MOUTHWATCH LLC MASTER SUBSCRIPTION AGREEMENT
THIS AGREEMENT GOVERNS YOUR USE OF THE MOUTHWATCH LLC (“MOUTHWATCH”) APPLICATIONS, SITE AND SERVICES. 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 MOUTHWATCH SERVICES.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Admin Data” means any data, information or other materials submitted by Customer Admin to the MouthWatch 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 MouthWatch 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.
“Fees” means the fees Customer Admin is required to pay MouthWatch (i) for use of the MouthWatch Services during a Subscription Term or (ii) to receive any Professional Services, as such fees are reflected on an Order Form of SOW.
“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 ordering documents for Customer Admin purchases from MouthWatch that are executed hereunder by Customer Admin and MouthWatch from time to time. All Order Forms shall be deemed incorporated herein.
“Professional Services” includes but is not limited to training, consulting, onboarding or implementation services (not including support) that MouthWatch provides to Customer Admin pursuant to a mutually executed SOW or Order Form.
“Subscription Term” means the period of time that Customer Admin may use and access the MouthWatch Services beginning on the Effective Date and as set forth in the applicable Order Form. The MouthWatch Services MAY automatically deactivate and become non-operational at the end of the Subscription Term, and Customer Admin shall not be entitled to access the MouthWatch Services unless the Subscription Term is renewed.
“SOW” means a mutually executed statement of work detailing the Professional Services that MouthWatch will perform for Customer Admin, and any related Fees.
“Teledentistry Services”. MouthWatch 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 MouthWatch 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.
- MouthWatch Services.
2.1 Availability. MouthWatch shall make the MouthWatch Services available to Customer Admin and its Authorized Users pursuant to this Agreement and the applicable Order Form during each Subscription Term. Customer Admin agrees that its purchases hereunder are 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.
2.3 Customer 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 MouthWatch 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 MouthWatch Services for any purpose including without limitation discovering individual Customer Admin Data or re-identifying anonymous data; (iii) access or use the MouthWatch Services in order to build a similar or competitive product or service; (iv) copy any features, functions or graphics of the MouthWatch Services for any purpose other than what is expressly authorized under this Agreement; (v) interfere with or disrupt the integrity or performance of the MouthWatch Services; (vi) use any e-mail addresses and other contact information provided on MouthWatch 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 MouthWatch 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 MouthWatch Services, and notify MouthWatch promptly of any such unauthorized access or use.
2.4 Customer Responsibilities. Customer Admin shall be solely responsible for: (a) 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; (b) complying with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the MouthWatch 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 MouthWatch Services; and (c) any acquisition, implementation, support, or maintenance of third-party products or services purchased by Customer Admin that may interoperate with the MouthWatch 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 MouthWatch Services and will exclude information from availability in the MouthWatch 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 MouthWatch Services. Customer Admin: (a) 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; (b) will only submit User-Generated Content for which it has sufficient rights to post; and (c) 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 MouthWatch Services; (v) ensuring MouthWatch 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 MouthWatch 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.
2.7 Non-Solicit. Customer Admin acknowledges that MouthWatch invests considerable time and expense in the training of its employees and independent subcontractors in the services to be provided under this agreement. Customer Admin agrees that for the full term of this agreement, and for one (1) year after its termination Customer Admin will not solicit or employ in any capacity, whether as a direct employee, independent contractor, or representative of another company providing similar services to Customer as MouthWatch, any person employed by MouthWatch at any time during the term of this agreement whose duties involve providing the MouthWatch Services, whether for Customer Admin or other MouthWatch customers.
- PROFESSIONAL SERVICES. Upon Customer Admin’s request for Professional Services, MouthWatch will provide an SOW detailing such Professional Services. Each SOW is binding on both Parties upon execution by the Parties and any Professional Services will be governed by the terms of the applicable SOW and this Agreement. In the event of any conflict between the terms of this Agreement and any SOW, the terms of this Agreement will control. MouthWatch will control the manner and means by which the Professional Services are performed and reserves the right to determine which personnel are assigned to perform the Professional Services. MouthWatch may use third parties to perform the Professional Services, provided, however, that MouthWatch remains responsible for such third parties’ acts and omissions.
- THIRD-PARTY PROVIDERS AS AUTHORIZED USERS. Customer Admin may authorize Authorized Users to use the MouthWatch 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 MouthWatch 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.
5.1 Ownership. As between the Parties, MouthWatch shall own and retain all right, title and interest in and to the MouthWatch 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 MouthWatch 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 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 MouthWatch Services) of the Customer Admin Data, Customer Admin Confidential Information, and User-Generated Content without attribution for the purposes of operating, providing, supporting, improving, or developing the MouthWatch Services, including developing additional functionality or services. Subject to the confidentiality obligations of this Agreement, Customer Admin agrees that MouthWatch may use Customer Admin Data to compile, use and disclose anonymous, aggregated statistics, provided that no such information will directly identify and cannot reasonably be used to identify Customer Admin or Customer Admin’s Authorized Users. Customer Admin shall be solely responsible for ensuring that Customer Admin has obtained all necessary third-party consents and made all required disclosures in connection with the foregoing grant. Customer Admin acknowledges and agrees that Customer Admin Data may be transferred outside of the United States if Customer Admin’s Authorized Users access the Customer Admin Data while outside of the United States. In addition, Customer Admin shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and copyright of all Customer Admin Data.
5.2 Customer Admin Rights. Customer Admin retains all moral rights to Customer Admin Data, Customer Admin Confidential Information, and User-Generated Content, including the rights of integrity and attribution; however, Customer Admin waives these rights and agrees not to assert them against MouthWatch, solely to enable it to reasonably exercise the rights granted to it under this Agreement.
5.3 License to MouthWatch. MouthWatch shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the MouthWatch Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer Admin, including Authorized Users, relating to the operation of the MouthWatch Services.
5.4 Data Aggregation. MouthWatch may use protected health information to provide you with data aggregation services (as that term is defined by HIPAA) and to create de-identified data in accordance with 45 CFR 164.514(a)-(c). MouthWatch shall solely own all right, title and interest, in any de-identified data it creates from protected health information. MouthWatch and its affiliates may use and disclose, during and after this agreement, all aggregate, anonymized information and de-identified data for purposes of enhancing the Service, technical support and other business purposes, all in compliance with the HIPAA Privacy Standards, including without limitation the limited data set and de-identification of information regulations.
- BILLING AND PAYMENT.
6.1 General. Customer Admin agrees to pay for Fees in full, without deduction or setoff of any kind, in U.S. Dollars, unless otherwise specified in an Order Form or SOW. All Fees under this Agreement are nonrefundable except as otherwise set forth herein. MouthWatch’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer Admin shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed by MouthWatch. Except as otherwise provided in an Order Form or SOW, payment for invoices is due within thirty (30) days of Customer Admin’s receipt of the applicable invoice. If payment is not received by the due date, MouthWatch reserves the right to, in addition to taking any other action at law or equity, to (i) charge interest on past due amounts at one and a half percent (1.5%) per month or the highest interest rate allowed by law, whichever is less, and to charge all expenses of recovery (including reasonable attorneys’ fees), (ii) suspend Customer Admin’s access to the MouthWatch Services until overdue amounts are paid in full, including any interest assessed on the overdue amounts, and (iii) terminate the applicable Order Form or SOW.
6.2 Initial Subscription Term. Except as otherwise provided in the applicable Order Form or SOW, the Fees during the initial Subscription Term shall be: (i) based on the pricing matrix set forth in the Order Form (e.g., per Authorized User, per timeframe, etc.); and/or (ii) fixed during the initial Subscription Term; and (iii) charged or invoiced upon execution of such Order Form or SOW.
- SUPPORT. During the Subscription Term, MouthWatch shall provide assistance to Customer Admin by telephone, e-mail or online chat as set forth in the applicable Order Form. MouthWatch reserves the right, from time to time, to make modifications to support services (or particular components thereof), provided that such modifications do not materially reduce the support services in effect as of the Effective Date of this Agreement. MouthWatch agrees to use commercially reasonable efforts to notify Customer Admin of any material modifications to the support services by posting a notice on the MouthWatch Services. MouthWatch shall use reasonable commercial efforts to correct at no additional charge any reproducible errors reported by Customer Admin. MouthWatch shall review all requests for improvements and new functionality, but MouthWatch shall have no obligation to provide any modifications to the MouthWatch Services.
- LIMITED REPRESENTATIONS & WARRANTIES.
8.1 Authority. Each Party represents and warrants that: (a) it has the power and authority to enter into this Agreement; (b) this Agreement and each Order Form and SOW 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; (c) its execution of this Agreement does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
8.2 PRODUCT WARRANTY. MouthWatch warrants that (i) it will provide the MouthWatch Services in a manner consistent with generally accepted industry standards, MouthWatch Services and (ii) the configuration of the MouthWatch Services will conform in all material respects to this Agreement and/or the applicable Order Form. In the event of breach of (i)-(ii) above, Customer Admin’s sole and exclusive remedies are those described in the Section 12.3 titled “Termination Rights.” Notwithstanding the foregoing, MouthWatch is not obligated to correct errors caused by: (a) unauthorized modification to the MouthWatch Services, (b) Customer Admin modifications to the MouthWatch Services; (c) non-MouthWatch software, or (d) combining the MouthWatch Services with any other hardware or software not authorized by MouthWatch in writing.
8.3 BETA FEATURES. IF CUSTOMER ADMIN IS INVITED TO ACCESS ANY BETA FEATURES OF THE MOUTHWATCH SERVICES OR A CUSTOMER ADMIN ACCESSES ANY BETA FEATURES OF THE MOUTHWATCH SERVICES, CUSTOMER ACKNOWLEDGES THAT: (A) SUCH FEATURES HAVE NOT BEEN MADE COMMERCIALLY AVAILABLE BY MOUTHWATCH; (B) SUCH FEATURES MAY NOT OPERATE PROPERLY, BE IN FINAL FORM, OR BE FULLY FUNCTIONAL; (C) SUCH FEATURES MAY CONTAIN ERRORS, DESIGN FLAWS, OR OTHER PROBLEMS; (D) IT MAY NOT BE POSSIBLE TO MAKE SUCH FEATURES FULLY FUNCTIONAL; (E) USE OF SUCH FEATURES MAY RESULT IN UNEXPECTED RESULTS, CORRUPTION OR LOSS OF DATA, OR OTHER UNPREDICTABLE DAMAGE OR LOSS; (F) SUCH FEATURES MAY CHANGE AND MAY NOT BECOME GENERALLY AVAILABLE; AND (G) MOUTHWATCH IS NOT OBLIGATED IN ANY WAY TO CONTINUE TO PROVIDE OR MAINTAIN SUCH FEATURES FOR ANY PURPOSE IN PROVIDING THE ONGOING MOUTHWATCH SERVICES. THESE BETA FEATURES ARE PROVIDED AS IS, WITH ALL FAULTS. CUSTOMER ADMIN ASSUMES ALL RISK ARISING FROM USE OF SUCH FEATURES, INCLUDING, WITHOUT LIMITATION, THE RISK OF DAMAGE TO CUSTOMER ADMIN’S COMPUTER SYSTEM OR THE CORRUPTION OR LOSS OF DATA.
8.4 Not a Replacement for Medical Professionals. The MouthWatch Services do not provide medical or dental advice, provide medical or dental or diagnostic services, or prescribe medication. Use of the MouthWatch Services is not a substitute for the professional judgment of health care or dental providers in diagnosing and treating patients. Customer Admin agrees that it is solely responsible for verifying the accuracy of patient information (including, without limitation, obtaining all applicable patients’ medical or dental and medication history and allergies), obtaining patient’s consent to use the MouthWatch Services, and for all of its decisions or actions with respect to the medical or dental care, treatment, and well-being of its patients, including without limitation, all of Customer Admin’s acts or omissions. Any use or reliance by Customer Admin upon the MouthWatch Services will not diminish that responsibility. Customer Admin assumes all risks associated with Customer Admin’s clinical use of the MouthWatch Services for the treatment of dental patients. Neither MouthWatch nor its licensors assume any liability or responsibility for damage or injury (including death) to Customer Admin, a dental patient, other persons, or tangible property arising from any use of the MouthWatch Services.
- LIMITATIONS OF LIABILITY.
9.1 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 9.1 TO THE EXTENT THEY ARISE DIRECTLY FROM THE BREACHING PARTY’S BREACH OF THIS AGREEMENT.
9.2. IN NO EVENT SHALL MOUTHWATCH’S TOTAL CUMULATIVE LIABILITY,
FROM ALL CAUSES OF ACTION OF ANY KIND, EXCEED THE GREATER OF (A) THE AMOUNTS ACTUALLY PAID TO MOUTHWATCH BY CUSTOMER ADMIN IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM, OR, WHERE A CLAIM ARISES PRIOR TO THE EXPIRY OF SUCH TWELVE (12) MONTH PERIOD, THE PROJECTED AMOUNT TO BE PAID DURING THE FIRST TWENTY-FOUR MONTH PERIOD; OR (B) THE AMOUNT OF INSURANCE PROCEEDS PAID UNDER ANY POLICY MAINTAINED BY THE BREACHING PARTY (OR, IF THE BREACHING PARTY FAILS TO MAINTAIN A POLICY REQUIRED BY THIS AGREEMENT, THE AMOUNT OF THE REQUIRED PER-CLAIM LIMIT AS SET FORTH IN THIS AGREEMENT). IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE 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”.
- ALLOCATION OF RISK. The provisions of this Agreement fairly allocate the risks between MouthWatch, on the one hand, and Customer Admin, on the other. Customer Admin acknowledges and agrees that the pricing of MouthWatch Services reflects this allocation or risk and the limitation of liability specified herein, and that MouthWatch would not enter into this Agreement without such allocation and limitation.
11.1 Indemnification by MouthWatch. MouthWatch shall defend, indemnify and hold Customer Admin harmless against any claims, actions, suits, proceedings, and demands (each a “Claim”) made or brought against Customer Admin by anyone other than a Customer Admin Related Party (as defined below) against Customer Admin and its Related Parties where the third party expressly asserts that MouthWatch Services: (i) infringe such third party’s patent, trademark or copyright arising under the laws of the United States; (ii) MouthWatch misappropriated such third party’s trade secrets in the development of the MouthWatch Services arising under the laws of the United States; or (iii) arising out of MouthWatch’s breach of its confidentiality obligations relating to Customer Admin Data. “Related Party” means directors, officers, employees, Affiliates, successors, assigns of a party. In the event that MouthWatch believes the MouthWatch Services, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section 11.1 applies, then MouthWatch may, in its discretion and at its sole expense: (w) procure for Customer Admin the right to continue using the MouthWatch Services or any applicable part thereof under the terms of this Agreement; (x) replace or modify the MouthWatch Services, or any applicable part thereof, with a non-infringing version (or part thereof), (y) modify such MouthWatch Services, or applicable part thereof, so as to make it non-infringing; or (z) terminate this Agreement with respect to the infringing portion of the MouthWatch Services, and refund any prepaid, unused Fees for such portion of the MouthWatch Services for the remainder of the then-current Subscription Term after the date of termination. THIS SECTION 11.1 REPRESENTS MOUTHWATCH’S SOLE LIABILITY TO, AND CUSTOMER ADMIN’S EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS OF ANY KIND IN CONNECTION WITH THE MouthWatch Services DELIVERED UNDER OR IN CONNECTION WITH THIS AGREEMENT.
11.2 MouthWatch Indemnification Exclusions. MouthWatch shall not have any indemnification obligation for any Claim pursuant to this Agreement to the extent a Claim is based upon (i) modifications to the MouthWatch Services by anyone other than MouthWatch or its agents (provided that MouthWatch shall not be liable if MouthWatch or its agents made the modifications using requirements documents, written specifications or other written materials submitted by Customer Admin or its agents or representatives); (ii) the modification of the MouthWatch Services or the use, combination, or operation of the MouthWatch Services with equipment, devices, software, systems, or data, other than expressly authorized by this Agreement; (iii) use of the MouthWatch Services in violation of this Agreement; (iv) Customer Admin’s continued use of any version of the MouthWatch Services other than the then-current, unaltered version, if infringement would have been avoided by use of a current, unaltered version thereof that has been made available to Customer Admin; (v) where Customer Admin continues to use the MouthWatch Services after being notified of allegedly infringing activity or being informed of modifications that would have avoided the alleged infringement; (vi) third party software or services, Customer Admin software, Customer Admin Data, or User-Generated Content.
11.3 INDEMNIFICATION BY CUSTOMER ADMIN. 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 MouthWatch Services.
11.4 Indemnification Procedure. Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of a Claim, the party to be indemnified will notify the other party of the Claim in writing; provided however, that the indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by a failure to give notice. The indemnifying party will assume the sole control of defense and settlement of the claim at the indemnifying party’s expense; provided, however, the indemnified party: (i) may join in the defense and settlement of the Claim and employ counsel at its own expense; and (ii) will reasonably cooperate with the indemnifying party in the defense and settlement of the Claim. The indemnifying party may not settle any Claim without the indemnified party’s written consent unless the settlement: (x) includes a release of all covered Claims pending against the indemnified party; (y) contains no admission of liability or wrongdoing by the indemnified party; and (z) imposes no obligations upon the indemnified party other than an obligation to stop using any infringing items. If both the indemnified party and the indemnifying party are named parties in any action relating to the Claim and the counsel chosen by the indemnifying party cannot represent both the indemnified party and indemnifying party due to any present or potential conflict in representing the interests of both of them, then the indemnifying party will retain separate counsel for the indemnified party.
11.5 ENTIRE LIABILITY. THIS SECTION 11 STATES THE ENTIRE LIABILITY OF THE INDEMNIFYING PARTY AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM BY A THIRD PARTY DESCRIBED IN THIS SECTION.
- TERM AND TERMINATION.
12.1 Term of Agreement. 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.
12.2 Subscription Term. Except as specified otherwise in an Order Form, a standard Subscription Term is for a one (1) year Subscription Term commencing on the Effective Date. Customer Admin’s subscription to the MouthWatch Services will automatically renew for additional one (1) year periods unless either party notifies the other of its intent not to renew in writing at least fifteen (15) days prior to the expiration of the then-current Subscription Term. In the event that any Subscription Term expires before Customer Admin makes a payment for a renewal Subscription Term, MouthWatch reserves the right to charge: (a) a proportionate fee for the elapsed time period during which the Subscription Term was expired and (b) a reactivation fee to process the renewal.
12.3 Termination Rights. Either Party may terminate this Agreement (including all related Order Forms) (i) upon material breach of this Agreement if such breach has not been cured within thirty (30) days of written notice from the non-breaching Party specifying the breach in detail and, if MouthWatch is the non-breaching Party, MouthWatch may terminate Customer Admin’s password, account, access to and/or use of the MouthWatch Services; (ii) 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). If this Agreement is terminated by Customer Admin in accordance with subsection (i) of this Section 12.3, MouthWatch will refund Customer Admin any prepaid fees covering the remainder of the then-current Subscription Term of all Order Forms after the effective date of termination. In no event will termination relieve Customer Admin of its obligation to pay any fees payable to MouthWatch for the period prior to the effective date of termination. It is understood that
12.4 Effect of Termination. Upon termination of this Agreement: (i) the Subscription Term for the MouthWatch Services or Professional Services shall immediately end; (ii) Customer Admin will no longer have the right to use the MouthWatch Services or the Professional Services, and any licenses or access granted to Customer Admin relating to same shall automatically cease to exist as of the date of termination; and (iii) if any Fees were owed prior to termination, other than for termination by Customer Admin for MouthWatch’s uncured breach, Customer Admin must pay those Fees immediately. Within thirty (30) days of termination of this Agreement, upon Customer Admin’s request, provided Customer Admin is not in breach of the Agreement including but not limited to payment obligations, MouthWatch will make available to Customer Admin a file of the Customer Admin Data then in its possession. Customer Admin agrees and acknowledges that, thirty (30) days following the effective termination date of this Agreement or if Customer Admin’s account is thirty (30) days or more past due, MouthWatch will have no obligation to maintain or produce Customer Admin Data under this Agreement, and may, in MouthWatch’s sole discretion, delete or destroy all copies of Customer Admin Data in the MouthWatch Services or otherwise in MouthWatch’s possession or control, unless legally prohibited.
12.5 Survival. The following provisions shall survive any termination of this Agreement: Sections 1, 2.2, 2.3, 2.4, 2.5, 3, 5, 6, 8, 9, 10, 11, 12.4, 13, 14, and 15.
- CONFIDENTIAL INFORMATION.
13.1 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 MouthWatch 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 MouthWatch 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.
13.2 If Receiving Party receives a request to disclose any Confidential Information of Disclosing Party pursuant to a subpoena, order, civil or criminal investigative demand, agency administrative demand, law, rule, regulation, or a judicial or similar process issued by a court of competent jurisdiction, the Receiving Party’s regulators or any other administrative body (each such request, a “Disclosure Request”), the Receiving Party is permitted to disclose such Confidential Information only to the extent necessary to comply with the Disclosure Request or as otherwise required by law. If legally permitted, Receiving Party shall provide Disclosing Party with prompt prior notice of such Disclosure Request and reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to seek protection or confidential treatment of the Confidential Information relevant to the Disclosure Request. If the Receiving Party receives a Disclosure Request as part of a proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the Disclosure Request or is requesting the Disclosure Request, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost and fees incurred in compiling and providing secure access to the Confidential Information relevant to the Disclosure Request.
13.3 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of this Section 13, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies may be inadequate.
13.4 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.
14.1 Each Party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the MouthWatch Services.
14.2 Either Party may identify the other as an Authorized User or Customer Admin, as applicable, and may use the other’s name and logo in Customer Admin or vendor lists, press releases, blog posts, advertisements, and on their respective websites. Customer Admin further grants MouthWatch a non-exclusive license to use Customer Admin Trademarks for the purpose of referring to Customer Admin within the Authorized User interface for the MouthWatch Services.
14.3 Any action related to this Agreement will be governed exclusively by the internal laws of the state of New York, without regard for its conflicts of laws rules, and all disputes hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in New York County, New York. The Parties hereby irrevocably consent to the jurisdiction of such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act.
14.4 This Agreement and the Terms, together with any applicable Exhibits, Order Forms, and SOWs represent the Parties’ entire understanding relating to the use of the MouthWatch 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, SOW, 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.
14.5 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.
14.6 No joint venture, partnership, employment, or agency relationship exists between MouthWatch and Customer Admin as a result of this Agreement or use of the MouthWatch Services.
14.7 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.
14.8 In the ordinary course of its business, MouthWatch uses third-party service providers (collectively, “Vendors”) to support the provision of the MouthWatch Services or support generally (i.e., not specifically for Customer Admin). In addition, MouthWatch may provide the MouthWatch Services or support through one or more Affiliates. MouthWatch reserves the right to engage and substitute Vendors as it deems appropriate to provide the MouthWatch Services and support hereunder, but shall remain responsible for the acts or omissions of such Vendors undertaken in connection with this Agreement.
14.9 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 MouthWatch Services disruptions involving hardware, software or power systems not within such Party’s possession or reasonable control, and denial of MouthWatch Services attacks.
14.10 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.
- GOVERNING LAW AND ARBITRATION
15.1 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).
15.2 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 MouthWatch 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.
15.3 Optional Arbitration for Claims Less than $10,000. Notwithstanding the foregoing, for any Claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may choose to resolve the dispute in a more cost-effective manner through binding non-appearance-based arbitration. If a party elects arbitration, they must initiate such arbitration through an established alternative dispute resolution (ADR) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone or online and be solely based on written submissions, the specific manner of which to be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction.
15.4 Enforcement. Notwithstanding Sections 15.2 and 15.3, MouthWatch may bring an action to enforce its intellectual property or other proprietary rights in any court of competent jurisdiction.
15.5 Equitable Relief. 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.
15.6 PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS. EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL PARTY BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING. IF THIS CLASS ACTION AND REPRESENTATIVE ACTION WAIVER PROVISION IS HELD TO BE UNENFORCEABLE, THEN SECTIONS 15.2 AND 15.3 SHALL ALSO BE UNENFORCEABLE.