“mConsent”, “Caretap”, “SRS Web Forms”, “HOOPOE” are the products of SRS Web Solutions Inc. SRS Web Solutions products/product refers to any of the above mention product. “You”, “Your”,“Business”, “practice”,”clinic” and “client” means party that SRS Web Solutions is providing services to.
Services: Subject to the terms and conditions set forth herein, during the Term (as defined below), Client hereby engages SRS, and SRS Web Solutions hereby agrees to be engaged, to perform for Client the Services of:
1. Order: Customer hereby authorizes SRS Web Solutions Inc to procure and deliver the products and services described in the Order. Customer may cancel this Order only with the written consent of SRS Web Solutions Inc and the payment of reasonable cancellation charges.
2. Payment: Payment in full is due on or before delivery unless otherwise expressly provided in the Order or in a separate written agreement between SRS Web Solutions Inc and Customer. In the event Customer accepts partial delivery, Customer shall make a corresponding partial payment. If Customer fails to make any payment when due, Customer will pay a late charge not to exceed the lesser of 1.5% per month of the late payment or the maximum lawful amount. Customer agrees to pay all shipping and handling charges and all taxes and other charges of any kind imposed by any governmental entity in respect of this Agreement. To secure payment of amounts due, Customer grants SRS Web Solutions Inc a purchase money security interest in all equipment described in the Order.
3. Business Purpose: Customer represents and warrants that Customer will use all products ordered from SRS Web Solutions Inc solely in the operation of its business (and not for any personal, household or family purpose), for the purpose intended, and at the permitted location(s).
4. Force Majeure: SRS Web Solutions Inc shall not be liable for failure to deliver or delays in delivery or performance due to causes beyond its reasonable control including without limitation delays in manufacture or transportation, acts of Customer or others acting for or on behalf of Customer, strikes or other labor difficulties, governmental controls or actions, acts of God or other casualties. In the event of such failure or delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of the failure or delay.
5. No Waiver: Any representation, affirmation of fact, course of dealing, usage of trade, promise or condition in connection with this Agreement not incorporated herein shall not be binding on either party. No waiver, alteration or modification of any of the provisions hereof shall be effective unless in writing and signed by a duly authorized representative of SRS Web Solutions Inc. Waiver by any party of strict performance of any provision of this Agreement will not be a waiver of or prejudice any party's right to require strict performance of the same provision in the future or of any other provision of this Agreement.
6. Identity of Customer: If the dentist or other individual who signed the Order (the "signer") operates his or her dental practice or business as a corporation, partnership or other legal entity, "Customer" as used in this Agreement means the legal entity. The signer shall be deemed to have signed the Order on behalf of that legal entity with the intention and authority to bind it.
7. DISCLAIMER OF LIABILITY: IN NO EVENT WILL SRS Web Solutions Inc BE LIABLE FOR ANY (A) LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, HOWEVER CAUSED, AND EVEN IF SRS Web Solutions Inc HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (B) CLAIMS MADE AGAINST SRS Web Solutions Inc MORE THAN TWO YEARS AFTER THE RELATED CAUSE OF ACTION AROSE.
8. Customer Obligations.
(a) Back-Up. Customer shall keep up-to-date backup copies of all data for recovery purposes. SRS Web Solutions Inc shall have no liability for any loss of data arising out of the provision of maintenance and support services to Customer, including losses arising from the installation of upgrades or error corrections provided by SRS Web Solutions Inc.
(b) Cooperation. Customer shall provide SRS Web Solutions Inc all data, information and cooperation SRS Web Solutions Inc deems necessary for the performance of SRS Web Solutions Inc's obligations under this Agreement. SRS Web Solutions Inc shall have no liability for any delay in the performance of SRS Web Solutions Inc's obligations resulting from Customer's failure to provide data or information or to cooperate.
(d) Compliance with Law. Customer shall comply with all laws and contractual obligations, including requirements of insurers, credit card issuers and other third party service providers, applicable to Customer's use of any product described in the Order. Such laws and obligations include, but are not limited to, state and federal statutes, rules and regulations governing record retention, billing error resolution, confidentiality, data privacy and security, and claims and payment processing; state Medicaid rules and regulations restricting access to and use of eligibility information; rules and regulations of the federal Department of Health and Human Services; and PCI DSS.
(e) Use in Accordance with Specifications. Customer shall use the products described in the Order in accordance with the operator and user guides and other manuals and technical information and specifications, whether in hard copy, electronic or other format, furnished by SRS Web Solutions Inc to Customer
(f) Indemnification. SRS Web Solutions Inc shall have no liability for Customer's failure to comply with its obligations under this Section 8. Customer shall defend, indemnify and hold harmless SRS Web Solutions Inc from and against any loss or damage, including attorneys' fees, resulting from Customer's breach or claimed breach of any such obligation.
9. Miscellaneous: This Agreement shall be governed by the laws of the state of Minnesota. This Agreement and any other written agreement between SRS Web Solutions Inc and Customer expressly referenced in this Agreement constitute the entire agreement between the parties as to the subject matter of this Agreement and supersede all other communications, oral or written. The invalidity of any term or provision of this Agreement will not affect the validity of any other provision. The section and paragraph headings of this Agreement are for the convenience of the reader only, and are not intended to act as a limitation of the scope or meaning of the sections and paragraphs themselves.
1. Nature of Rights. Customer is purchasing a license to use the software described on the Order. Customer is not purchasing the software. The provisions of this Schedule cover mConsent product, SRS Web Forms, HOOPOE, Caretap and Caretap EVV, SRS Web Solutions Inc and other SRS Web Solutions Inc proprietary software itemized on the Order, together with related documentation (collectively, the "SRS Web Solutions Inc Software"). Software covered by the Order that is not SRS Web Solutions Inc Software is licensed to Customer under the terms of the separate license agreement(s), if any, delivered to Customer with such software; it is not licensed to Customer by SRS Web Solutions Inc. Customer is deemed to accept the SRS Web Solutions Inc Software on delivery.
2. License; Fees. Subject to the terms of this SRS Web Solutions Inc Software License and the General Terms and Conditions attached to the Order ("this License Agreement"), SRS Web Solutions Inc grants Customer a limited, revocable, nonexclusive license to use the SRS Web Solutions Inc Software. Customer agrees to pay to SRS Web Solutions Inc the license fees and other charges in the amounts and at the times set forth on the Order or in a separate written agreement between Customer and SRS Web Solutions Inc.
3. Use Restrictions
(a) Nature of Use. Customer may not copy, distribute, adapt or prepare derivative works from, reverse engineer, disassemble, decompile, rent, lend, lease, sell, or otherwise transfer or disclose the SRS Web Solutions Inc Software or make the SRS Web Solutions Inc Software available to any third party, except as provided in Sections 4 and 5, below, and except that:
Customer may otherwise use the SRS Web Solutions Inc Software solely for internal professional purposes in Customer's own dental office(s). For example, Customer may not use the SRS Web Solutions Inc Software to provide consulting, time sharing, outsourcing, service bureau or similar services for or on behalf of any third party; and Customer may not without SRS Web Solutions Inc's prior written consent copy, display, or perform on the internet any SRS Products or mConsent product presentations or other content created by or contained in mConsent software. Except as provided above, use of the SRS Web Solutions Inc Software by any person or legal entity other than Customer is a breach of this Agreement. mConsent software may be installed and used solely on the apple provided any ipad device (ipad mini, ipad air, ipad pro). Customer will use its best efforts to protect the SRS Web Solutions Inc Software from unauthorized reproduction or use.
(b) Nature of License. Customer may use the SRS Web Solutions Inc Software at the site(s) for which Customer has purchased a license. To use any SRS Web Solutions Inc Software at more than one device, Customer must purchase a separate license for each device (ipad) or a multi-device license covering each device. Customer may not access the SRS Web Solutions Inc Software through a wide area network from multiple locations unless Customer purchases a separate license for each location or a multi-site and multi-device license covering each location.
4. Restrictions on Transfer. Customer may transfer its rights under this License Agreement to use the SRS Web Solutions Inc Software to a transferee of substantially all of Customer's assets if Customer has paid in full all license and other fees payable under this License Agreement, the transferee agrees to the terms of this License Agreement in a writing furnished to SRS Web Solutions Inc, and Customer retains no copy of the SRS Web Solutions Inc Software. Customer may not otherwise sublicense, assign, or transfer any of its rights to use the SRS Web Solutions Inc Software without the prior written consent of SRS Web Solutions Inc.
If Customer is a sole proprietor and not a legal entity, then employees of Customer may use the SRS Web Solutions Inc Software in the conduct of Customer's business on the terms of this Agreement.
5. Ownership. Customer acknowledges and agrees that SRS Web Solutions Inc and its licensors are the sole owners of all right, title, and interest in and to the SRS Web Solutions Inc Software, including all intellectual property rights, except for components distributed under open source licenses; this License Agreement confers on Customer no ownership interest or intellectual property rights in the SRS Web Solutions Inc Software; the SRS Web Solutions Inc Software is protected under United States, Canadian and other applicable copyright and intellectual property laws and international treaty provisions; and the SRS Web Solutions Inc Software has been developed at considerable time and expense to SRS Web Solutions Inc and its licensors and contains confidential and proprietary information not generally known. Customer acknowledges that any misuse of the SRS Web Solutions Inc Software or other breach of Section 3 or 4 of this License Agreement will cause irreparable harm to SRS Web Solutions Inc for which SRS Web Solutions Inc cannot be adequately compensated by damages. Consequently, Customer agrees that in addition to any other remedies available to SRS Web Solutions Inc, SRS Web Solutions Inc shall be entitled to seek injunctive or other equitable relief to prevent such breach or further breaches of this License Agreement. Customer shall not remove any copyright, trademark, or confidentiality notice from the SRS Web Solutions Inc Software
Hardware/ipad devices: Any hardware that is provided belongs to SRS Web Solutions, inc unless specified in written contract. The hardware is provided on lease and is due to be returned to SRS Web Solutions Inc when the contract is terminated. SRS Web Solutions Inc has full right to control the hardware remotely via internet or any available technology for any reason.
6. Updates. SRS Web Solutions Inc may from time to time make updates to the SRS Web Solutions Inc Software available to Customer. Unless accompanied by or expressly made subject to another license agreement, such updates are "SRS Web Solutions Inc Software" subject to the terms of this License Agreement.
7. Limited Warranty.
(a) Hardware. In some cases, SRS Web Solutions Inc may provide hardware, SRS Web Solutions Inc warrants to Customer that, for a period of thirty (30) days following delivery of the SRS Web Solutions Inc Software to Customer, the hardware (iPad/Tablet) containing the SRS Web Solutions Inc Software shall be free from material defects in materials and workmanship under normal use. If a material defect in such hardware appears during such period, Customer's sole and exclusive remedy and SRS Web Solutions Inc's sole liability under this warranty is the replacement of defective media. To receive a replacement, Customer must contact its local SRS Web Solutions Inc branch office during such thirty (30) day period.
8. Disclaimer of Warranty. THE EXPRESS, LIMITED WARRANTIES PROVIDED IN THE FOREGOING SECTION 8 OF THIS LICENSE AGREEMENT ARE THE ONLY WARRANTIES MADE BY SRS Web Solutions Inc WITH RESPECT TO THE SRS Web Solutions Inc SOFTWARE. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, OTHER THAN THE EXPRESS WARRANTIES IN SECTION 8 OF THIS LICENSE AGREEMENT, SRS Web Solutions Inc DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO ANY SOFTWARE FURNISHED TO CUSTOMER IN CONNECTION WITH THIS LICENSE AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE OR THAT THE SOFTWARE WILL OPERATE ERROR FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPUTER CODE.
9. Disclaimer of Liability. IN NO EVENT WILL SRS Web Solutions Inc BE LIABLE FOR ANY (A) LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, HOWEVER CAUSED, AND EVEN IF SRS Web Solutions Inc HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (B) CLAIMS MADE AGAINST SRS Web Solutions Inc MORE THAN TWO YEARS AFTER THE RELATED CAUSE OF ACTION AROSE. WITHOUT LIMITATION OF THE FOREGOING, SRS Web Solutions Inc SHALL HAVE NO LIABILITY FOR LOSS OF DATA HOWEVER CAUSED AND SRS Web Solutions Inc SHALL HAVE NO LIABILITY FOR DAMAGE CAUSED BY MALICIOUS SOFTWARE, AND WHETHER OR NOT PREVENTED OR PREVENTABLE BY ANTI-VIRUS OR INTRUSION PROTECTION SOFTWARE ACQUIRED FROM SRS Web Solutions Inc.
10. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS LICENSE AGREEMENT EXCEPT SECTION 11, SRS Web Solutions Inc'S CUMULATIVE LIABILITY UNDER THIS LICENSE AGREEMENT, INCLUDING WITHOUT LIMITATION IN RESPECT OF THE SRS Web Solutions Inc SOFTWARE OR THE PERFORMANCE OR NON-PERFORMANCE OF OR INABILITY TO USE THE SRS Web Solutions Inc SOFTWARE, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE LICENSE FEES PAID BY CUSTOMER TO SRS Web Solutions Inc FOR THE SRS Web Solutions Inc SOFTWARE.
(a) Third Party Infringement Claims. SRS Web Solutions Inc will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the SRS Web Solutions Inc Software directly infringes any United States copyright or misappropriates any trade secret recognized as such under the Minnesota Uniform Trade Secrets Act, and SRS Web Solutions Inc will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.
(b) Conditions. SRS Web Solutions Inc's obligations under the preceding paragraph with respect to an action are conditioned on (i) Customer notifying SRS Web Solutions Inc promptly in writing of such action, (ii) Customer giving SRS Web Solutions Inc sole control of the defense thereof and any related settlement negotiations, and (iii) Customer cooperating with SRS Web Solutions Inc in such defense (including, without limitation, by making available to SRS Web Solutions Inc all documents and information in Customer's possession or control that are relevant to the infringement or misappropriation claims, and by making Customer's personnel available to testify or consult with SRS Web Solutions Inc or its attorneys in connection with such defense).
(c) SRS Web Solutions Inc's Options. If the SRS Web Solutions Inc Software becomes, or in SRS Web Solutions Inc's opinion is likely to become, the subject of an infringement or misappropriation claim, SRS Web Solutions Inc may, at its option and expense, either (i) procure for Customer the right to continue using the SRS Web Solutions Inc Software, (ii) replace or modify the SRS Web Solutions Inc Software so that it becomes non-infringing, or (iii) terminate Customer's right to use the SRS Web Solutions Inc Software and give Customer a refund or credit for the license fees actually paid by Customer to SRS Web Solutions Inc for the infringing components of the SRS Web Solutions Inc Software, less a reasonable allowance for the period of time Customer has used the SRS Web Solutions Inc Software.
(d) Exclusions. Notwithstanding the foregoing, SRS Web Solutions Inc will have no obligation or otherwise with respect to any infringement or misappropriation claim based upon (i) any use of the SRS Web Solutions Inc Software not in accordance with this License Agreement or any documentation for the SRS Web Solutions Inc Software or for purposes not intended by SRS Web Solutions Inc, (ii) any use of the SRS Web Solutions Inc Software in combination with other products, equipment, software or data not supplied by SRS Web Solutions Inc, (iii) any use of any release of the SRS Web Solutions Inc Software other than the most current release made available to Customer, or (iv) any modification of the SRS Web Solutions Inc Software made by any person other than SRS Web Solutions Inc.
(e) Entire Liability. This section states SRS Web Solutions Inc's entire liability and Customer's sole and exclusive remedy for infringement and misappropriation claims and actions.
13. Term and Termination. The license granted under this License Agreement is effective until terminated. Customer may terminate the license at any time by discontinuing use of the SRS Web Solutions Inc Software. SRS Web Solutions Inc may terminate the license EFFECTIVE IMMEDIATELY if Customer fails to pay any license fee or other amounts owing to SRS Web Solutions Inc in respect of the SRS Web Solutions Inc Software or fails to comply with any term of this License Agreement. Upon termination of the license for any reason, Customer shall return all copies of the SRS Web Solutions Inc Software and hardware to SRS Web Solutions Inc upon its request, remove all copies of any SRS Web Solutions Inc Software from its hardware (ipad/mobile devices), and demonstrate or certify to SRS Web Solutions Inc's satisfaction that it has done so. All provisions of this License Agreement relating to disclaimers of warranties, limitation of liability, remedies, or damages, and SRS Web Solutions Inc's proprietary rights shall survive termination of the license.
14. Government License Rights. The SRS Web Solutions Inc Software’s are a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government licensees and end users acquire the SRS Web Solutions Inc Software with only those rights set forth herein. Contractor/manufacturer is SRS Web Solutions Inc.
15. Software Maintenance Plans. If Customer has purchased support services through the affiliate sellers, SRS Web Solutions Inc will provide reasonable technical support by telephone (612-217-4838) or email during normal business hours. If Customer has not enrolled in the applicable plan and requests support from SRS Web Solutions Inc, Customer agrees to pay SRS Web Solutions Inc's then standard hourly service fees. Hours and other terms of service in effect from time to time are described at www.srswebsolutions.com. SRS Web Solutions Inc may modify such terms from time to time without notice. Service calls may be recorded for quality assurance purposes. According to its pricing policies in effect from time to time, SRS Web Solutions Inc may make certain software and updates available free of license fees to customers who are continuously enrolled in the SRS Web Solutions Inc software maintenance plans for such software. Software and updates are not generally free of license fees for customers not continuously on the SRS Web Solutions Inc software maintenance plans.
16. Customer Responsibility for Data Security and Backup. Customer is solely responsible for the security and backup of its data and for the accuracy and completeness of all data entered by Customer in the process of using the Software. SRS Web Solutions Inc strongly encourages Customer to (a) protect its network from unauthorized access, (b) archive and verify its data on a daily basis, (c) keep all software current with the latest security patches and updates, and (d) employ up-to-date encryption technology or other appropriate means to protect the security of its data while transmitted, electronically or otherwise, to SRS Web Solutions Inc. SRS Web Solutions Inc shall have no liability for any unauthorized interception or disclosure of Customer data while transmitted by Customer to SRS Web Solutions Inc.
17. Client Consent. Customer represents and warrants to SRS Web Solutions Inc that it has obtained and shall obtain all consents required by law or contract from clients of Customer whose health, financial or other personal information may be disclosed to SRS Web Solutions Inc in the course of Customer's use, or SRS Web Solutions Inc's installation, maintenance or support of, the Software. Customer shall defend, indemnify and hold harmless SRS Web Solutions Inc from and against any loss or damage resulting from Customer's failure, or claimed failure, to obtain any such consent.