Terms of Service
Last updated: October 5, 2020
1. Definitions
1.1 “Activation Date” shall be the date on which the Licensee is delivered an activation key or similar device which may include just a login name, and password from Novadontics to use the Novadontics Software which is also referred to herein as “Cloud Programs”.
1.2. “Licensee Data” means information entered into the Cloud Programs by Licensee in the course of its authorized access and use of the Cloud Programs, which are stored on the Cloud Server for access and retrieval by the Licensee.
1.3. “Cloud Server” shall mean one or more server(s) provided by Novadontics or its agent through which Licensee accesses the Cloud Programs, identified by a URL and one or more accounts and passwords to be established by Licensee.
1.4. “Cloud Programs” shall mean the computer software in object code or other form owned or provided by Novadontics for which Licensee has Subscription Rights granted pursuant to the Agreement, updates and upgrades to the Cloud Programs, and online documentation. In most instances, the Cloud Programs will reside on the Cloud Server.
1.5. “Provider” means any owner, employee, independent contractor, or agent of Licensee who is a licensed healthcare professional and whose professional services may be billed to a patient or third-party payer, including, but not limited to, dentists and dental hygienists. “Provider” does not include dental assistants, laboratory or radiology technicians, billing personnel, scheduling personnel, case managers, or other clinical or administrative staff whose services are not separately billable as professional services.
1.6. “Services” shall mean Cloud Services, Electronic Services, Customer Support Services or other services specifically identified in the Subscription Agreement or other agreement.
1.7. “Mobile App” shall mean any Novadontics-provided application or Cloud Program configured to operate on a supported mobile device and provide a user interface for accessing or using the Cloud Programs or other associated programs.
1.8. “Update” shall mean minor extensions to the supplied functionality and/or replacement of the manner of functioning of a supplied functionality by a newer functionality which has improved characteristics, but which does essentially retain the original functional scope and/or implements it differently.
1.9 “Upgrade” shall mean an extension of the Software feature set.
2. Use of Cloud Programs
2.1. Subscription Rights Granted
A. Novadontics grants to Licensee a limited, non-exclusive, non-sub-licensable, non-transferable right (“Subscription”) for the number of Providers defined in the Novadontics Subscription Agreement. If not otherwise specified in the Subscription Agreement, the Subscription includes access for authorized users of Licensee in accordance with the applicable subscription plan and Novadontics’s then-current licensing, user-access, and system requirements. Licensee shall ensure that each licensed user shall have their own password and that each licensed user shall not share their password with unlicensed or unauthorized users. Licensee shall be entitled to use the Cloud Programs as follows: (i) to assign access rights to the Cloud Programs on the Cloud Server solely for Licensee’s own internal business operations; and (ii) to use any documentation provided with the Cloud Programs (online or otherwise) in support of Licensee’s authorized use of the Cloud Programs. Licensee or any of their agents shall not reverse engineer, modify or otherwise create derivative works of the Cloud Programs, remove any proprietary notices or access the Cloud Programs or copy any of the Cloud Program features, functions or user interfaces. Licensee shall not permit or facilitate any third party in being able to reverse engineer, modify or create derivative works of the Cloud Programs, to remove any proprietary notices or to access the Cloud Programs or copy any of the Cloud Program features, functions or user interfaces. In addition to the foregoing, Licensee shall not allow third parties to access or view the Cloud Programs, for any other purpose other than the internal business use purpose intended herein.
B. Licensee shall not download the Cloud Programs or cause or permit the reverse engineering, disassembly, decompilation, or any other action on the Cloud Programs to discover or reproduce the source code or underlying algorithms of such Cloud Programs. Licensee shall not use the Cloud Programs in any manner not authorized under this Agreement.
Licensee shall not, and shall not permit any third party to, access or use the Cloud Programs through any automated means, including bots, crawlers, scrapers, scripts, or similar technologies, except as expressly authorized in writing by Novadontics. Licensee shall not attempt to circumvent, disable, defeat, probe, test, or interfere with any authentication, access control, security feature, usage restriction, or other protective measure of the Cloud Programs or related systems, or otherwise disrupt or impair the operation, security, or integrity of the Cloud Programs or Services.
C. Novadontics reserves and retains all right, title, interest in and to copyright, and other common law or statutory proprietary rights in the Cloud Programs and Services delivered under this Agreement, including all related intellectual property rights (collectively, the “Novadontics Intellectual Property Rights”). Licensee acknowledges that it does not acquire any rights, express or implied, in the Cloud Programs, other than those specified in the Agreement, and shall take no action, nor permit or facilitate any third party in taking such actions, against Novadontics’s Intellectual Property Rights.
D. In addition to any other rights or remedies Novadontics may have under this Agreement to protect itself and the Novadontics Intellectual Property Rights, Licensee shall indemnify Novadontics for any and all losses, damages or expenses it incurs as a result of Licensee’s breach, or threatened breach, of any of its obligations under this Section 2.
2.2. Verification. Novadontics shall have the right to monitor use of the Cloud Programs by Licensee: (i) electronically at any time; or (ii) by on-site audit of Licensee’s use of the Cloud Programs not more than once per year upon reasonable advance, written notice to Licensee. Should Novadontics discover underpayments in the amounts owed it under the Agreement, Novadontics shall have the immediate right to invoice Licensee and receive payment for such additional amounts owed.
3. Services
3.1 Hosting Services. Novadontics will provide Licensee with access to the online Cloud Programs selected in the Novadontics Subscription Agreement and will provide for the storage and retrieval of Licensee Data in connection with use of the Cloud Programs. Licensee is responsible for obtaining adequate broadband access to the Internet using software and hardware that meet the minimum requirements, including security requirements and high-speed bandwidth requirements that may be published and updated from time to time at www.novadontics.com.
3.2 Access. Licensee shall designate user account names, passwords, and other authentication methods made available by Novadontics (“Access Credentials”) for Providers and other permitted users. Each authorized user shall be assigned individual Access Credentials, and Licensee shall not permit users to share Access Credentials.
Licensee is responsible for administering and maintaining its user accounts, access permissions, and role-based permissions, including assigning users only the level of access reasonably appropriate for their duties. Licensee is responsible for promptly modifying or deactivating access when a user’s employment, engagement, responsibilities, or authorization changes or ends.
Licensee shall maintain reasonable security measures for devices used to access the Cloud Programs and shall use multi-factor authentication and other security features made available by Novadontics where required by Novadontics or enabled by Licensee. Licensee is responsible for maintaining the confidentiality and security of its Access Credentials and for configuring staff access appropriately.
In the event that Licensee designates Access Credentials to Providers not stated or authorized under a Novadontics Subscription Agreement, Licensee agrees that by doing so, it shall incur additional subscription and Services fees at the then-current Provider rates.
Novadontics will deem any communication, data transfer, or use of the Cloud Programs received under Licensee’s Access Credentials to be for Licensee’s benefit and use. Licensee agrees to promptly notify Novadontics if any Access Credentials are lost, stolen, compromised, or used in an unauthorized manner and to take reasonable steps to prevent further unauthorized access.
Licensee represents and warrants that it has the rights to all Licensee Data, including the right to upload Licensee Data to the Cloud Server in connection with its authorized use of the Cloud Programs. Licensee agrees that the Licensee Data and its use do not infringe or misappropriate the rights of any third party and agrees to indemnify and hold Novadontics harmless from any third-party claims of infringement or misappropriation under the same terms and conditions set forth below for Novadontics’s infringement indemnity.
3.3 Data Security. Licensee shall access and use the Cloud Programs in accordance with Novadontics’s then-current security requirements and shall use reasonable administrative, physical, and technical safeguards to protect Licensee Data, Access Credentials, and devices used to access the Cloud Programs. Licensee is responsible for maintaining the security of its own systems, networks, devices, and internet connections used to access the Cloud Programs.
Licensee acknowledges that certain Services and Third-Party Integrations may, by the nature of the services being provided, require Novadontics to transmit or make available patient protected health information (“Patient PHI”) to third-party vendors or service providers. Where applicable, Novadontics shall handle such Patient PHI in accordance with the Agreement, the HIPAA Business Associate Agreement Addendum attached as Exhibit A, and applicable law.
The Cloud Programs and Mobile App are subject to Novadontics’s then-current system requirements, including requirements relating to supported browsers, operating systems, mobile devices, hardware, software, internet connectivity, and other technical specifications. Licensee is responsible for maintaining hardware, software, devices, internet connectivity, and other technology that meets the then-current system requirements. Novadontics may modify its system requirements from time to time as technology, security requirements, and the Cloud Programs evolve. Current system requirements will be made available on the Novadontics website, within the Cloud Programs, or through other documentation provided by Novadontics.
Novadontics shall maintain reasonable administrative, physical, and technical safeguards designed to protect the confidentiality, integrity, and availability of Licensee Data and shall comply with its applicable obligations under Exhibit A, the HIPAA Business Associate Agreement Addendum. Novadontics shall maintain Licensee Data on secure systems and maintain data backup and recovery measures in accordance with generally accepted industry practices.
3.4 Ownership of Data and Subscription. Licensee shall retain ownership of all Licensee Data stored or retrieved in connection with use of the Cloud Programs, which data shall be subject to the confidentiality provisions set forth below. Licensee agrees that storage or caching of Licensee Data is not an infringement of any intellectual property rights of Licensee. Licensee agrees that it will not store data on the Cloud Server that is subject to the rights of any third parties without first obtaining all required authorizations and rights in writing from such third parties, and shall indemnify Novadontics for any losses, damages or expenses it incurs as a result of Licensee’s failure to obtain such authorizations. Licensee agrees that Novadontics may utilize data that comes into the possession of Novadontics by virtue of its performance under this Agreement for the purpose of aggregating statistics that may be helpful for Licensee’s or Novadontics’s benefit, for research and trend analysis, and for other lawful purposes, as determined by Novadontics. Provided that Novadontics implements appropriate de-identification criteria in accordance with the Standards for Privacy of Individually Identifiable Health Information set forth in 45 C.F.R. §164.514(b), Licensee acknowledges and agrees that de-identified information is not Protected Health Information as defined in the applicable regulations and that Novadontics may use such de-identified information for any lawful purpose.
3.5 Customer Support Services and Third-Party Integrations. Novadontics will provide Customer Support Services in accordance with its then-current support policies, so long as Licensee is entitled to use the applicable Cloud Programs and Services.
The Cloud Programs may integrate or interface with third-party products, software, platforms, applications, devices, and services (“Third-Party Integrations”) from time to time. The availability, functionality, compatibility, and continued support of Third-Party Integrations are subject to change and may depend on the applicable third-party provider. Novadontics may add, modify, replace, suspend, or discontinue support for any Third-Party Integration at any time. A current list of supported or available Third-Party Integrations may be made available by Novadontics through its website, Cloud Programs, documentation, or other communications.
Novadontics may provide reasonable support relating to the interface between the Cloud Programs and supported Third-Party Integrations; however, Novadontics does not control and is not responsible for the operation, availability, performance, security, functionality, support, or continued availability of third-party products or services. Novadontics does not warrant or guarantee any Third-Party Integration or any product or service provided by a third party.
Novadontics may provide Updates to the Cloud Programs or Mobile App at such times and in such manner as Novadontics, in its discretion, deems appropriate. Upgrades, additional functionality, or other modified versions of the Cloud Programs may be subject to additional fees or terms unless expressly included in the applicable Novadontics Subscription Agreement.
3.6 Electronic Services. In connection with use of the Cloud Programs, Novadontics may provide certain Electronic Services to Licensee, as set forth in the applicable Order Form(s), in conjunction with one or more third-party partners, and Licensee hereby waives any and all liability and claims which Licensee may have against Novadontics or the partner in connection with the provision of Electronic Services except to the extent directly caused by the willful misconduct or gross negligence of Novadontics or the partner. Electronic Services may include services to import data from other existing systems.
3.7 Data Import Limitations. Licensee is responsible to provide data exactly in the format specified by Novadontics documentation. The Novadontics database resulting from import of Licensee’s data will be a reflection of the quality of data provided by the Licensee. Novadontics is not responsible for delays in or inability to perform services due to improperly formatted or corrupt files, viruses on media provided, or incompatible backup media or software. Licensee acknowledges that transferring data is subject to the possibility of human and machine errors, omissions, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. Novadontics shall not be liable for any such errors, omissions, or losses. Licensee is responsible to adopt reasonable measures to limit the impact of such problems, including backup of original data. Licensee is responsible for reviewing the accuracy of all imported data. Licensee is also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data. Note that additional fees may apply for the data transfer from existing database software or other software to the Novadontics Software in a format suitable for the Novadontics Software.
3.8 Data Import Acceptance. Following a data import, Novadontics warrants the integrity of the supplied production database for a period of 5 business days from the delivery date, or until the database is altered in any way by the Licensee, whichever comes first. During the warranty period, Licensee may report any discrepancies or errors, and upon verification of the error, Novadontics may at its option correct the database or refund the amount paid for the data import service. If Novadontics is unable to replicate an error, it shall be under no obligation to take any further action under this Section.
3.9 Consulting Limitations. Novadontics warrants that all consulting Services including any phone consultations are performed by trained personnel and that Services will be provided for the scope and time period indicated. However, Novadontics does not guarantee any specific results from training or other consulting Services. As with all consulting services, effectiveness depends largely upon Licensee’s ability and willingness to utilize and implement ideas, concepts, and practices presented by Novadontics consultants.
3.10 Expiration of Purchased Services. All purchased Service(s) must be utilized by Licensee within 90 days of purchase (the Effective Date on the Novadontics Subscription Agreement or such other date as the parties may subsequently agree to in writing). Any Service(s) not utilized by Licensee within that period will be deemed expired and will be non-refundable, except where Licensee’s inability to utilize the Service(s) within that period is due to Novadontics being unable to provide the Service(s).
3.11 LICENSEE ACKNOWLEDGES THAT THE PROVISION OF CARE TO ITS PATIENTS IS SOLELY AND EXCLUSIVELY ITS RESPONSIBILITY AND THAT THE CLOUD PROGRAMS ARE INTENDED TO BE USED AS A SUPPLEMENT ONLY TO LICENSEE’S EXISTING PROCESSES AND PROCEDURES. LICENSEE WILL NOT RELY ON THE CLOUD PROGRAMS FOR THE PROVISION OF PROPER CARE TO ITS PATIENTS. LICENSEE’S PROCESSES AND PROCEDURES WILL BE SET UP TO ENSURE ITS PROPER FULFILLMENT OF ITS OBLIGATIONS TO ITS PATIENTS.
3.12 Artificial Intelligence and Automated Features. The Cloud Programs may include artificial intelligence, machine learning, automated analytics, summaries, suggestions, recommendations, clinical-support tools, generated content, or other automated features (collectively, “Automated Features”). Licensee acknowledges that information generated or provided through Automated Features may be incomplete, inaccurate, or contain errors and should not be relied upon without appropriate review and verification.
Automated Features are intended to assist Licensee and its authorized users and are not a substitute for independent professional judgment. Licensee and its Providers are solely responsible for reviewing and evaluating information generated by Automated Features before relying upon or using such information in connection with patient care, diagnosis, treatment planning, clinical decision-making, billing, coding, business operations, or other professional activities.
Novadontics does not practice dentistry or medicine and does not provide medical, dental, diagnostic, treatment, or other professional healthcare advice through its Automated Features. All clinical decisions, diagnoses, treatment recommendations, treatment plans, and patient care remain solely the responsibility of Licensee and the applicable licensed Provider. Licensee shall not represent any output generated by an Automated Feature as having been independently reviewed, approved, or endorsed by Novadontics.
Licensee acknowledges that the availability, functionality, and output of Automated Features may change from time to time as such features are updated, improved, modified, or discontinued. Licensee is responsible for ensuring that its use of Automated Features complies with applicable laws, regulations, professional standards, and Licensee’s own policies and procedures.
3.13 Marketplace and Third-Party Vendors. The Cloud Programs may provide Licensee with access to products offered by independent third-party vendors (“Vendors”) through the Novadontics marketplace or other purchasing features (“Marketplace”). Novadontics processes Marketplace orders and payments directly from Licensee, while the applicable Vendor is responsible for fulfillment and shipment of the products directly to Licensee.
Product availability, descriptions, specifications, pricing, estimated delivery dates, and other product information are subject to change. Novadontics may charge a marketplace service fee, administrative fee, or markup in connection with products purchased through the Marketplace. Any applicable fee or markup will be reflected in or incorporated into the price presented to Licensee at the time of purchase. Licensee is responsible for reviewing and approving the applicable price and charges before submitting an order.
Unless otherwise expressly stated, the applicable Vendor or manufacturer is responsible for product quality, product warranties, product defects, fulfillment, and shipment. Returns, exchanges, cancellations, refunds, damaged or defective products, and warranty claims are subject to the applicable Vendor’s or manufacturer’s policies. Novadontics may facilitate the processing of returns, refunds, exchanges, warranty claims, or other product-related matters between Licensee and the applicable Vendor but does not manufacture the products offered through the Marketplace and does not independently warrant such products.
Licensee is responsible for the purchase price and all applicable shipping and handling charges, taxes, duties, customs charges, and other fees associated with Marketplace purchases. Shipping charges and delivery times may vary based on the Vendor, destination, product, and shipping method. For international orders, Licensee is responsible for any additional shipping charges, customs duties, import taxes, tariffs, brokerage fees, or other charges associated with delivery. Novadontics may charge such amounts to Licensee’s payment method on file where applicable.
Novadontics does not guarantee the continued availability of any Vendor, product, price, or Marketplace feature and may add, remove, or change Vendors, products, pricing, or Marketplace functionality at any time. Products offered by a Vendor that are not currently available through the Marketplace may be considered for addition upon request to Novadontics.
4. Term & Termination
4.1 Term. The Agreement shall commence on the Effective Date specified in the applicable Novadontics Subscription Agreement. The subscription term shall commence on the Billing Start Date specified in the Subscription Agreement, regardless of the Access Start Date, and shall continue for the subscription term specified therein (the “Initial Term”). Thereafter, the subscription shall automatically renew for successive terms of the same duration unless either party provides written notice of its intention not to renew at least sixty (60) calendar days prior to the end of the then-current Term. The Initial Term and any subsequent renewal term shall collectively be referred to as the “Term.” Subscription fees during the Initial Term and any renewal term shall be subject to the annual adjustment set forth in Section 6.2. Upon renewal, subscription fees may also be adjusted to Novadontics’s then-current fees, unless otherwise agreed to in writing. If Licensee cancels or terminates the Agreement before the end of the then-current Term, Licensee shall remain responsible for all subscription fees and other amounts due for the remainder of that Term.
4.2 Termination for Cause. Either party may terminate the Agreement at any time upon thirty (30) days prior written notice if the other party commits a material breach that remains uncured after thirty (30) days written notice specifying the nature of the breach and identifying the measures required to correct the breach. Notwithstanding the foregoing, Novadontics may terminate the Agreement and/or terminate access to the Cloud Programs (i) immediately if it has reason to believe that Licensee has violated its obligations under Section 2 of the Agreement, and (ii) for non-payment of fees upon ten (10) days prior notice, at which time fees for the current Term shall be due and payable in full. Should Novadontics invoke this Section, it shall have the right to also terminate Licensee’s rights, or access, to any other Services then provided Licensee by Novadontics.
4.3 Effect of Termination. Termination of the Agreement shall terminate Licensee’s rights to continued use of, licenses to, and access to the Cloud Programs and to any further Services. Termination shall not affect the obligation of Licensee to pay all fees that have accrued or are otherwise owed by Licensee under the Novadontics Subscription Agreement or the Agreement, and shall not affect the right of any party to pursue a claim for breach of the Agreement that accrued prior to the date of termination. The following sections shall survive expiration or termination of the Agreement: Sections 2.1.B and 2.1.C; Section 4.4; Section 5.1; Section 7; Section 8; and any other indemnification, intellectual property, confidentiality, data retention, or other rights or obligations that by their nature are intended to survive expiration or termination of the Agreement.
4.4 Data Retention and Export. Following termination or expiration of the Agreement, Novadontics will retain Licensee Data for a period of two (2) years from the effective date of termination or expiration. At any time during this two-year retention period, Licensee may submit a written request to Novadontics for an export of its Licensee Data. The fee for preparation and export of Licensee Data is $2,995. Novadontics will provide the requested data export within thirty (30) days following receipt of both Licensee’s written request and payment of the applicable data export fee. Licensee Data will be provided in a combination of PDF and Excel-compatible formats, or other reasonably appropriate formats, depending on the type and nature of the data. Following expiration of the two-year retention period, Novadontics may permanently delete Licensee Data without further notice to Licensee, except to the extent that retention is required by applicable law.
4.5 Suspension of Access. Novadontics may temporarily suspend or restrict Licensee’s or any authorized user’s access to all or any portion of the Cloud Programs or Services if Novadontics reasonably determines that: (i) such access or use poses a security risk to the Cloud Programs, Services, Novadontics, Licensee, or any third party; (ii) there is suspected unauthorized, fraudulent, abusive, or unlawful use of the Cloud Programs or Services; (iii) suspension is reasonably necessary to prevent or mitigate unauthorized access, a security incident, or damage to the Cloud Programs or related systems; or (iv) suspension is required by applicable law, regulation, court order, or governmental authority. Where reasonably practicable, Novadontics will provide Licensee notice of the suspension and will restore access when the circumstances giving rise to the suspension have been reasonably resolved.
5. Indemnity, Warranties, Remedies
5.1 Infringement Indemnity. Novadontics will defend and indemnify Licensee against a claim that the Cloud Programs infringe a valid United States copyright or patent, provided that: (a) Licensee notifies Novadontics in writing within 2 days of the claim; (b) Novadontics has sole control of the defense and all related settlement negotiations; and (c) Licensee provides Novadontics with the assistance, information and authority necessary to perform Novadontics’s obligations under this Section. In the event the Cloud Programs are held or are believed by Novadontics to infringe, Novadontics shall have the option, at its expense, to (a) modify the Cloud Programs to be non-infringing; (b) obtain for Licensee a subscription to continue using the Cloud Programs; or (c) terminate the subscription for the infringing Cloud Programs. This Section 5.1 states Novadontics’s entire liability and Licensee’s exclusive remedy for infringement.
5.2 Warranties and Disclaimers
A. Cloud Program Warranty. Novadontics warrants that the Cloud Programs will substantially perform in accordance with the documentation for a period of thirty (30) days after the Activation Date (the “Warranty Period”), provided that (i) Licensee has a current, paid-up right to use the Cloud Programs; and (ii) Licensee’s access to the Cloud Server will meet the minimum criteria set forth in Novadontics’ System Requirements document available at www.Novadontics.com. This warranty shall not apply to issues arising from Licensee’s use of third-party software with the Cloud Programs, failure to comply with Novadontics’s instructions, including its documentation, additions or modifications to the Cloud Programs that are not approved by Novadontics or any other factors outside of Novadontics’s control. Licensee’s sole remedy during the Warranty Period is for Novadontics to repair or replace, at its sole option, the Cloud Programs upon Novadontics’ verification of any issues.
B. Services Warranty. Novadontics warrants that its Cloud Program Services, Customer Support Services, Electronic Services, and other Services described in an applicable Novadontics Subscription Agreement or other agreement will be performed consistent with generally accepted industry standards.
C. Disclaimers. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Novadontics does not warrant that the Cloud Programs will operate in the combinations that Licensee may select for use, that the operation of the Cloud Programs will be uninterrupted or error-free, or that all Cloud Program errors will be corrected.
5.3 Exclusive Remedies. For any breach of the warranties contained in Section 5.2, Licensee’s exclusive remedy, and Novadontics’ entire liability, shall be:
A. For Cloud Program Services and Electronic Services: During the Warranty Period, at Novadontics’ sole option, the correction of Cloud Program errors that cause breach of the warranty, provided Novadontics can replicate the errors. Any error not reported to Novadontics by Licensee within the Warranty Period will be deemed waived and accepted by Licensee. If Novadontics cannot reproduce the error, it will have no further obligation under this subsection.
B. For all other Services: At Novadontics’ sole option, the performance of the Services provided that Licensee notifies Novadontics in writing of any defects in the Services within thirty (30) days of their performance. Any error not reported to Novadontics by Licensee within thirty (30) days of its discovery will be deemed waived and accepted by Licensee. If Novadontics cannot reproduce the error, it will have no further obligation under this subsection.
6. Payment Provisions
6.1 Invoicing and Payment. Novadontics reserves the right to refuse to commence performance of Services if one-time Services fees have not been paid. Application Subscription Fees shall be due immediately. Subsequent fees shall be payable monthly in advance on the first or fifteenth day of each succeeding month. All other Services that are variable and dependent on actual usage are billed monthly in arrears and due upon receipt of invoice (which may be submitted electronically), which will be sent within the first 5 business days of each calendar month. An administrative late charge per invoice per month will be charged for any invoice not paid by the due date and which remains unpaid each 30 days thereafter, including any electronic transaction that is declined and any returned checks. Additionally, any amounts payable by Licensee hereunder which remain unpaid after the due date shall be subject to a finance charge equal to the lesser of 1.5% per month or the maximum amount permitted under applicable law, from the due date until such amount is paid.
6.2 Annual Subscription Fee Adjustment. Subscription fees shall increase by six percent (6%) annually, effective on each anniversary of the Billing Start Date. Such annual adjustment is intended to account for increases in operating costs, inflation, technology and infrastructure costs, labor costs, regulatory and compliance expenses, and other costs associated with providing and maintaining the Cloud Programs and Services. The annual adjustment shall apply during the Initial Term and any renewal term and shall not constitute a modification of the Agreement or require execution of a new Subscription Agreement.
6.3 Taxes. The fees listed in the Agreement are exclusive of all applicable taxes. If, at any time during the Term, Novadontics is required by applicable law or as a result of a change in law, regulation, tax treatment, or governmental interpretation to collect, charge, remit, or pay any sales, use, value-added, excise, or other applicable taxes, duties, or governmental charges based on the Subscription Rights Granted, Services provided under the Agreement, or Licensee’s use of the Cloud Programs or Services, such amounts may be added to Licensee’s subscription fees or other charges and shall be billed to and paid by Licensee.
If Novadontics is found to be responsible for the withholding and payment of taxes on behalf of Licensee, Licensee agrees to indemnify Novadontics with respect to the full amount of taxes due together with applicable interest and penalties. If Licensee is required to withhold any tax from any payment, then the amount of the payment will be automatically increased to totally offset such tax so that the amount remitted to Novadontics, net of all taxes, equals the amount invoiced or otherwise due. This Section shall not apply to taxes based on Novadontics’s net income.
7. Compliance with Applicable Laws
7.1 General. With respect to Licensee Data, Licensee shall be responsible for compliance with all applicable United States Federal and State, local, and foreign laws and regulations, including but not limited to (i) any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, and the sending of electronic marketing messages, including the General Data Protection Regulation (GDPR), the Telephone Consumer Protection Act (TCPA), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), the Children’s Online Privacy Protection Act, and the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (HIPAA), and the sending of SMS and/or MMS text messages (including but not limited to the TCPA, Federal Trade Commission and Federal Communications Commission rules, the National DNC list registry rules, and various state laws, rules, and regulations that place restrictions on certain types of phone calls and text messages); and (ii) laws and regulations that apply to commerce, including the Federal Trade Commission Act, Fair Credit Reporting Act, and Equal Credit Opportunity Act.
7.2 Email and Electronic Messaging. Licensee may use the Cloud Programs to send email and other electronic messages (“Messages”) to patients and other recipients. Licensee is solely responsible for the content of all Messages sent through the Cloud Programs and for ensuring that its use of the Cloud Programs for electronic communications complies with all applicable federal, state, and local laws, regulations, and industry requirements.
(a) Permission-Based Messaging. As a condition of using the Cloud Programs, Licensee agrees to send marketing or promotional Messages only to recipients who have provided appropriate consent or permission to receive such Messages or with whom Licensee otherwise has a lawful basis to communicate. This permission-based messaging requirement is a Novadontics platform policy and applies regardless of whether applicable law would otherwise permit a particular Message to be sent without prior consent.
(b) Compliance with Messaging Laws. Licensee is solely responsible for compliance with all laws and regulations applicable to its Messages, including, where applicable, the CAN-SPAM Act, the Telephone Consumer Protection Act (“TCPA”), and other federal, state, and local laws governing electronic communications, advertising, privacy, and marketing. Licensee shall ensure that Messages contain all disclosures, sender identification, physical address information, consent, and opt-out or unsubscribe mechanisms required by applicable law.
(c) Opt-Out Requests. Licensee shall honor all applicable unsubscribe, revocation-of-consent, and opt-out requests within the time required by applicable law and shall not knowingly send marketing or promotional Messages to recipients who have opted out or otherwise revoked applicable consent. Licensee is responsible for maintaining appropriate records of recipient consent and opt-out requests where required by applicable law.
(d) Responsibility for Messages. Licensee shall be deemed the sender or initiator of Messages transmitted by Licensee through the Cloud Programs to the extent provided by applicable law and shall be solely responsible for the content, recipients, timing, and legal compliance of such Messages. Licensee shall not use the Cloud Programs to send unlawful, fraudulent, deceptive, misleading, abusive, harassing, or otherwise prohibited communications.
(e) Recipient Information. Licensee represents and warrants that any contact information, including email addresses and telephone numbers, uploaded to or used through the Cloud Programs has been lawfully obtained and may be used by Licensee for the intended communications in accordance with applicable law.
(f) Suspension of Messaging Services. Novadontics reserves the right to suspend or restrict Licensee’s access to electronic messaging functionality if Novadontics reasonably determines that Licensee’s use violates this Section, applicable law, or applicable messaging-provider requirements, or creates a material risk to the security, reputation, or operation of the Cloud Programs or Novadontics’s messaging services.
7.3 Consent. In addition, Licensee represents and warrants that Licensee has obtained and/or will obtain prior express consent to contact each wireless phone number Licensee has delivered to and/or will deliver to Novadontics (the “Recipient”) in connection with the provision of any Services and the intended Recipient is the current subscriber to, or the non-subscriber customary user of, the wireless phone number. If the Messages are initiated to induce the purchase of goods or services or to solicit a charitable contribution (“Solicitations”), Licensee represents and warrants that: (a) Licensee has incorporated an interactive opt-out mechanism; and (b) Licensee has, unless an exemption applies, obtained from the Recipient of any Solicitation, an express written agreement that meets the requirements of all applicable laws, including, but not limited to those set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule and Section 64.1200(f)(8) of the FCC’s Telephone Consumer Protection Act Rules. Upon request, Licensee shall provide reasonable proof of compliance with the provisions set forth in this Section and Novadontics shall have no obligation to provide Services where Novadontics reasonably believes that Licensee has not so complied. The parties agree that, where Novadontics reasonably believes Licensee may not have complied with the provisions of this Section or with all laws, rules and regulations, Novadontics may, at its option (i) scrub all numbers against any appropriate database deemed necessary to remove all wireless phone numbers and promptly notify Licensee of such action, (ii) insert an interactive opt-out mechanism and pass the resulting data to Licensee, and/or (iii) temporarily suspend Services related to the compliance concern.
8. General Terms
8.1 Nondisclosure. By virtue of the Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”).
A. Confidential Information shall mean all non-public information disclosed by a party to the other party, in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, or that is of value to a party, including the existence of and the terms of this Agreement. Novadontics Intellectual Property shall be the exclusive proprietary information of Novadontics.
B. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) 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; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party as evidenced by that party’s written records.
C. During the Term of the Agreement and for a period of two years after its termination or expiration, each party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind but in no event less than reasonable care not to disclose or use any Confidential Information of the other party for any purpose outside the scope of this Agreement, (ii) use any Confidential Information of the other party solely to perform this Agreement or exercise rights under it, and (iii) limit access to Confidential Information of the other party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by obligations to protect the confidentiality of information that are no less stringent than those in this Agreement.
D. In the event that either party is requested or required for the purposes of legal, administrative, or arbitration to disclose any Confidential Information, the party receiving such disclosure request may disclose such Confidential Information provided it provides the other party within 48 hours with written notice of any such request or requirement so that such party may seek an appropriate protective order or other relief.
8.2 Trademarks. Except for linking to Novadontics web sites, Licensee may not use any Novadontics logo or trademark, whether or not such mark(s) are registered, without prior written approval from Novadontics. This includes use on printed materials of any kind as well as electronic mediums such as internet web pages or email. Furthermore, the use of the Novadontics name (or any derivative thereof) in Licensee’s URL, Business Name, or the names of any add-on products or services Licensee may be offering independent of Novadontics is strictly prohibited. Additionally, using the Novadontics name in paid targeted keyword advertising campaigns on search engines is also prohibited. Novadontics may use the Licensee’s name as part of a general list of customers and may refer to Licensee as a user of the Cloud Programs in its advertising, marketing and promotional materials.
8.3 Governing Law and Dispute Resolution; Equitable Relief. The Agreement, and all matters arising out of or relating to the Agreement, shall be governed by the laws of the State of California, without giving effect to principles regarding conflicts of laws. Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Diego, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. The parties agree that any arbitration shall be conducted solely on an individual basis and not on a class, collective, consolidated, or representative basis. Neither party shall have the right to participate in or bring any dispute, claim, or controversy as a class, collective, consolidated, or representative action in arbitration. To the fullest extent permitted by applicable law, each party knowingly and voluntarily waives any right to a trial by jury with respect to any dispute, claim, or controversy arising out of or relating to the Agreement that is not required to be resolved by arbitration.
This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration, or for injunctive or other equitable relief to restrain a breach or threat of breach, of intellectual property rights, confidentiality protection, or other breach or violation of rights for which injunctive or equitable relief is appropriate.
8.4 Notice. Licensee agrees to notify Novadontics of any changes to Licensee’s business address, business contact, and support contact within ten (10) days of any change thereto. All notices required or permitted hereunder shall be given in writing or as specifically set forth in the applicable section of the Agreement. To expedite order processing, Licensee agrees that Novadontics may treat documents emailed or faxed by Licensee to Novadontics as original documents; nevertheless, either party may require the other to exchange original signed documents to evidence an order for Cloud Programs or for Services. This Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as an original instrument.
8.5 LIMITATION OF LIABILITY. EXCEPT IN INSTANCES WHERE THE LICENSEE VIOLATES ITS OBLIGATIONS UNDER SECTION 2, 7 OR 8.1 OF THE AGREEMENT, IN WHICH CASE ITS LIABILITY TO NOVADONTICS SHALL NOT BE LIMITED, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, COVER, PUNITIVE OR OTHER DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR OTHER, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. NOVADONTICS’S MAXIMUM LIABILITY TO LICENSEE UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY LICENSEE DURING THE MOST RECENT TWO (2) MONTH PERIOD BEFORE THE EVENT GIVING RISE TO THE CLAIM. The provisions of the Agreement allocate the risks between Novadontics and Licensee. The parties agree that Novadontics’s pricing and other terms and conditions of the Agreement reflect the allocation of risk and the limitation of liability specified herein.
8.6. U.S. Government and HIPAA. The Cloud Programs and accompanying documentation are commercial computer software and documentation developed exclusively at private expense and in all respects are proprietary data belonging to Novadontics. If the Cloud Programs and accompanying documentation are used under the terms of a Department of Defense or civilian agency contract, use, reproduction and disclosure of such software and documentation by the Government is subject to the restrictions set forth in the Agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively. The HIPAA Business Associate Agreement Addendum attached hereto as Exhibit A is incorporated into this TOS by reference.
8.7 Other Terms. In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect. The waiver by either party of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of Novadontics’ Intellectual Property Rights, no action, regardless of form, arising out of the Agreement may be brought by either party more than one year after the cause of action has accrued. The Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of the Agreement. Novadontics may assign this Agreement or any rights or obligations under it. Licensee may not assign the Agreement or any rights or obligations hereunder without prior written consent of Novadontics, which consent shall not be unreasonably withheld or delayed (any such assignment without prior consent shall be void). Either party may assign this Agreement to an affiliate or to a successor entity pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets, business or ownership interests. Novadontics may modify the terms of the Agreement between the parties, including these Terms of Service and any incorporated Order Form(s) or Subscription and Services Agreements upon written notice, e-mail or otherwise, to Licensee, which may be in the form of an electronic posting on the Licensee’s Cloud Programs. Continuing use of Cloud Programs by Licensee shall constitute assent to these terms and conditions in this Agreement. It is expressly agreed that the terms of the Agreement and any Order Form shall supersede the terms in any Licensee purchase order or other ordering document. In the case of conflict or inconsistency among the terms of the Order Form and TOS, the order of precedence for conflict resolution in descending order shall be as follows: (a) any amendment or change order to the Order Form and TOS; (b) the Order Form; (c) the TOS and (d) any Exhibits or ancillary documents to the Order Form and TOS.
Except as expressly provided in the Agreement, nothing in the Agreement is intended to confer upon any person or entity other than Novadontics and Licensee, and their respective permitted successors and assigns, any legal or equitable right, benefit, or remedy of any nature whatsoever.
8.8 Force Majeure. Except with respect to failure to pay any amount due under this Agreement, nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party (“Force Majeure Event”).
8.9 Regulatory Limitations. The Services are provided in accordance with applicable regulatory requirements in the United States of America. Licensee shall comply with all applicable United States, foreign and local laws and regulations, including, without limitation, export control laws and regulations of the U.S. Export Administration. Licensee further agrees to indemnify and hold Novadontics harmless from any and all governmental and/or regulatory claims made by governments including and other than the United States of America that may arise should Licensee use or access the Services outside of the United States of America or should Licensee use or access the Services for citizens or residents who have citizenship or residency outside the United States.
Licensee shall not access, use, export, re-export, or permit access to the Cloud Programs or Services in violation of applicable United States sanctions, embargoes, or export-control laws or regulations. Licensee represents and warrants that neither Licensee nor, to Licensee’s knowledge, any person authorized by Licensee to access the Cloud Programs is prohibited from receiving the Cloud Programs or Services under applicable United States sanctions or export-control laws.
8.10 No Agency. The Licensee and Novadontics are independent contractors and neither party is the legal representative, agent, joint venturer, partner, franchisor, franchisee or employee of the other party for any purpose whatsoever. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever.
8.11 Exhibit B. Exhibit B, ADA CDT Addendum, attached hereto, applies only to the use of any Cloud Programs that include access to the master database of the American Dental Association (ADA) Code on Dental Procedures and Nomenclature Codes in electronic form (“CDT”) and is required by the ADA.
8.12 Feedback and Suggestions. If Licensee, its Providers, employees, contractors, or other users provide Novadontics with any suggestions, ideas, recommendations, enhancement requests, feature requests, comments, or other feedback relating to the Cloud Programs or Services (“Feedback”), Novadontics may use, develop, reproduce, modify, incorporate, commercialize, and otherwise exploit such Feedback for any purpose without restriction, obligation, or compensation to Licensee or any other person. Licensee acknowledges that any improvements, modifications, enhancements, features, products, or services developed by or on behalf of Novadontics, whether or not based in whole or in part on Feedback, shall be owned exclusively by Novadontics. Feedback shall not include Licensee Data or Protected Health Information.
Exhibit A: HIPAA Business Associate Agreement Addendum
This HIPAA BUSINESS ASSOCIATE AGREEMENT ADDENDUM (the “BAA Addendum”), by and between Novadontics (hereinafter referred to as “Business Associate”) and the above-referenced Licensee (hereinafter referred to as “Covered Entity”), is hereby incorporated into the TOS, specifically by Section 8.6 thereof, and is effective as of the Effective Date of the Agreement.
RECITALS
1. Covered Entity and Business Associate are parties to one or more agreements (each such agreement, a “Covered Contract,” and collectively, the “Agreement”) pursuant to which Business Associate provides certain services to Covered Entity, and, in connection with those services, Covered Entity discloses to Business Associate certain health information (the “Protected Health Information” as defined in 45 CFR 160.103 that is subject to protection under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act, and certain regulations promulgated by the U.S. Department of Health and Human Services to implement certain provisions of HIPAA (herein “HIPAA Regulations” found at 45 CFR Parts 160-164), all as may be amended from time to time.
2. Business Associate, as a recipient of Protected Health Information from Covered Entity, is a “Business Associate” as that term is defined in the HIPAA Regulations.
3. Pursuant to the HIPAA Regulations, all Business Associates of the Covered Entity must, as a condition of receiving Protected Health Information in the course of doing business with Covered Entity, agree in writing to certain mandatory provisions regarding, among other things, the use and disclosure of Protected Health Information.
4. The purpose of this Addendum is to satisfy the requirements of the HIPAA Regulations, including, but not limited to, 45 CFR §164.504(e), as the same may be amended from time to time.
OBLIGATIONS OF THE PARTIES
I. Definitions
Catch-all definition: The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use. Specific definitions: (a) Business Associate. “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 agreement, shall mean Novadontics. (b) Covered Entity. “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 agreement, shall mean the Licensee named on one or more order forms or Subscription Agreements or Service Agreements. (c) HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
II. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE
Business Associate agrees to:
(a) Not use or disclose protected health information other than as permitted or required by the Agreement or as required or permitted by law;
(b) Use appropriate administrative, physical, and technical safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information, to prevent the use or disclosure of Protected Health Information other than as provided for by the Agreement. Access to Business Associate’s computer networks, systems, and electronic Protected Health Information shall be controlled through user-specific access credentials and other authentication and security measures implemented by Business Associate, which may include multi-factor authentication and role-based access controls.
Covered Entity is responsible for appropriately administering and managing its authorized users, including assigning appropriate access permissions, maintaining the confidentiality of user credentials, preventing credential sharing, promptly modifying or deactivating access when a user’s authorization or employment changes or ends, and using security features made available by Business Associate as required or enabled.
Business Associate shall not be responsible for unauthorized access, use, or disclosure resulting from Covered Entity’s failure to reasonably safeguard its Access Credentials, appropriately administer its authorized users and permissions, or comply with the security requirements of the Agreement, except to the extent such unauthorized access, use, or disclosure results from Business Associate’s failure to comply with its obligations under this BAA Addendum or applicable law.
(c) Report to Covered Entity any use or disclosure of Protected Health Information not provided for by the Agreement of which Business Associate becomes aware, including any Breach of Unsecured Protected Health Information as required by 45 CFR § 164.410, and any Security Incident of which Business Associate becomes aware.
Business Associate shall notify Covered Entity of any Breach of Unsecured Protected Health Information without unreasonable delay and, in any event, no later than ten (10) business days following discovery of the Breach. Such notification shall include, to the extent known and available at the time of notification, the identification of each individual whose Unsecured Protected Health Information has been, or is reasonably believed to have been, accessed, acquired, used, or disclosed as a result of the Breach, together with any other information reasonably available to Business Associate that Covered Entity is required to include in notifications under applicable law.
Business Associate shall not delay the initial notification for the purpose of completing its investigation or obtaining all information relating to the Breach and shall provide additional relevant information to Covered Entity promptly as such information becomes available.
Business Associate shall also report to Covered Entity any material Security Incident involving electronic Protected Health Information without unreasonable delay after Business Associate becomes aware of the Security Incident. Unsuccessful attempts or activities that do not result in unauthorized access, use, disclosure, modification, or destruction of Protected Health Information or material interference with system operations, including routine unsuccessful log-in attempts, network scans, pings, denial-of-service attempts, and other similar events, need not be separately reported unless otherwise required by applicable law.
(d) As timely as reasonably possible, and 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 protected health information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;
(e) To the extent Business Associate maintains any protected health information in a designated record set, make available protected health information in a designated record set to the Covered Entity as necessary to enable Covered Entity to meet its obligations under 45 CFR 164.524;
(f) To the extent Business Associate maintains any protected health information in a designated record set, make any amendment(s) to protected health information in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to enable Covered Entity to meet its obligations under 45 CFR 164.526;
(g) Maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to enable Covered Entity to satisfy its obligations under 45 CFR 164.528;
(h) To the extent the 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 the Covered Entity in the performance of such obligation(s); and
(i) Make its internal practices, books, and records available to the Secretary of HHS for purposes of determining compliance with the HIPAA Rules.
III. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE
(a) Covered Entity and Business Associate agree that Business Associate may disclose protected health information to other business associates of Covered Entity for Business Associate’s performance of services contemplated in the Agreements at Covered Entity’s direction, provided that such other business associates have entered into agreements imposing the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information. In addition, Business Associate may use de-identified information as set forth in Section 3.4 of the Agreement.
(b) Business Associate may use or disclose protected health information as required or permitted by law.
(c) Business Associate agrees to make uses and disclosures consistent with Covered Entity’s minimum necessary policies and procedures. Business Associate will refer any requests for protected health information directly to Covered Entity for processing and resolution in accordance with this BAA Addendum Section IV(d).
(d) Business Associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity. However, Business Associate may use or disclose protected health information for its own management and administration and legal responsibilities as set forth in paragraphs (e), (f), or (g) below.
(e) Business Associate may use protected health information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
(f) Business Associate may disclose protected health information for the proper management and administration of Business Associate or to carry out the legal responsibilities of the 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 or permitted 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.
(g) In addition to its rights under Agreement Section 3.4, Business Associate may provide data aggregation services relating to the health care operations of the Covered Entity.
IV. PROVISIONS FOR COVERED ENTITY TO INFORM BUSINESS ASSOCIATE OF PRIVACY PRACTICES AND RESTRICTIONS
(a) 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 protected health information.
(b) 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 protected health information, to the extent that such changes may affect Business Associate’s use or disclosure of protected health information.
(c) Covered Entity shall notify Business Associate of any restriction on the use or disclosure of protected health information 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 protected health information.
(d) Covered Entity will be solely responsible for obtaining from its customers/patients all authorizations relating to the disclosure of Protected Health Information that are required under HIPAA to enable Business Associate and/or its subcontractors to facilitate communication between Covered Entity and its customers/patients and their family members and for Business Associate to otherwise perform its obligations under the Agreement. Covered Entity hereby represents and warrants to Business Associate that it will have received the necessary authorization from a customer/patient prior to the disclosure of such customer/patient’s Protected Health Information to Business Associate. Business Associate will forward to Covered Entity for processing and resolution any and all requests for information it may receive. Covered Entity will be solely responsible for responding to these requests.
(e) Covered Entity shall promptly notify Business Associate of any breach of any HIPAA obligations that may affect Business Associate’s use or disclosure of protected health information.
V. PERMISSIBLE REQUESTS BY COVERED ENTITY
Covered Entity shall not request Business Associate to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by Covered Entity. Provided, however, that the Business Associate may use or disclose protected health information for, data aggregation or management and administration and legal responsibilities of the Business Associate as may be set forth in the Agreement or as permitted by law.
VI. TERM AND TERMINATION
(a) Term. The Term of this BAA Addendum shall be effective as of the Effective Date of the Agreement, and shall terminate as set forth in the Agreement.
(b) Termination for Cause. Business Associate authorizes termination of this BAA Addendum according to terms and conditions set forth in the Agreement.
(c) Obligations of Business Associate Upon Termination.
Upon termination or expiration of this Agreement for any reason, Business Associate, with respect to Protected Health Information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
1) Retain Protected Health Information in accordance with the data retention provisions set forth in Section 4.4 of the Agreement, to the extent permitted by applicable law;
2) During the retention period, continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information to prevent any use or disclosure of Protected Health Information other than as permitted by this BAA Addendum, the Agreement, or applicable law;
3) Not use or disclose Protected Health Information retained by Business Associate following termination or expiration of the Agreement except as necessary to maintain, safeguard, return, or export such information to Covered Entity, for Business Associate’s proper management and administration or to carry out its legal responsibilities, or as otherwise required or permitted by applicable law;
4) Make Protected Health Information available to Covered Entity during the retention period in accordance with the applicable provisions of this BAA Addendum and the Agreement;
5) Upon expiration of the applicable retention period, return to Covered Entity or, if agreed to by Covered Entity, securely destroy the Protected Health Information that Business Associate continues to maintain in any form, except to the extent that continued retention is required by applicable law or return or destruction is otherwise not feasible; and
6) If Business Associate determines that return or destruction of any Protected Health Information is not feasible, continue to extend the protections of this BAA Addendum to such Protected Health Information for as long as Business Associate retains it and limit further uses and disclosures to those purposes that make return or destruction infeasible. Business Associate shall securely destroy such Protected Health Information when retention is no longer required and return or destruction becomes feasible.
(d) Survival. The obligations of Business Associate under this Section VI shall survive the termination of the BAA Addendum and the Agreement.
VII. MISCELLANEOUS
(a) Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
(b) Amendment. The Parties agree that Business Associate may amend this BAA Addendum as is necessary from time to time in its discretion for compliance with requirements of the HIPAA Rules and any other applicable law.
(c) Relationship of the Parties. Covered Entity and Business Associate agree that Business Associate’s services hereunder are being carried out as an independent contractor and not as an employee or agent of the Covered Entity.
(d) Any ambiguity in this BAA Addendum shall be resolved to comply with the HIPAA Regulations. There are no third-party beneficiaries to this BAA Addendum.
Exhibit B: ADA CDT Addendum
This ADA CDT ADDENDUM (the “CDT Addendum”), by and between Novadontics and the above-referenced Licensee, is hereby incorporated into the above Application Terms of Service and is effective as of the Effective Date of the Agreement. This CDT Addendum applies only to use of any Cloud Programs that include access to the master database of American Dental Association (ADA) Code on Dental Procedures and Nomenclature Codes in electronic form (“CDT”) and is required by the ADA. Licensee hereby acknowledges that:
1. Novadontics’s provision of updated versions of CDT is dependent upon Novadontics’ continuing contractual relations with the ADA;
2. Licensee’s use of CDT is non-transferable, non-exclusive, and for the sole purpose of internal use in the territory and language as designated in Licensee’s Agreement with Novadontics;
3. Licensee is prohibited from using CDT or information contained therein in any public computer based information system or public electronic bulletin board (including the Internet and World Wide Web) unless subject to the provisions of this CDT Addendum;
4. Licensee is prohibited from publishing, translating, or transferring possession of the CDT or a copy or portion of it;
5. Licensee is prohibited from creating derivative works based on CDT and selling, leasing or licensing it or otherwise making the CDT or any portion thereof available to any unauthorized party;
6. Licensee shall ensure that anyone who has authorized access to the Cloud Programs complies with the provisions of this CDT Addendum;
7. This product includes CDT which is commercial technical data and/or computer databases and/or commercial computer software and/or commercial computer software documentation, as applicable, which were developed exclusively at private expense by the American Dental Association, 21 East Chicago Ave., Chicago, IL 60611. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer databases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (June 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of FAR 52.227-14 (June 1987) and FAR 52.227-19 (June 1987), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
8. CDT is provided “as is” without any liability to Novadontics or the ADA, including, without limitation, no liability for consequential or special damages or lost profits for sequence, accuracy or completeness of data, or that it will meet Licensee’s requirements, and that Novadontics’s and ADA’s sole responsibility is to use reasonable efforts to obtain replacement CDT for Licensee in the event of defects; ADA disclaims any liability for any consequences due to use, misuse or interpretation of information contained or not contained in CDT.
9. This CDT Addendum shall terminate in the event of default under this CDT Addendum; and
10. In the event that a provision of this CDT Addendum is determined to violate any law or is unenforceable, the remainder of the CDT Addendum shall remain in full force and effect.
