Dental Intelligence | Terms

Dental Intelligence
Terms of Service

LAST UPDATED: MAY 9 2020

These Customer Terms of Service (the “ Terms ”) are between Dental Intelligence, Inc. (“ Dental Intel ” or “ we ”) and the Customer identified in the accompanying Order (“ Customer ” or “ you ”). If Customer is a business or other legal entity, t he person accepting these Terms on behalf of Customer represents that he or she has the authority to bind such entity to these terms and conditions.

If you are a User using the Subscription Service under the Customer’s license, applicable portions of these Terms are also binding upon you individually, including without limitation the Acceptable Use Policy and other restrictions in Section 3 and the terms in Sections 8, 9 and 10. Where applicable, “ you ” also refers to Users.

PLEASE READ THESE TERMS CAREFULLY BEFORE ACCEPTING THEM BY SIGNING THE ACCOMPANYING ORDER. THESE TERMS GOVERN THE LICENSE AND USE OF THE SUBSCRIPTION SERVICE AND SOFTWARE OFFERED BY DENTAL INTEL AND PROVIDED TO CUSTOMER AND ITS USERS UNDER THE ORDER(S) EXECUTED BY CUSTOMER. BY SIGNING THE ORDER, YOU ARE INDICATING YOUR ACCEPTANCE OF THIS ENTIRE TERMS OF SERVICE CONTRACT, INCLUDING THE BUSINESS ASSOCIATE AGREEMENT ATTACHED AS EXHIBIT A. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT SIGN THE ORDER.

These Terms are effective between Customer and Dental Intel as of the date Customer signs the initial Order and that Order is accepted by Dental Intel (the “ Effective Date ”). The person accepting the Order and these Terms on behalf of Customer represents that he or she has the authority to bind such entity to these terms and conditions.

RECITALS:

  1. Dental Intel licenses certain software programs to customers (the “ Software ”) that are available to access through the cloud, via Dental Intel’s website (the “ Website ”) as a subscription service, together with other content and materials provided by Dental Intel on the Website or otherwise (the “ Subscription Service ”).

  2. Customer desires to access the Subscription Service, and Dental Intel desires to provide such access to Customer, subject to the terms and conditions of these Terms.

In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Dental Intel and you agree as follows:

AGREEMENTS:

In consideration of the mutual promises set out in these Terms, Dental Intel and Customer agree as follows:

  1. Definitions .

    1. Acceptable Use Policy ” means the acceptable use policy and terms set forth in Section 2(b).

    2. BAA ” means the Business Associate Agreement attached hereto as Exhibit A.

    3. Confidential Information ” means Dental Intel’s pricing, Customer Data, either party’s non-public business and technology information, the Software, trade secrets, any written materials marked as confidential and any other information which reasonably should be understood to be confidential. Confidential Information excludes information that the receiving party can document: (i) is or becomes generally available to the public without fault of the receiving party; (ii) was rightfully in the receiving party’s possession prior to its disclosure by the other party; (iii) is independently developed without the use of any Confidential Information of the disclosing party; or (iv) is obtained without obligation of confidentiality from a third party who has the right to disclose it. The receiving party also may disclose Confidential Information to the extent required under a judicial or legislative order or proceeding or as necessary to comply with open records acts or other freedom of information laws or regulations; provided that it gives the disclosing party, if legally permissible, reasonable prior notice and an opportunity to respond or object to the disclosure.

    4. " Customer Data " means all electronic data, content and information input by Customer and Users into the Subscription Service, including any Personal Information of individuals. Customer Data does not include any Feedback.

    5. De-identified Data ” has the meaning set forth in Section 5(a).

    6. Dental Intel Materials ” means the Subscription Service, Software, documentation, the Website and its contents (including all content generated by the Subscription Service, except for Personal Information provided by Customer and its Users), Dental Intel’s trademarks and service marks, custom developments, Modifications, training materials, and other written or electronic documents and materials produced by Dental Intel that relate to the Subscription Service, and all intellectual property rights in the foregoing.

    7. Feedback ” means any suggestions, enhancement requests, complaints or other feedback from Customer or Users relating to the Subscription Service, other Dental Intel Materials, or Dental Intel’s Services.

    8. Location(s) ” refers to specific offices of Customer that are licensed to use the Subscription Service, as listed in Customer’s Order(s).

    9. Modifications ” means updates, upgrades, patches, improvements, enhancements, bug fixes, additional features, and other modifications to the Subscription Service or other Dental Intel Materials.

    10. " Order(s) " means the Customer Order and Agreement between the parties, and/or any other mutually agreed electronic or written documents for placing orders in connection with these Terms. Orders may be for Customer’s and its Users’ initial access to the Subscription Service, for adding additional Locations to Customer’s license, or for any other products or Services of Dental Intel. Orders are subject to acceptance by Dental Intel. Orders are incorporated into these Terms by reference, except as provided in Section 17(a).

    11. Payment and Cancellation Policy ” means Dental Intel’s policies relating to its subscription plans, billing, cancellation, and refunds, as set forth at https://www.dentalintel.com/cancelpolicy.php .

    12. Privacy Policy ” means the Dental Intel Privacy Policy posted on the Website, which is incorporated into these Terms by reference. The Privacy Policy may be accessed at this link: https://www.dentalintel.com/privacy.php . The Privacy Policy may be modified and updated by Dental Intel from time to time, and the then-current Privacy Policy will apply from and after the time it is posted on the Website.

    13. Services ” means technical support, Software maintenance, and other services offered by Dental Intel to customers as part of or in connection with the Subscription Service, including consulting or other professional services for which Dental Intel may charge a separate fee.

    14. Software ” means the software program(s) that Dental Intel makes available to Customer as part of the Subscription Service. “Software” also includes any downloadable software provided by Dental Intel as part of the Subscription Service and any Modifications to the foregoing software. Software will be provided to Customer only through online access as part of the Subscription Service.

    15. Subscription Service ” means the subscription service specified in an Order, providing online access to hosted Software and any related products and Services offered by Dental Intel that are made available online to Customer, including any associated offline components. The Subscription Service will be hosted either on Dental Intel servers or the servers of a third party that in the business of hosting web- or cloud-based software applications. “Subscription Service” excludes any third party software and applications that are owned by entities or individuals other than Dental Intel and that may interoperate with the Subscription Service or Software, including but not limited to those listed or provided on the Website or together with the Subscription Service.

    16. Term ” means the Initial Term of these Terms together with any and all Renewal Terms, as those terms are defined in Section 7(a).

    17. Third Party Software ” means software owned by third parties and licensed to Dental Intel for customers to use in connection with the Subscription Service, including open source software.

    18. " Users " means employees, independent contractors, staff and other individual persons that Customer authorizes to use the Subscription Service, solely for Customer’s own internal business purposes.

    19. Website ” means the Dental Intel website where Customer and its Users access the Subscription Service, and/or other web pages designated by Dental Intel where resources and Services related to the Subscription Service are provided by Dental Intel (excluding third party websites).

  2. License . Dental Intel grants Customer a non-exclusive, non-transferable right and license, during the term of these Terms, to access and use the Subscription Service during the Term for each authorized Location. The Subscription Service is subject to the following license terms and limitations:

  1. Use of Subscription Service . Use of the Subscription Service and Software is limited to Customer’s own internal business purposes related to analyzing and growing its business, and only for the authorized Locations. Customer is granted the right to authorize Users to access and use the Subscription Service, for the sole benefit of Subscription’s business. Customer and Users are authorized to use the Software only as part of the Subscription Service, except as otherwise specifically set forth in these Terms or in the terms of use for a particular Software product.

  2. Acceptable Use Policy . Customer and its Users may not use the Subscription Service or other Dental Intel Materials in any of the following ways:

Violation of this Acceptable Use Policy may result in suspension or termination of the Subscription Service for the responsible User or Customer.

  1. Geographic Scope of License . Customer’s use of the Subscription Service is limited to the United States, and Customer and its Users will not input or allow to be added any Personal Data of non-U.S. residents into the Subscription Service, unless and until otherwise expressly agreed in writing by Dental Intel. Customer acknowledges that use of the Subscription Service for any business operations outside of the U.S. requires additional due diligence to ensure that that the parties are able to comply with data security, privacy, and other applicable laws and regulations.

  2. Modifications . Customer and Users may not modify the Subscription Service or other Dental Intel Materials in any way, other than adding, modifying and deleting its own Customer Data. Customer acknowledges and agrees that Dental Intel may make Modifications to the Subscription Service and other Dental Intel Materials from time to time, in Dental Intel’s sole discretion. Dental Intel reserves the right, in its sole discretion, to make unscheduled deployments of Modifications at any time and may add or remove functionalities or features, and may suspend the Subscription Service while updating it.

  3. Customer’s Obligations Relating to Data . Customer has the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of or right to use all Customer Data. Customer agrees that it is solely responsible for the nature, quality and accuracy of all Customer Data. Customer will promptly handle and resolve any notices and claims relating to the Customer Data, including any notices sent by any person claiming that any Customer Data violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices. Customer hereby grants Dental Intel and its contractors the right, to use, modify, adapt, reproduce, distribute, display and disclose Customer Data posted on the Subscription Service solely to the extent necessary to provide the Subscription Service and other Services or as otherwise permitted by these Terms.

  4. Users . Each User will be required to accept these Terms prior to accessing the Subscription Service. Customer is responsible for ensuring that its Users comply with these Terms. However, Dental Intel’s representations, warranties and commitments set forth in these Terms are made only to Customer, not to its Users.

  5. Open Source and Third Party Software . The parties acknowledge that the Software contains open source code and other Third Party Software components. Open source components are subject to the applicable third party license terms, which are available upon request. Other Third Party Software that is embedded in the Software, or provided by Dental Intel as an integrated part of the Subscription Service, is sublicensed by Dental Intel to Customer pursuant to these Terms, as applicable, unless Dental Intel provides a separate third party license(s) for such Third Party Software to Customer. Third Party Software is licensed only for use in connection with the Software, unless otherwise permitted under an open source license.

  1. Free Trials . If you are participating in any free offer or trial period, Dental Intel will make the Subscription Service available to you free of charge until the end of the free trial period for which you have registered. Y ou must cancel the Subscription Service before the end of the trial period to avoid incurring new charges. If you do not cancel your subscription and we have told you the Subscription Service will convert to a paid subscription at the end of the trial or free period, you authorize us to charge your payment method for the Subscription Service. Unless your free trial account is converted to a paid subscription, any Customer Data you input into the Subscription Service will be deleted at the end of the trial period. DU RING THE FREE TRIAL PERIOD THE SUBSCRIPTION SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND.

  2. Other Services .

  1. Technical Support and Maintenance . Dental Intel will provide Customer with reasonable telephone-based and web-based technical support and maintenance Services to assist Customer in utilizing the Subscription Service. Customer will also have email access to the Dental Intel technical support division via support@dentalintel.com . Dental Intel technicians will use reasonable, good faith efforts to resolve Customer’s problems. Dental Intel will respond to support telephone calls or e-mail contacts based on: (a) the order that such calls or e-mail are received; and (b) the relative importance of such calls or e-mail as reasonably determined by Dental Intel. Dental Intel may update its support and maintenance policies from time to time.

  2. Professional Services . Upon Customer’s request and subject to a separate written Order or statement of work (“ SOW ”) between the parties, Customer may purchase training, consulting services, or other professional Services from Dental Intel. All such Services are subject to the terms and conditions set forth in such Order or SOW as well as these Terms, to the extent not conflicting with such Order or SOW.

  1. Ownership .

    1. Dental Intel Ownership . As between the parties, Dental Intel owns and retains all right, title and interest in and to the Subscription Service and all other Dental Intel Materials. Dental Intel also owns all right, title and interest in and to de-identified and aggregated Customer Data, as set forth in Section 9(e) (“ De-identified Data ”). Third Party Software is owned by the applicable copyright holders. Portions of Dental Intel’s software and other materials may be licensed to it by third parties. The Subscription Service and all other Dental Intel Materials may be used by Customer and Users only for the purposes described in these Terms. Any rights not expressly granted herein are reserved by Dental Intel. Neither these Terms nor any other agreement between the parties changes ownership of any pre-existing software or other materials.

    2. Customer Ownership of its Data . As between the parties, Customer owns and shall retain all right, title and interest in and to all Customer Data. Customer Data does not include Feedback, Usage Data (as defined below), or De-identified Data.

    3. Feedback . Dental Intel shall own all rights and title to Feedback, and may incorporate it into any of its software, products and services. Dental Intel shall exclusively own all right, title and interest in and to any software and intellectual property developed or delivered to Customer in the performance of these Terms, regardless of whether it is based on or incorporates any Feedback, subject to the licenses granted herein to Customer.

    4. Usage Data . The Subscription Service tracks metadata and other usage data related to customers’ and Users’ use of the Subscription Service (“ Usage Data ”) and shares such data with Dental Intel. Dental Intel shall own such Usage Data, other than the Personal Information incorporated therein. Dental Intel shall have the perpetual right to collect, aggregate, use, distribute and sell such Usage Data for any legal purpose, including without limitation for the purposes of providing services and improving the Subscription Service and Company’s products and services generally. Dental Intel may retain and use Usage Data permanently. To the extent such Usage Data contains any individually identifiable data or Personal Information, Dental Intel shall not sell or otherwise provide such Usage Data to any third party unless the data been anonymized (e.g., no name or address attached to the particular data) and/or aggregated with other users’ data, so that it is not identifiable as to any particular person. Notwithstanding the foregoing, Dental Intel may share Usage Data in its original form as necessary or appropriate to provide services to Customer (for example, using a third party to process payments) or to comply with legal obligations.

  2. Fees .

    1. Fees . Access to the Subscription Service for Customer and its Users is subject to timely payment of the fees specified in the applicable Order(s) (the “ Fees ”). Standard support and maintenance services for the Subscription Service, as described in Section 4(a), are included as part of such Fees at no additional charge.

    2. Payment Terms .

    1. Changes to Fees . We will notify you in advance, either through the Subscription Service or to the email address you have most recently provided to us, if we change the Fees for the Subscription Service. If the Order specifies a specific length of time and Fees for the Subscription Service, that price will remain in force for that period of time. After the initial term ends, if your account is renewed, your Subscription Service Fees will be charged at our then-current rates. If your Subscription Service account is on a periodic basis (for example, monthly) with no other specific term commitment, we will notify you of any change in the Fees at least thirty (30) days in advance. If you do not agree to these changes, you must cancel and stop using the Subscription Service by notification to Dental Intel at the contact information set forth at the end of these Terms (with cancellation confirmation from a Dental Intel representative) no later than fourteen (14) days prior to the conclusion of your current payment term, whether monthly, yearly, or otherwise. If you cancel, your Subscription Service license ends at the end of your current service period or, if we bill your account on a period basis, at the end of the period in which you canceled.

    2. Taxes and Other Charges . The Fees do not include taxes or third-party charges, such as data transmission charges and Internet access. Customer is responsible for all such charges and for all taxes and duties, other than taxes on Dental Intel’s net income. If Customer is a tax-exempt entity, Customer shall provide a tax-exemption certificate to Dental Intel.

    3. Past Due Amounts . If any amounts owed by Customer are not paid on the due date, Dental Intel may, without limiting its other rights and remedies: (i) charge interest at the rate of 1% per month or the highest rate permitted by law, whichever is less, on the past due amounts; (ii) terminate these Terms under Section 7(b) and accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable, and/or (iii) suspend Customer’s and its Users’ access to the Subscription Service and turn off all shared links, until all outstanding amounts due are paid in full and have been processed by Dental Intel. If payment in full is not made, after ninety (90) days Customer’s and its Users’ accounts will be deactivated and all Customer Data will no longer be retrievable from the Subscription Service. Customer shall also be liable for all costs of collection, including reasonable attorney's fees, whether or not a suit is instituted. Customer is responsible for settling all outstanding balances in a timely manner and for maintaining updated billing information.

    4. Integrated Plan Additional Policies & Cancellation . If you purchase the Subscription Service from a reseller or another third party , then you acknowledge and agree that such third party is responsible for keeping your account payments current and any failure to do so may result in cancellation of your access to the Subscription Service. You acknowledge and agree that such third party has the authority and ability to cancel your access to the Subscription Service.

    5. Other . All amounts paid under these Terms are payable in U.S. dollars. All Orders are final and all payments are non-refundable, other than as expressly set forth in these Terms.

  1. Term; Termination or Suspension .

    1. Term and Renewal . These Terms will commence on the Effective Date and will continue for the initial term specified in the applicable Order(s) (the “ Initial Term ”). At the end of the Initial Term, these Terms will automatically renew for additional renewal terms (each a “ Renewal Term ”) at Dental Intel’s then-current rates or as otherwise agreed in writing by the parties, unless either party terminates or cancels these Terms by providing thirty (30) days prior written notice to the other party as set forth in the Payment and Cancellation Policy. The length of each Renewal Term depends upon Customer’s subscription plan and term and is set forth in the Cancellation Policy, unless otherwise specified in an Order.

    2. Termination or Suspension for Cause . Either party will have the right to terminate these Terms and Customer’s account for cause at any time, upon written notice, in the event of (i) any material breach of these Terms by the other party, subject to thirty (30) days prior written notice and opportunity to cure such breach; or (ii) the other party’s dissolution, distribution of a substantial portion of its assets, or cessation of all or substantially all of its normal business affairs. Additionally, Dental Intel may temporarily suspend Customer’s and its Users’ access to the Subscription Service for any actual or suspected breach of these Terms, until the breach is resolved or termination occurs, as well as for system updates and maintenance. You acknowledge that if your access to the Subscription Service is suspended or terminated, you may no longer have access to the Customer Data that is stored in the Subscription Service.

    3. Termination for Account Inactivity . Additionally, if your account is not currently subject to a prepaid subscription plan, Dental Intel in its discretion may terminate your account if: (i) you do not engage in any activity in your account within thirty (30) days after becoming a registered Customer or User, or (ii) you do not engage in any activity in your account for any period of one hundred twenty (120) days. In the event of such termination, any Customer Data you may have stored in the Subscription Service will be deleted.

    4. Effect of Termination . Upon final termination of these Terms and the Transition Period, Customer will promptly pay all outstanding amounts owed to Dental Intel. Each party will promptly return to the other party all Confidential Information of the other party and delete any copies of such information or materials from its systems and files. Upon termination by Dental Intel, for reasons other than cause, or at your direction, you may request access to your Customer Data on the system, which we will make available for an additional fee. You must make such request with thirty (30) days following termination. Otherwise,  any Customer Data you have stored with the Subscription Service may not be retrievable , and Dental Intel will have no obligation to maintain any data stored in your account. Sections 2(b), 2(d), 5, 6, 7(d), 8, 9, 12, 13, 16 and 17 will survive termination of these Terms.

  2. Confidential Information . The party receiving any Confidential Information (i) shall not disclose such Confidential Information to any person, other than employees and independent contractors who have a need to know such information and who are obligated to keep such information confidential; or (ii) use such Confidential Information for any purpose, except as expressly permitted by these Terms. The receiving party shall give Confidential Information at least the same level of protection as it gives its own information of similar sensitivity, but not less than a reasonable level of protection. Confidentiality obligations shall survive any termination of these Terms.

  3. Privacy and Security Relating to PHI and Personal Information .

    1. Reasonable Safeguards . Dental Intel agrees to maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including personal health information (“ PHI ”) and other personal information and data of Users, Customer’s patients, and other individuals (“ Personal Information ”). Dental Intel will not disclose or use PHI or Personal Information except (i) as set forth in these Terms, the Privacy Policy or the BAA, (ii) as compelled by law, (iii) as expressly permitted or instructed by Customer, or (iv) as reasonably necessary in order to provide the Subscription Service and other Services.

    2. Business Associate Agreement . With respect to the PHI of Customer’s patients that is input by Customer, Users, patients, or patients’ guardians into the Subscription Service, or that Dental Intel otherwise has access to in connection with these Terms, the parties hereby agree to the terms of the BAA attached hereto as Exhibit A . In the event of a conflict between the BAA, these Terms or the Privacy Policy, the BAA will control with respect to PHI.

    3. Privacy Policy . The Personal Information that Dental Intel obtains through Customer’s or Users’ use of the Subscription Service, Software, Services or any portion of the Website, whether through the registration process or otherwise, is governed by the Privacy Policy. The Privacy Policy sets forth Dental Intel’s policies and practices for collecting, using, maintaining, protecting and disclosing Personal Information. If a User does not agree with the Privacy Policy, the User may not use the Subscription Service, Software, Services or Website. Customer and Users also consent to Dental Intel’s communications and services as set forth in Section 10 below.

    4. Processing in the U.S. The servers that host Dental Intel’ Subscription Service, Software, and Website are based in the United States of America and all content, information, and Personal Information provided through the Website will be received, processed and stored in the United States of America. Subject to compliance with any applicable privacy or other laws and regulations, Dental Intel reserves the right to store and process Customer Data (including Personal Information) outside of the United States, subject to thirty (30) days’ prior notice of any such change in the processing location.

  1. Rights of Data Subjects . Dental Intel will comply with Users’ and patients’ requests in respect of the exercise of their rights with respect to their Personal Information under the Privacy Policy and applicable laws and regulations. Requests relating to PHI will be handled in accordance with the BAA.

    1. De-Identified Data; Use for Analyses . Unless otherwise prohibited by applicable law, Dental Intel may de-identify PHI or Personal Information in accordance with the provisions of applicable law and use and disclose such De-identified Data for any legal purpose. Dental Intel owns all right, title and interest in and to De-identified Data. Dental Intel may also use PHI or Personal Information in order to prepare analyses and reports, such as activity or quality-metrics reports, or any other reports the Subscription Service makes available, in order to render these reports to you. Preparation of such analyses and reports may include the use of data aggregation services relating to your treatment and health care operations, which Dental Intel may perform using PHI and Personal Information. Such reporting will be done in a manner that does not make any disclosure of PHI or Personal Information that are prohibited by law.

  1. Data Breach Notification . In the event of any breach of the security or confidentiality of Customer Data, Dental Intel will promptly inform Customer of the breach. Dental Intel and Customer will promptly coordinate regarding informing any affected Users or patients of the breach as required under applicable law.

  2. Customer’s and Users’ Security Obligations . Customer and its Users must keep their accounts and passwords confidential and not authorize any third party to access or use the Subscription Service on their behalf, unless Dental Intel provides an approved mechanism for such use. Customer and its Users must contact Dental Intel right away if they suspect misuse of their account or any security breach in the Subscription Service. We provide functions that allow you to control who may access your Customer Data. If you enable the features that allow you to share your Customer Data with others, anyone you've shared content with (including the general public, in certain circumstances) may have access to your data. You will maintain appropriate security, protection and backup copies of the Customer Data through your system, which may include use of additional encryption technology to protect the Customer Data from unauthorized access. You must immediately notify Dental Intel in writing of any unauthorized use of any Customer Data, any account, or the Subscription Service that comes to your attention, and cooperate with and assist Dental Intel with respect to any such unauthorized use as Dental Intel may reasonably request. Dental Intel will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Customer Data. Customer and Users are responsible for all activities that take place with their Subscription Service accounts.  Dental Intel will not be liable for any loss or damage arising from any unauthorized access to or use of an account.

  3. User Accounts . If you are a User whose Subscription Service account was provided by your employer or another organization, that party has rights to your account and may: manage your account, reset your password, or suspend or cancel your account; view your account's usage and profile data, including how and when your account is used; and read or store content in your account. If you have individually registered to use the Subscription Service and the domain of the primary email address associated with your account is owned by an organization and was assigned to you as an employee, contractor or member of such organization, and that organization wishes to establishes a commercial relationship with us and add your account to such relationship, then, if you do not change the email address associated with your account, your account may become subject to the commercial relationship between Dental Intel and such organization and will be controlled by such organization.

  1. Consent to Communications and Services .

    1. Communications from Dental Intel . By registering with Dental Intel, you understand that Dental Intel may send you communications or data regarding the Subscription Service and other Services, including but not limited to (i) notices about your use of the Subscription Service, including any notices concerning violations of use, (ii) updates and Modifications to the Subscription Service, and (iii) promotional information and materials regarding Dental Intel's products and services, via email. Dental Intel will give you the opportunity to opt-out of receiving electronic mail from us by following the opt-out instructions provided in the message.

    2. Remote Log-in Services . In connection with the provision of technical support, training and other Services, you agree that Dental Intel may remotely log in to your computers, devices and systems for purposes of providing the support, training or other Services, including, without limitation, technical trouble shooting, answering questions, benchmarking and providing training to you or your personnel. Remote login may be conducted through the use of third party entities. You further agree that Dental Intel may also remotely log in at any time as necessary or appropriate to maintain our Services.

    3. Log-off of Inactive Accounts; Spam Policies . Dental Intel reserves the right to log off accounts that are inactive for an extended period of time. In addition, Dental Intel may quarantine suspect messages. Dental Intel also may modify any domain and user settings with or without notice, including without limitation, altering settings so that spam or bulk email is denied, rather than being quarantined, to avoid space capacity issues which jeopardize the technical or economic viability of the Subscription Service, or the system used to implement the Subscription Service.

    4. Access to Your System . You agree to keep your computers powered on during the Subscription Service runtimes that you specify. You must add Dental Intel or its third party affiliate to the “allowed” list of programs and ensure that your firewall and anti-virus software programs do not block us. Additionally, your practice management software must always be accessible by Dental Intel. It is your responsibility to contact Dental Intel if you are upgrading or changing your computer systems.

    5. Access to Third Party Services . The Subscription Service may require you to give Dental Intel access to or require you to provide login information and password information for accounts or services you may have with third party providers that link to the Subscription Service. When you provide this information to Dental Intel or give Dental Intel access to these third party accounts, you agree that you have read all contracts and written agreements governing such access, login information and passwords and that you have all the necessary contractual and legal rights to give Dental Intel such access, login information and passwords.

    6. Recording of Service Calls . Dental Intel may record calls between you and our agents regarding the Subscription Service (“ Service Calls ”) and in connection with the Subscription Service, incoming calls, on your behalf as a Service, from, among others, your prospective clients (the “ Inbound Calls ” and, collectively with Service Calls, “ Call Recording ”). You consent to Call Recording and acknowledge you are responsible for notifying your employees and agents who may be recorded in a Service Call or Inbound Call (the “ Recorded Persons ”) and complying with all applicable laws, rules and regulations regarding call recording and privacy. It is your sole responsibility to provide and/or obtain, and you covenant that you will provide and/or obtain, all notices and permissions relating to Recorded Persons as may be required by applicable laws and regulations. You acknowledge and agree that if you collect information from Recorded Persons that may be subject to a privilege (including, but not limited to, attorney-client or doctor-patient privilege), you assume the full risk of using a third party provider for Call Recording, including any preclusion of the application of such privilege with respect to information exchanged during the Call Recording with the Records Persons.

  2. Customer’s Warranties . Customer represents and warrants to Dental Intel that:

  1. Customer has full power and authority to enter into these Terms and make the agreements specified herein.

  1. Customer shall not have any right or authority to make any representations or warranties on Dental Intel’s behalf, except as expressly approved in writing by Dental Intel; or to assume or create any obligations or responsibilities, express or implied, on behalf of Dental Intel; or to bind Dental Intel in any way; except as expressly set forth in these Terms. Dental Intel shall not be liable for any unauthorized representations or warranties made by Customer.


  1. Customer Data will not violate any person’s right of privacy or any copyright, trademark, or other intellectual property rights, and Customer will not transmit any such materials to Dental Intel. Customer has all the rights in the Customer Data necessary for Customer to use the Subscription Service and to grant the rights in these Terms; and the storage, use or transmission of the Customer Data pursuant to the terms of these Terms does not violate any laws or regulations or these Terms.

  1. No Warranties; Disclaimers and Limitations of Liability .

    1. DISCLAIMER OF WARRANTIES . THE SUBSCRIPTION SERVICE, DENTAL INTEL MATERIALS, AND OTHER PRODUCTS AND SERVICES OF DENTAL INTEL ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS EXPLICITLY SET FORTH IN THESE TERMS, DENTAL INTEL IS NOT PROVIDING ANY WARRANTIES AND REPRESENTATIONS REGARDING THE SUBSCRIPTION SERVICE AND OTHER PRODUCTS AND SERVICES OF DENTAL INTEL, AND DENTAL INTEL AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO DENTAL INTEL’S PRODUCTS AND SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, WHETHER SUCH CLAIMS ARISE BY LAW, BY REASON OF CUSTOM OR USAGE OF TRADE, OR BY COURSE OF DEALING. DENTAL INTEL AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SUBSCRIPTION SERVICE, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY YOU DUE TO CAUSES BEYOND THEIR CONTROL.

    2. AGREEMENTS WITH PATIENTS AND OTHERS . DENTAL INTEL EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOU MAY HAVE WITH YOUR PATIENTS, EMPLOYER, CONSUMERS OR WEBSITE USERS. YOU WILL BE SOLELY RESPONSIBLE FOR THE PRODUCTS AND SERVICES THAT YOU PROVIDE.

    3. Third Party Software, Websites and Services . Dental Intel is not liable for any damages or claims arising out of or related to Third Party Software. Open source copyright holders have no liability to Customer for any reason. If you decide to access or use any third party websites or services linked to the Subscription Service or our Website, you do this entirely at your own risk. Dental Intel is not responsible or liable for any third party websites, content, or services.

    4. COMPLIANCE WITH LAWS . DENTAL INTEL OFFERS NO ASSURANCE THAT YOUR USE OF THE SUBSCRIPTION SERVICE UNDER THESE TERMS WILL NOT VIOLATE ANY LAW OR REGULATION APPLICABLE TO YOU. DENTAL INTEL AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SUBSCRIPTION SERVICE, ITS CONTENTS OR ANY OTHER DENTAL INTEL MATERIALS ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SUBSCRIPTION SERVICE OR OTHER DENTAL INTEL MATERIALS OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING WITH RESPECT TO EXPORT AND IMPORT, DATA PRIVACY AND SECURITY.

    5. NO PROFESSIONAL ADVICE . YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SUBSCRIPTION SERVICE ARE NOT INTENDED AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT OF TAX, LEGAL OR OTHER PROFESSIONALS. THE SUBSCRIPTION SERVICE DOES NOT PROVIDE TAX OR LEGAL ADVICE, AND YOU ARE SOLELY RESPONSIBLE FOR OBTAINING SUCH ADVICE.

    6. Consumer Protections . In the event that the jurisdiction where the Subscription Service and other Dental Intel products or Services are received or used by you does not allow the exclusion of implied warranties or the limitation of liability for damages as set forth in this Section, Dental Intel’s liability will be limited to the greatest extent permitted by the applicable law in that jurisdiction.

    7. Limitations of Liability . TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL DENTAL INTEL, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, UNFORESEEABLE, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT); (ii) COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES; (iii) ANY LOSS OF DATA OR OTHER CONTENT RESULTING FROM DELAYS, NON-DELIVERIES, MIS-DELIVERIES, SECURITY BREACHES TO, SERVICE INTERRUPTIONS TO, OR ERRORS OR OMISSIONS RESPECTING THE SUBSCRIPTION SERVICE OR DENTAL INTEL’S OPERATIONS. THIS LIMITATION APPLIES TO DAMAGES HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF DENTAL INTEL HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF DENTAL INTEL AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SUBSCRIPTION SERVICE AND THESE TERMS WILL BE LIMITED TO THE GREATER OF AN AMOUNT EQUAL THREE MONTHS OF YOUR FEES FOR THE SUBSCRIPTION SERVICE OR FIVE DOLLARS ($5.00).

    8. GENERAL . THE LIMITATIONS AND EXCLUSIONS OF THIS SECTION 12 APPLY EVEN IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.

  2. Indemnification . To the extent permitted by law, you will indemnify, defend and hold harmless Dental Intel, including its affiliates, officers, directors, agents, employees, contractors, licensors, and other business partners, from and against any claim, demand, judgment, liability, costs, expense (including attorney fees and costs), cost, loss, damage, or other liability arising from any third party demand or claim arising out of your breach or alleged breach of these Terms, any of the Customer Data uploaded or provided by you, the products and services that you or your company or organization provide, or your violation of any applicable law, rule, or regulation. This indemnity does not apply if the claim is based upon Dental Intel’s gross negligence or willful misconduct.

  3. Publicity . Any press releases or other public statement regarding these Terms may be made only with the other party’s consent, which shall not be unreasonably withheld, except that a party may make public disclosures to the extent required by law, and Dental Intel is permitted to include Customer’s name on customer lists that may be posted on Dental Intel’s website or provided to potential customers and other third parties.

  4. Assignment . You may not assign or transfer these Terms, your Subscription Service account, or any of your rights or duties hereunder to any third party without prior written consent of Dental Intel, which may not be unreasonably withheld. We may assign, transfer, or otherwise dispose our rights and obligations under these Terms, in whole or in part, at any time without notice.

  5. Copyright Claims and Take-Down Policy . Dental Intel does not tolerate content that appears to infringe any copyright or other intellectual property rights or otherwise violates these Terms and will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. We reserve the right to delete or disable any Customer Data or content that is alleged to infringe or otherwise violate these Terms, and to terminate repeat offenders. For notice of alleged copyright infringement, please contact us at the email and/or street address set forth at the end of these Terms for legal notices. Federal law requires your copyright infringement notice to include the following information: (i) identification of the copyrighted work that you claim has been infringed; (ii) identification of the material, including URL, that you claim is infringing, with enough detail so that we may locate it; (iii) your address, telephone number, and e-mail address; (iv) a statement declaring under penalty of perjury that (A) you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (B) the above information in your notice is accurate, and (C) you are the owner of the copyright interest involved or you are authorized to act on behalf of that owner; and (v) your physical or electronic signature.

  6. General .

  1. Entire Agreement; Amendment . These Terms, including the Order(s), BAA, Privacy Policy and any other documents attached hereto or incorporated herein by reference, constitute the entire agreement between you and Dental Intel concerning the subject matter of these Terms, and supersede all prior or oral agreements or understandings with respect thereto. Any preprinted terms in a purchase order submitted by Customer are expressly agreed to be of no force or effect. These Terms may not be amended except by a writing signed by authorized representatives of both parties.

  2. No Waiver . Any waiver by either party of a default or obligation under these Terms will be effective only if in writing. Such a waiver does not constitute a waiver of any subsequent breach or default. No failure to exercise any right or power under these Terms or to insist on strict compliance by the other party will constitute a waiver of the right in the future to exercise such right or power or to insist on strict compliance.

  3. Choice of Law and Jurisdiction . These Terms shall be construed in accordance with the laws of the State of Utah, excluding conflicts of laws provisions. Should any dispute arise concerning these Terms and/or Dental Intel’s products or services, venue shall be laid in Salt Lake County, Utah, Utah state and federal courts shall have exclusive jurisdiction over any such dispute, and the parties hereby consent to the jurisdiction and venue of such courts. The parties specifically exclude from any application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Notwithstanding the foregoing, and solely to the extent required by law, claims regarding personal data privacy and consumer protection may be subject to the laws of your state of residence in the United States, or, if you live outside the United States, the laws of the country in which you reside.

  4. Severability . If any provision of these Terms is deemed invalid or unenforceable by a court or governmental authority, that provision shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remainder of these Terms shall remain in full force and effect.

  5. Export Compliance . Customer may not use, export or re-export the Subscription Service, Software or other Dental Intel Materials in any form in violation of U.S. export laws and regulations, or without first obtaining the appropriate United States and foreign government approvals.

  6. Notices . We may send you, in electronic form, information relating to the Subscription Service, information relating to our other products and services, and information that the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Subscription Service or by posting such information on the Subscription Service portal. Notices emailed to you will be deemed given and received when the email is sent. You consent to receiving legal notices electronically in this manner. If you refuse or withdraw your consent to receive notices electronically, you must stop using the Subscription Service. You may provide legal notices to us at the email address specified at the end of these Terms, with a duplicate copy sent via registered or certified mail, return receipt requested, to Dental Intel’s street address set forth below. Any such notices must specifically reference that it is a notice given under these Terms .

  7. Independent Contractors . The parties are independent contractors. Customer is not an agent of Dental Intel and will not represent to any third party that it is an employee or agent of Dental Intel. Customer shall have no authority to enter into any contract on behalf of Dental Intel or to make any representations or warranties on Dental Intel’s behalf to patients or any other third parties.

  8. U.S. Government Restricted Rights . Any Software provided as part of the Subscription Service for or on behalf of the United States of America, its agencies and/or instrumentalities (“ U.S. Government ”) is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable.

  9. Injunctive Relief . You acknowledge that the Dental Intel’s intellectual property and Confidential Information is highly valuable to Dental Intel, that any breach of your obligations with respect to confidentiality and/or use of Dental Intel’s intellectual property, including any breach by you of any restrictions on use of the Subscription Service or the scope of the licenses granted by Dental Intel herein, may severely damage Dental Intel, the extent of which damage would be difficult to ascertain and, therefore, that Dental Intel is entitled to seek, among other remedies, temporary and permanent injunctive relief and other equitable relief for any such breach, without the necessity of posting bond or other security, to the extent permitted by law.

  10. Time to File Claims . You must bring any claim related to these Terms or the Subscription Service within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims.

  11. Force Majeure . Dental Intel shall be excused from and shall not be liable for any delays or failure to perform its duties to the extent such delays or failures result from acts of nature, riots, war, acts of public enemies, fires, epidemics, labor disputes, or any other causes beyond its reasonable control.

  12. Electronic Signature . Where either party draws, types or attaches its signature or any other text, symbol or image in a box or space associated with any contract or form provided by Dental Intel, such party is agreeing to be legally bound by the terms and conditions of that contract or form. Such action constitutes an “Electronic Signature,” which shall have the same force and effect as an original signature. No third party certification or verification is necessary to validate an Electronic Signature.

  13. Dental Intel Contact Information .

Dental Intelligence, Inc.

2100 W Pleasant Grove Blvd., Suite 400

Pleasant Grove, UT 84062

Technical Support: support@dentalintel.com or +1 (801) 717-2777

Legal Notices (including privacy matters): legal@dentalintel.com (with a copy to Dental Intel’s street address, Attention: Legal Operations)

EXHIBIT A

BUSINESS ASSOCIATE AGREEMENT

If Customer is a Covered Entity or a business associate and includes Protected Health Information in Customer Data provided to Dental Intelligence, Inc. as a business associate or sub-business associate, the Customer Terms of Service between the parties (the “ Terms ”) will automatically incorporate the terms of this Business Associate Agreement (“ BAA ”) as part of the overall agreement between the parties. If there is any conflict between a provision in this BAA and a provision in the Terms, this BAA will control. In this BAA, Customer is referred to as “ Covered Entity ” and Dental Intelligence, Inc. or Dental Intel is referred to as “ Business Associate .”

Unless otherwise defined in this BAA, all capitalized words, like PHI, have the meanings set forth in the HIPAA Privacy and Security Rules, 45 C.F.R. Parts 160, 162 and 164, as modified from time to time.

WHEREAS, Business Associate has been engaged by Covered Entity to perform certain services under the Terms, wherein Business Associate may need to access, use and/or disclose PHI received from Covered Entity as a business associate; and

WHEREAS, the parties desire to ensure that their respective rights and responsibilities under the Terms are in accordance with applicable federal statutory and regulatory requirements relating to the access, use and disclosure of Protected Health Information (or “PHI”), including, without limitation, the Standards for Privacy of Individually Identifiable Health Information, and the Security Standards, collectively codified at 45 C.F.R. Parts 160, 162 and 164 (respectively the “ Privacy Standards ” and “ Security Standards ” ) under the Health Insurance Portability and Accountability Act of 1996 (“ HIPAA ”) and the Health Information Technology for Economic and Clinical Health Act, as set forth in Subtitle D of the American Recovery and Reinvestment Act of 2009 (“ HITECH ”); and

WHEREAS, the purpose of this BAA is to satisfy the applicable standards and requirements of HIPAA, HITECH, the Privacy Standards and the Security Standards and regulations thereunder;

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and BAA set forth herein, Business Associate and Covered Entity agree as follows:

1. Definitions :

a. “ Business Associate ” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this BAA, shall mean Dental Intelligence, Inc.

b. “ Covered Entity ” shall generally have the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the party to this BAA, shall mean the party identified as the Covered Entity in the first paragraph above.

c. " Electronic Health Record " shall have the same meaning as the term "electronic health record" in the American Recovery and Reinvestment Act of 2009, § 13400(5).

d. “ HIPAA Rules ” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164 and regulations issued thereunder, as may be expanded by HITECH.

e. “ Protected Health Information ” or “ PHI ” has the meaning given to Protected Health Information in the HIPAA Rules.

f. Other Terms . The following terms used in this BAA shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Electronic Protected Health Information (or “Electronic PHI”), Electronic Transactions Rule, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Required by Law, Secretary, Security Incident, Subcontractor, Transaction, Unsecured Protected Health Information, and Use.

g. Regulatory References . A reference in this BAA to a section in the HIPAA Rules means the section as then in effect or as amended.

2. Scope : This BAA sets forth the terms and conditions pursuant to which any and all PHI, which is provided, created, exchanged or received by and between Business Associate and Covered Entity will be handled. Business Associate and Covered Entity will comply with all applicable laws, including those governing the creation, use, disclosure, access, storage, and maintenance of PHI.

3. Duties and Responsibilities of Business Associate : Business Associate agrees to:

  1. Use and Disclosure of PHI . Not Use or Disclose PHI other than as permitted or required by this BAA, as set forth in Section 4.a below, or as required by applicable law;

  1. Safeguards . Use reasonable and appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 and HITECH with respect to electronic PHI, to protect the security of all PHI received from Covered Entity against Security Incidents, prohibited Uses or Disclosures of PHI or other misuse of PHI, as required by the HIPAA Rules;

  1. Required Reporting . Report to Covered Entity, within thirty (30) days, any prohibited Use or Disclosure of PHI received from Covered Entity of which Business Associate becomes aware, by Business Associate, any of its employees, Subcontractors or agents, or any third party receiving or obtaining such PHI from or through Business Associate, including Breaches of Unsecured Protected Health Information, in addition to any other reporting obligations of Business Associate under the HIPAA Rules, and report any Security Incident of which it becomes aware; provided, however, that the parties acknowledge and agree that from time to time Unsuccessful Security Incidents may occur, that this section constitutes notice to Covered Entity for such incidents, and that no additional notice to Covered Entity is required for such incidents. “Unsuccessful Security Incidents” means any pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and/or comparable attacks or attempts, as long as no such incident results in unauthorized access, Use or Disclosure of PHI. Such reports will include a description of the PHI used or disclosed and the nature of the Use or Disclosure, to the extent such information is known by Business Associate;

  1. Subcontractors . In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any Subcontractors that create, receive, maintain, or transmit PHI or Electronic PHI on behalf of Business Associate agree to same restrictions, conditions, and requirements that apply to Business Associate with respect to such PHI or Electronic PHI; including the obligation to report to Business Associate any instances of which it is aware of violation of the BAA with respect to PHI or Electronic PHI;

  1. Individual and Third Party Requests . If Business Associate receives a request from an Individual or any third party to inspect, obtain a copy of, or amend PHI, Business Associate will forward such request in writing to Covered Entity within five (5) business days of receiving the request. Covered Entity will be responsible for making all determinations regarding the third party request for PHI; Business Associate will neither make such determinations nor release PHI to a third party pursuant to such a request, except if and to the extent required by the HIPAA Rules;

  1. Designated Record Sets . If Business Associate’s services under the Terms require it to maintain a Designated Record Set, then:

  1. within ten (10) business days of Covered Entity’s request to Business Associate for a copy of PHI, Business Associate will provide the requested PHI to Covered Entity, as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.524; and

  1. Business Associate will make any amendment(s) to PHI in a Designated Record Set as directed or agreed to by Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.526;

  1. Accounting of Disclosures . Maintain and, within thirty (30) days of receiving a request, or sooner if Required by Law, make available the information required to provide an accounting of disclosures to either Covered Entity or the Individual as necessary to satisfy Covered Entity’s obligations under 45 CFR 164.528, for a period of at least six (6) years following the date of termination of this BAA;

  1. Comply with Applicable Obligations of Covered Entity . To the extent Business Associate is to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation(s);

  1. Books and Records . Make its internal practices, books, and records relating to the Use and Disclosure of Covered Entity’s PHI available to the Secretary for purposes of determining compliance with the HIPAA Rules. Neither Business Associate nor Covered Entity waives any attorney-client, accountant-client, or other legal privilege or confidentiality as a result of this Section 3.i; and

  1. Training . Business Associate will require each employee who will have access to PHI of Covered Entity, to comply with the restrictions and conditions applicable to Business Associate herein. Business Associate will train its employees who may have access to PHI regarding the terms and conditions of this BAA and their obligations under the HIPAA Rules.

  1. Electronic PHI . Business Associate will comply with the Security Standards and will use appropriate administrative, technical, and physical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of Electronic PHI that Business Associate creates, receives, maintains, or transmits on Covered Entity's behalf, as required by the Security Standards. Business Associate shall review and modify the security measures implemented in accordance with the above as needed to continue provision of reasonable and appropriate protection of Electronic PHI. Business Associate shall update documentation of such security measures in accordance with 45 C.F.R. § 164.316(b)(2)(iii) and shall designate a security officer and undertake appropriate training of its personnel in accordance with the Security Standards.

  1. Compliance with Electronic Transactions Rule . If Business Associate conducts in whole or part electronic Transactions on behalf of Covered Entity for which the Department of Health and Human Services has established standards, Business Associate shall comply, and will require any Subcontractor it involves with the conduct of such Transactions to comply, with each applicable requirement of the Electronic Transactions Rule.

4. Permitted Uses and Disclosures by Business Associate :

  1. Permitted Uses and Disclosures . Business Associate may only Use or Disclose PHI received from Covered Entity:

(i) as required to perform services for Covered Entity as specified under the Terms or other agreement between the parties;

(ii) for Business Associate’s proper management and administration (including improving its services), or to carry out the legal responsibilities of Business Associate, provided the disclosures are Required by Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and Used or further Disclosed only as Required by Law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached;

(iii) to provide Data Aggregation services relating to the Health Care Operations of Covered Entity, if so provided under the Terms or otherwise agreed in writing by the parties; and/or

(iv) to create de-identified information, in accordance with the standards set forth in 45 CFR 164.514(a)-(c), and to use and disclose such de-identified information for any purpose permitted by law.

  1. Required Uses and Disclosures . Business Associate shall disclose PHI (i) when required by the Secretary of HHS under 45 C.F.R. Part 160, Subpart C to investigate or determine Business Associate’ compliance with Subchapter C of 45 C.F.R., Subtitle A, and (ii) to Covered Entity, the individual or the individual's designee, as necessary to satisfy Covered Entity's obligations under 45 C.F.R. § 164.524(c)(2)(ii) and (3)(ii) with respect to the individual's request for an electronic copy of his or her PHI.

  1. Access . Business Associate will make available PHI in accordance with 45 C.F.R. § 164.524, upon request from Covered Entity, so that Covered Entity may meet its access obligations under 45 C.F.R. § 164.524.

  1. Minimum Necessary . Business Associate will, in its performance of the functions, activities, services, and operations specified above, make reasonable efforts to use, to disclose, and to request only the minimum amount of the PHI reasonably necessary to accomplish the intended purpose of the use, disclosure or request, except that Business Associate will not be obligated to comply with this minimum-necessary limitation of 45 C.F.R. § 164.502(b) if neither Business Associate nor Covered Entity is required to limit its use, disclosure or request to the minimum necessary. Business Associate and Covered Entity acknowledge that the phrase "minimum necessary" shall be interpreted in accordance with 45 C.F.R. § 164.502(b)..

  1. Subpart E . Business Associate may not Use or Disclose PHI in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity, except for the specific Uses and Disclosures set forth in Section 4.a.

5. Obligations of Covered Entity :

  1. Notice of Privacy Practices . Covered Entity shall notify Business Associate of any limitation(s) in the Notice of Privacy Practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s Use or Disclosure of PHI.

  1. Notice of Changes in Consent . Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an Individual to Use or Disclose his or her PHI, to the extent that such changes may affect Business Associate’s Use or Disclosure of PHI.

  1. Notice of Restrictions . Covered Entity shall notify Business Associate of any restriction on the Use or Disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate’s Use or Disclosure of PHI.

  1. Permitted Requests . Covered Entity will not request or require Business Associate to Use or Disclose PHI in any manner that would not be permissible under the HIPAA Rules if done by Covered Entity.

6. Term and Termination :

  1. Term . The Term of this BAA shall begin upon the effective date of the Terms and shall continue in effect until terminated as provided herein and until Business Associate returns or destroys all PHI of Covered Entity.

  1. Termination at End of Business Association . This BAA will automatically terminate without further action of the parties upon the termination or expiration of the business association between Business Associate and Covered Entity.

  1. Termination for Cause . If either party materially breaches this BAA, the other party may terminate this BAA and, at its election, the underlying Terms, subject to thirty (30) days prior written notice and opportunity to cure the breach.

  1. Effect of Termination . Within thirty (30) days of the termination of this BAA, Business Associate will either return to Covered Entity or, if agreed to by Covered Entity, destroy all PHI received from Covered Entity or created, maintained, or received by Business Associate on behalf of Covered Entity, that Business Associate still maintains in any form (including any information in the possession of any employee, Subcontractor or other agent of Business Associate). Upon request of Covered Entity, Business Associate will provide a certificate to Covered Entity acknowledging such destruction. Business Associate will thereafter retain no written, digital, back-up or other copies of any PHI of Covered Entity. Notwithstanding the foregoing, if the return or destruction of PHI upon termination is not feasible, Business Associate shall so inform Covered Entity and will continue to maintain the security and privacy of such Protected Health Information in a manner consistent with the obligations of this BAA and as required by applicable law, for so long as Business Associate is in possession of such information. Business Associate will return or destroy such retained PHI as soon as is reasonably feasible. Business Associate may retain all de-identified information created prior to the date of termination of this BAA. The obligations of Business Associate under this Section 6 shall survive the termination of this BAA.

7. Ownership : All PHI that Covered Entity discloses to Business Associate pursuant to this BAA is and will remain the property of Covered Entity.

8. Limitation of Liability . NOTWITHSTANDING ANY OTHER PROVISION IN THIS BAA, UNDER NO CIRCUMSTANCES WILL BUSINESS ASSOCIATE HAVE ANY OBLIGATION OR LIABILITY HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, COLLATERAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES INCURRED BY COVERED ENTITY (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS, COSTS OF COVER, COSTS OF DELAY, OR DAMAGES TO BUSINESS REPUTATION), REGARDLESS OF HOW SUCH DAMAGES ARISE, WHETHER OR NOT BUSINESS ASSOCIATE WAS ADVISED SUCH DAMAGES MIGHT ARISE, OR THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL BUSINESS ASSOCIATE HAVE ANY OBLIGATION, OR BE LIABLE FOR ANY DAMAGES, DIRECT OR OTHERWISE, UNDER THIS BAA IN EXCESS OF THE TOTAL AMOUNTS PAID BY COVERED ENTITY TO BUSINESS ASSOCIATE PURSUANT TO THE TERMS. These limitations are cumulative; the sum of multiple claims may not exceed such limit.

9. Miscellaneous :

  1. Assignment; Binding Effect : This BAA is personal to Business Associate and Covered Entity and may not be assigned or delegated by either party without the prior written consent of the other party in each instance; provided, however, that in the event of a permitted assignment of the Terms, this BAA may be assigned together with the Terms. This BAA shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, successors, and permitted assigns.

b. Entire BAA; Amendment : This BAA contains the entire BAA between the parties, and supersedes all prior or contemporaneous BAAs, understandings, or representations with respect to the subject matter hereof. This BAA may be amended only by written BAA of the parties. Business Associate and Covered Entity agree to amend this BAA to the extent necessary to allow both parties to comply with the HIPAA Rules as they may be amended or recodified from time to time, or to comply with other applicable regulations or statutes for the protection of PHI.

c. Severability . If any term or provision of this BAA shall to any extent be invalid or unenforceable, the remainder of this BAA shall not be affected thereby and each term and provision of this BAA shall be valid and enforced to the fullest extent permitted by law.

d. Conflict : The terms and provisions of this BAA shall supersede any other conflicting or inconsistent terms and provisions in the Terms, including any other attachments thereto and documents incorporated therein by reference.

e. Choice of Law and Venue : This BAA shall be construed in accordance with the laws of the State of Utah, without giving effect to the choice of law provisions thereof. Venue for any action or proceeding related to this BAA shall be in the state or federal courts of the state of Utah, as appropriate. The parties agree to the personal jurisdiction and venue of such courts.

f. Notices . Any notice or report hereunder shall be deemed given if delivered or sent by first class mail, postage prepaid, addressed to the other party at the address set forth in the Terms, or at such other address as designated by the party by written notice, or by commercial delivery service, or by confirmed email or facsimile. If notice is given by mail and the notice affects the other parties' rights hereunder, the effective date of the notice shall be seven (7) days after the date of mailing or the date the notice is received, whichever is earlier.

g. Interpretation . Any ambiguity in this BAA shall be interpreted to permit compliance with the HIPAA Rules.






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