regulations.
5. REPRESENTATIONS & WARRANTIES.
5.1 Authority. Each Party represents and warrants that: (i) it has the power and authority to enter into this Agreement; (ii) this Agreement and each Order Form is entered into by an employee or agent of such Party with all necessary authority to bind such Party to the terms and conditions of this Agreement; (iii) its execution of this Agreement does not violate any other agreement by which it is bound; and (iv) it is a legal entity in good standing in the jurisdiction of its formation.
5.2 NO WARRANTY. THE PILOT SERVICES MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, MOUTHWATCH IS PROVIDING PILOT SERVICES TO USER “AS IS.” MOUTHWATCH MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE PILOT SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANY PUBLISHED MATERIALS THAT STATE OTHERWISE, MOUTHWATCH DOES NOT WARRANT THAT THE PILOT SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
6. LIMITATIONS. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT DAMAGES, INCLUDING LOSS OF PROFITS, INCURRED BY THE OTHER PARTY AND ARISING OUT OF OR IN CONNECTION WITH A BREACH OF THIS AGREEMENT (THE FOREGOING BEING COLLECTIVELY CALLED “SPECIAL DAMAGES”). SUCH NON-LIABILITY FOR SPECIAL DAMAGES SHALL APPLY WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR ANY OTHER SUCH THEORY, EVEN IF THE BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH SPECIAL DAMAGES. NOTWITHSTANDING THE FOREGOING, BUSINESS INTERRUPTION LOSSES ARE NOT INCLUDED IN THE DEFINITION OF “SPECIAL DAMAGES” UNDER THIS SECTION 6 TO THE EXTENT THEY ARISE DIRECTLY FROM THE BREACHING PARTY’S BREACH OF THIS AGREEMENT. CUSTOMER ADMIN ACKNOWLEDGES THAT IF NO FEES ARE PAID TO MOUTHWATCH FOR THE PILOT SERVICES, CUSTOMER ADMIN SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM MOUTHWATCH, REGARDLESS OF THE CAUSE OF ACTION. IF CUSTOMER ADMIN IS A CALIFORNIA RESIDENT, CUSTOMER ADMIN WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS favor AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR”.
7. INDEMNIFICATION. Customer Admin shall defend, indemnify and hold MouthWatch harmless against any Claims made or brought against MouthWatch by anyone other than a MouthWatch Related Party against MouthWatch and its Related Parties where the third party expressly asserts (i) misappropriation, misuse or breach of applicable law related to Customer Admin Data; (ii) that the Customer Admin Data or Mouthwatch’s transmission or hosting thereof infringes or violates the rights of such third party; (iii) that Customer Admin’s breach of Section 2 of this Agreement violates the rights of such third party; (iv) that Customer Admin failed to comply with applicable laws, rules or regulations in its performance of this Agreement; or (v) Claims based on any third party equipment, devices, software, systems, or data Customer Admin combined, operated or used with the Pilot Services.
8. TERM AND TERMINATION.
8.1 Term. Unless otherwise provided in an Order Form, this Agreement shall commence on the Effective Date listed above and shall continue until expiration or termination of this Agreement or Order Forms executed hereunder. Notwithstanding anything to the contrary in this agreement, it is understood that this agreement shall, unless expressly renewed or extended in writing by Mouthwatch, terminate upon the expiration of the Pilot Subscription Term.
8.2 Termination. Either Party may terminate this Agreement (including all related Order Forms) (i) immediately upon written notice if the other Party seeks protection of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days; (ii) if either Party ceases operation without a successor; or (iii) as otherwise provided herein. MouthWatch may immediately terminate this Agreement if Customer Admin breaches any of the terms of this Agreement, including those relating to MouthWatch’s intellectual property (including Customer Admin’s non-compliance with the license grant or any license restrictions). Upon termination of this Agreement: (i) the Pilot Subscription Term for the Pilot Services shall immediately end; (ii) Customer Admin will no longer have the right to use the Pilot Services, and any licenses or access granted to Customer Admin relating to same shall automatically cease to exist as of the date of termination. Within thirty (30) days of termination of this Agreement, upon Customer Admin’s request, provided Customer Admin is not in breach of the Agreement, MouthWatch will make available to Customer Admin a file of the Customer Admin Data then in its possession.
8.3 Survival. The following provisions shall survive any termination of this Agreement: Sections 4, 5, 6, 7, 9, and 10.
9. CONFIDENTIAL INFORMATION. Each Party may have access to information that is confidential to the other Party. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is clearly identified as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential, including but not limited to the terms and conditions of this Agreement (including pricing and other terms reflected in an Order Form hereunder), the Customer Admin Data, the Pilot Services, business and marketing plans, technology and technical information, product designs, trade secrets and business processes. A Party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party without use of or reference to the other Party’s Confidential Information. The Parties agree to use all reasonable care to prevent disclosure of the other Party’s Confidential Information to any third party. Notwithstanding the foregoing, Customer Admin acknowledges and agrees that MouthWatch may disclose Customer Admin’s Confidential Information to its employees, consultants, Authorized Users and other third-party providers solely to the extent necessary to provide the Pilot Services under this Agreement, provided that MouthWatch has a non-disclosure agreement in place with such third-party provider that protects such Confidential Information against disclosure in a manner no less protective than this Agreement. This Section 13 constitutes the entire understanding of the Parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information. Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information for three (3) years and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s election, and subject to applicable law or regulation) all materials containing such Confidential Information.
10.1 This Agreement and the Terms, together with any applicable Exhibits and Order Forms represent the Parties’ entire understanding relating to the use of the Pilot Services and supersedes any prior or contemporaneous, conflicting or additional, communications. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of the Parties hereto. Notwithstanding any language to the contrary therein, any purchase order, Order Form, or any other document that contains terms that are different from or in addition to the terms of this Agreement shall be void and of no effect to the extent of such different or additional terms.
10.2 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
10.3 No joint venture, partnership, employment, or agency relationship exists between the parties.
10.4 Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms hereunder) to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other Party. Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
10.5 Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) during any period in which such performance is delayed or rendered impracticable or impossible due to circumstances beyond such Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, pandemics, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such Party’s employees), internet or other Pilot Services disruptions involving hardware, software or power systems not within such Party’s possession or reasonable control, and denial of services attacks.
10.6 The failure of either Party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any rights not expressly granted herein are reserved.
11. GOVERNING LAW AND ARBITRATION
11.1 Governing Law. This agreement and any action related thereto is governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of New York (without regard to conflicts of law principles).
11.2 General Arbitration Process. Any dispute or claim that may arise between the parties relating in any way to or arising out of this agreement, Customer’s use of or access to the Pilot Services (Claim), must be resolved exclusively through final and binding arbitration (rather than in court) under the then current commercial rules of the American Arbitration Association. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Nothing in this agreement prevents either party from seeking injunctive or equitable relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party. The arbitration will be held in New York County, New York.
11.3 Enforcement. Notwithstanding Sections 11.1 and 11.2, MouthWatch may bring an action to enforce its intellectual property or other proprietary rights in any court of competent jurisdiction. Notwithstanding anything above, MouthWatch may seek and obtain injunctive and equitable relief in any court of competent jurisdiction without restriction or required process in this agreement.