Henry Schein Practice Solutions
Contents
1. State and Federal laws as well as ethical and licensure requirements of your profession may impose obligations with respect to patient confidentiality that may limit your ability to make use of certain services or to transmit certain information to third parties You represent and warrant that you will at all times during the term of this Software EULA and thereafter comply with all laws directly or indirectly applicable to you or your organization that may now or hereafter govern the gathering use transmission processing receipt reporting disclosure maintenance and storage of patient information and use your best efforts to cause all persons or entities under your direction or control to comply with such laws You are at all times during the term of this Software EULA and thereafter solely responsible for obtaining and maintaining or verifying that you or your organization has obtained and is maintaining all patient consents and all other legally necessary consents or permissions required or advisable to disclose process retrieve transmit and view patient information you transmit and store in connection with the Servers and the associated services You agree that HSPS our licensors and all other persons or entities involved in the operation of services provided through the Servers have the right to monitor retrieve store and use patient information in connection with the operation of such services and are acting on your behalf in tran2. shall mean the user s manual s and other materials whether in printed or electronic form accompanying the Software and any modified version thereof provided by HSPS to you The term Product shall mean the Software Documentation and HSPS hardware components This license provides you with the right to install the Software on a single system at a single site or location You may not use the Software on multiple systems unless you have paid the multi user license fee You may not use the Software at more than 1 site or location or with more than 1 installed instance of the practice management database unless you have paid for multiple site licenses Please note that a multi user license of DENTRIX or Easy Dental limits you to installing the Software on a total of 10 systems at the same site or location with 1 installed database instance after which additional licensing fees apply HSPS is not responsible for the licensing of any imaging software including DENTRIX Image DENTRIX Clarity or Easy Image which are as of 1 3 2007 owned by Dexis nor the way in which those software packages interoperate with HSPS Software YOU MAY NOT RENT LOAN LEASE SUBLICENSE DISASSEMBLE DECOMPILE OR OTHERWISE REVERSE ENGINEER OR ATTEMPT TO DECONSTRUCT OR DISCOVER ANY SOURCE CODE OR UNDERLYING IDEAS OR ALGORITHMS OF THE SOFTWARE BY ANY MEANS WHATSOEVER YOU MAY NOT USE COPY MODIFY MERGE OR TRANSFER COPIES OF THE SOFTWARE INCLUDING PREVIOUS VERSIONS EXCEPT A
3. b SCOPE OF OFFER HSPS reserves the right to change alter or discontinue any services or the pricing of any services at any time with prior written notification c SECURED ACCESS The Servers require a user ID and password to access and use it Certain services may require additional codes You are solely responsible for maintaining the strict confidentiality of the user IDs passwords and codes collectively hereinafter IDs HSPS assigns to you and those assigned to your patients and for ensuring that only authorized personnel use appropriate IDs and any charges damages or losses that may be incurred or suffered as a result of your failure to do so are your sole responsibility HSPS is not liable for any harm related to the theft of your IDs or any of your patients IDs your or any patients disclosure of your IDs or any patients IDs or your or any patients authorization to allow another person or entity to access and use the Servers using your IDs or any patients IDs You agree to immediately notify us of any unauthorized use of your IDs or any patients IDs or other need to deactivate an ID due to security concerns d SECURITY AND SECURE MAIL HSPS will endeavor to use appropriate security measures to protect the confidentiality of patient information on the Servers HSPS will use encryption technology e g 3 0 Secure Socket Layer protocol with 128 bit public key encryption technology in arranging for the transmission of pati
4. As a result in order for you to realize the maximum benefit of HSPS products and services you may be required to upgrade your existing computer hardware network infrastructure or operating systems from time to time in order to access or use the new features implemented in the hardware and software products and services sold by HSPS HSPS is not responsible for costs or services associated with installations upgrades or evaluations in any respect You may use HSPS phone support resources for installation and troubleshooting of HSPS hardware Software by purchasing a Customer Service Plan as defined in the Support Terms and Conditions or via a pay per minute option b For the avoidance of doubt and as more particularly set forth in Section 10 Upgrades of the EULA after upgrading any HSPS Software you may no longer use the previous product that formed the basis for the upgrade eligibility 18 CONFIDENTIAL INFORMATION You agree that materials of a confidential nature including but not limited to business technical financial or any other information disclosed by HSPS to you pursuant to the Agreement are the confidential information Confidential Information of HSPS You agree that you shall not use the Confidential Information of HSPS for any purpose not expressly permitted by the Agreement and that you shall hold in confidence and shall not disclose to any third party such Confidential Information or the material terms of the Agreement and
5. disclosure by the Government is subject to restrictions as set forth in subparagraph c 1 ii of the Rights in Technical Data and Computer Software clause at DFARS 252 227 7013 subparagraph c 1 and 2 of the Commercial Computer Software Restricted Rights clause at 48 FAR 52 227 19 as applicable 14 EXPORT RESTRICTIONS You acknowledge that the Product or any portion thereof may be subject to U S export restrictions You agree to comply with all applicable international and national laws that apply to the Product or any portion thereof including the U S Export Administration Regulations as well as destination and all other restrictions issued by U S and other governments Hardware Disclaimer Notice Computer hardware operating systems networks and any associated warranties are your sole responsibility HSPS assumes no responsibility or liability for installation maintenance support warranties or services and you are required to purchase these Products or services as desired HSPS publishes System Requirements which should be referenced prior to purchasing hardware or software in order to achieve acceptable software function and performance Henry Schein Practice Solutions LIMITED HARDWARE WARRANTY HSPS LIMITED HARDWARE WARRANTY HSPS warrants under this Limited Hardware Warranty Limited Warranty also known as the manufacturers warranty that the hardware including DENTRIX Identity Keyboards DENTRIX Identity Finger Scann
6. of service or for 3 years if selected beginning as soon as your 30 days of initial free support has passed provided free support is committed to with the original product order Your purchase of a Customer Service Plan is a binding contract between you and HSPS regardless of whether you choose to pay for the subscription in 1 transaction or on a monthly basis Should you wish to cancel your Customer Service Plan at any time prior to the end of its term you will be required to fulfill the monetary balance of the contract Your Customer Service Plan and these Support Terms and Conditions thereunder shall automatically terminate when the license for the HSPS product terminates In addition HSPS may terminate the Customer Service Plan and these Support Terms and Conditions thereunder at any time upon delivery of written notice of such termination to you in the event that you breach any material provision of the Terms and Conditions or Software EULA and fail to cure such breach within 30 days after HSPS delivers notice to you or in the case of a breach of your payment obligations within 10 days after delivery of such notice Upon termination of the Customer Service Plan HSPS shall invoice you for all fees due for the entire term and you shall pay such amount immediately upon receipt of invoice 2 RENEWAL These Support Terms and Conditions and the Customer Service Plan automatically renew at the end of each term of the plan for an additional 1 year term
7. shall similarly bind your personnel in writing You shall not be obligated under this Section 18 with respect to information that you can document if it a Is or has become readily publicly available without restriction through no fault of you or your personnel b Is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information or c Was rightfully in your possession without restriction prior to its disclosure by HSPS 19 MISCELLANEOUS a HSPS assumes no responsibility for and does not warrant installation work of third parties nor assumes responsibility for overseeing or supervising the work of persons other than its own agents or personnel acting within the scope of agency or employment b Severability The invalidity or illegality of all or part of any of the Agreement shall not invalidate the remainder of such Agreement c Choice of Law and Consent to Jurisdiction The Agreement shall be construed and governed by the laws of the State of New York and the United States of America including United States copyright laws The Federal and state courts resident in New York New York shall have exclusive jurisdiction to adjudicate any dispute arising under or out of the Agreement Should you have any questions concerning this Agreement or if you desire to contact HSPS for any reason please write to HSPS 727 E Utah Valley Drive Suite 500 American Fork Utah 84
8. the third party manufacturer UNLESS OTHERWISE SPECIFICALLY AGREED TO IN WRITING BY HSPS HSPS IS NOT RESPONSIBLE FOR AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE PERFORMANCE QUALITY OR RELIABILITY OF THIRD PARTY PRODUCTS OR YOUR CHOICE OF A PARTICULAR MANUFACTURER FROM WHICH TO PURCHASE THIRD PARTY PRODUCTS AND NO CLAIM YOU MAY HAVE WITH RESPECT TO THIRD PARTY PRODUCTS PURCHASED FROM HSPS SHALL AFFECT YOUR OBLIGATIONS INCLUDING WITHOUT LIMITATION YOUR PAYMENT OBLIGATIONS TO HSPS FOR THE SOFTWARE HARDWARE AND OR SUPPORT MAINTENANCE AND OTHER SERVICES INCLUDING PROFESSIONAL SERVICES FURNISHED BY HSPS TO YOU HEREUNDER YOU ACKNOWLEDGE THAT ANY CLAIMS YOU MAY HAVE IN CONNECTION WITH THIRD PARTY PRODUCTS AND ANY REMEDIES FOR SUCH CLAIMS SHALL BE BROUGHT SOLELY AGAINST OR SOUGHT SOLELY FROM THE MANUFACTURERS OF SUCH THIRD PARTY PRODUCTS 4 QUOTATIONS Oral quotations terminate on the day made Written quotations terminate 30 days after date of issuance unless otherwise indicated on the signed and approved quote sheet All quotations including but not limited to price information published in catalogs bulletins or price lists are subject to revision prior to the acceptance of the order by HSPS 5 PRICE MODIFICATION After the acceptance of an order by HSPS any price modifications shall not be effective unless accepted in writing by HSPS or its duly authorized representative Acceptance may be conditioned upon your acceptance of interve
9. your request shall extend delivery schedules HSPS shall not be liable for any penalty or damages liquidated or otherwise for shipment or deliveries which are delayed due to any reason whatsoever d HSPS shall use commercially reasonable efforts to deliver on the date specified on the purchase order or otherwise agreed to in writing between you and HSPS but shall not be responsible for delays beyond its control nor shall such delays be considered a breach by HSPS hereunder 12 DEFAULT SOLE REMEDY Except as otherwise specifically set forth in the Terms and Conditions Limited Hardware Warranty or Software EULA in the event of any default by HSPS hereunder then you shall upon demand be entitled to the return of your down payment made hereunder as your sole and exclusive remedy 13 DAMAGE OR LOST SHIPMENTS a Goods are shipped FOB shipping point only When goods have been delivered to a carrier for shipment the risk of loss passes to you and HSPS s responsibility for delivery ends but HSPS agrees to furnish duplicate bills of lading and otherwise render reasonable assistance in making claims for damages against the carrier b Packages should be examined carefully before being accepted from the carrier HSPS assumes no responsibility for unconcealed damages after having received in good order receipts from a carrier at shipping point and all loss damage and delay in transit are at your risk c You are responsible to inspect the cont
10. 003 or call 801 763 9300 d Costs relating to the following activities shall be your sole responsibility and ARE NOT INCLUDED IN THE PURCHASE PRICE i The disconnecting and or reinstalling of your existing equipment ii Changes or additions in plumbing electrical or carpentry work iii Necessary governmental inspections approvals and fees iv Union intervention in installation or delivery of equipment v Insurance covering the equipment against the above risks which you hereby agree to maintain with such insurers in such form and in such amounts as shall from time to time be reasonably required by HSPS vi Any related costs associated with installation configuration upgrade modification customization etc of computer software or hardware vii Any costs associated with HSPS visits on site for any reason e All purchased training must be completed within 12 months of the date of purchase otherwise payment for training services are forfeited and are non refundable Certified HSPS trainers are independent contractors trained by HSPS HSPS warrants only that the trainer has passed the necessary requirements for certification and HSPS has certified such trainers to teach f The Agreement when accepted by HSPS by signature of 1 of its duly authorized officers managers shall constitute the entire agreement between the parties and shall supersede all prior and contemporaneous written or oral negotiations warranties representations and a
11. E WITHOUT INTERRUPTION OR ERROR FREE HSPS warrants the Software to operate as described in the Documentation for 90 days after delivery If you discover a defect in the Software you should return the defective Software to HSPS within such warranty period together with a copy of the invoice or purchase agreement showing the price and date of purchase of the license HSPS will upon verification of the defect or error and if during the warranty period at HSPS s option either repair or replace the defective Software or refund the amount you paid for the license License Fee Upon verification of the defect HSPS will at HSPS s option and as HSPS s sole obligation and your sole remedy hereunder for breach of warranty either repair or replace the non conforming Software or refund the License Fee to you If HSPS elects to provide a refund upon the date you receive notice of such election the license shall terminate and you must comply with the provisions of Section 5 Term Termination above ALL WARRANTIES SHALL TERMINATE 90 DAYS FROM DATE OF DELIVERY OF THE SOFTWARE TO YOU THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS YOU MAY HAVE OTHERS WHICH VARY FROM STATE TO STATE 8 LIMITATION OF LIABILITIES IN NO EVENT WILL HSPS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT INCIDENTAL CONSEQUENTIAL SPECIAL PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE PROD
12. Henry Schein Practice Solutions TERMS AND CONDITIONS All prices are quoted all orders are accepted and all sales are expressly made conditional on your acceptance of these Terms and Conditions which include these introductory paragraphs and the General Terms and Conditions Software Terms and Conditions Hardware Terms and Conditions and Support Terms and Conditions each set forth below collectively Terms and Conditions notwithstanding any purchase orders offers to purchase by you receipts or any other correspondence containing different or additional provisions These Terms and Conditions are an integral part of and are incorporated into any purchase order or offer to purchase and set forth the terms and conditions of a binding agreement between the parties identified on such purchase order or offer to purchase Your signature on the purchase order and or your acceptance of the goods and or services shall in any event constitute acceptance of these Terms and Conditions The use of the term HSPS in the Agreement as hereinafter defined generically represents the corporate entity Henry Schein Practice Solutions a division of Henry Schein Inc that encompasses products from Dentrix Easy Dental National Information Services NIS and LabNet including any related products and services offered by these units The purchase order and or offer to purchase these Terms and Conditions the HSPS Limited Hardware Warranty Limited Ha
13. REEMENT REQUIRED UNDER SECTION 2 ABOVE YOUR LICENSE WILL AUTOMATICALLY TERMINATE 4 DUAL MEDIA SOFTWARE If this or subsequent packages contain CDs or other types of media you may use only the CDs or media appropriate for a single designated computer You may not use the other CDs or media on another computer or loan sublicense rent lease or transfer them except as part of the permanent transfer of the Software as expressly permitted by this Software EULA 5 TERM TERMINATION The license hereunder is effective until terminated HSPS may terminate this Software EULA at any time if you are in breach of any of its terms and conditions Upon termination you shall a Return the media containing the Software together with all Documentation to HSPS b Destroy any and all copies of the Software or any portions of it which have not been returned to HSPS including copies resident in computer memory and c Certify to HSPS in writing that you have retained no copies of the Software and Documentation or any portion thereof Upon any termination of this Software EULA HSPS shall invoice you for all accrued fees and all reimbursable expenses and you agree to pay the invoiced amount immediately upon receipt of such invoice 6 ELECTRONIC SERVICES PROVIDED BY HSPS VIA NATIONAL INFORMATION SERVICES a PATIENT INFORMATION Electronic services provided by HSPS stores confidential patient information on secure servers hereafter designated as the Servers
14. S PROVIDED FOR IN THIS SOFTWARE EULA You may not distribute disclose or allow use of the Software or the Documentation or any portion thereof by any third party other than your own personnel in any format and through any timesharing service service bureau network or by any other means Using unauthorized third party electronic claim software may violate federal regulations as outlined in the Health Insurance Portability and Accountability Act of 1996 HIPAA and may seriously compromise security within your HSPS Software system HSPS shall not be held liable for any security breaches or fines that you may incur due to the use of unauthorized third party software 2 ASSIGNMENT You may transfer your Software product license s together with the original Product which includes all versions and updates to that Software product on a permanent basis only after the following conditions are met a You are selling your entire practice including the practice management software the practice management software cannot be sold or transferred alone b In order to transfer a site license for an entire site that is being sold which is not accompanied by the main license under which the site license was purchased HSPS will require that the site license be upgraded to a full license by you including all corresponding fees and paperwork Otherwise the site license is ineligible for transfer You have received written permission from HSPS to transfer the
15. UCT THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR OTHERWISE IN CONNECTION WITH THE PRODUCT ITS SOFTWARE THE DOCUMENTATION AND OR THE LICENSE EVEN IF HSPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN NO EVENT SHALL HSPS S TOTAL LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THE PRODUCT ITS SOFTWARE THE DOCUMENTATION AND OR THIS LICENSE EXCEED THE LICENSE FEES PAID FOR YOUR RIGHT TO USE THIS PRODUCT WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT BREACH OF WARRANTY TORT OR OTHERWISE YOU ACKNOWLEDGE THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK IN NO EVENT SHALL HSPS BE HELD LIABLE TO YOU WHENEVER REGISTRY FILES ARE EXAMINED AND OR EDITED BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES THE ABOVE LIMITATION MAY NOT APPLY TO YOU 9 CONFIDENTIAL INFORMATION The parties agree that the Product Software Documentation license any functional limitations of or errors in the Software and other materials provided by HSPS to you are the Confidential Information of HSPS subject to Section 18 Confidential Information of the General Terms and Conditions 10 UPGRADES After upgrading any HSPS Software whether in the same product family e g Easy Dental 2005 to Easy Dental 2007 or across product families e g Easy Dental 2007 to DENTRIX G2 you may no longer use the previous Product that formed the basis for the upgrade eligibility The pr
16. UMSTANCES FOR ANY LOSS OF USE LOSS OF REVENUE LOSS OF ANTICIPATED PROFITS LOSS OF GOODWILL OR ANY SPECIAL INDIRECT PUNITIVE INCIDENTAL EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING WITHOUT LIMITATION ANY COSTS EXPENSES OR ANY OTHER CLAIMED LOSSES HOWEVER DESIGNATED ARISING OUT OF OR IN CONNECTION WITH THE SALE OR USE OF THE PURCHASED HARDWARE IN CONJUNCTION WITH THIS LIMITED WARRANTY OR THE REPAIR OR REPLACEMENT WHETHER SUCH LIABILITY IS BASED ON THEORIES OF CONTRACT TORT NEGLIGENCE STRICT LIABILITY PRODUCTS LIABILITY OR OTHERWISE All other warranties for hardware purchased through HSPS are provided by the respective hardware manufacturer e g warranty for ScanX ILE is the responsibility of Air Techniques and related warranties are between you and the manufacturer
17. UT LIMITATION THE IMPLIED WARRANTIES OF NON INFRINGEMENT MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE NO HSPS EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY EXPANSION MODIFICATION OR ADDITION TO THIS LIMITATION AND EXCLUSION OF WARRANTIES IN THE AGREEMENT If any sample or model was shown in connection with this sale such sample or model was merely to illustrate the general type and quality of goods shall not be deemed to be a basis of the bargain shall not be relied upon by you and is not to be construed as a representation or warranty that the goods will necessarily be of that type or quality No affirmation of fact description or promise made by HSPS by words pictures drawings or conduct shall constitute a warranty that the goods will conform to such affirmation description or promise shall not be deemed to be a part of the basis of the bargain and shall not be relied upon by you 3 THIRD PARTY PRODUCTS The decision to purchase hardware Software as defined in the Software EULA supplies or services from parties other than HSPS Third Party Products is yours even if HSPS helps you identify evaluate or select them HSPS PROVIDES NO WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO THIRD PARTY PRODUCTS INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON INFRINGEMENT MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE The sole warranty for Third Party Products purchased through HSPS is the warranty if any offered by
18. as such address may be updated and modified from time to time by providing written notice to the other party or as otherwise set forth in the Agreement Any such notice shall be deemed to have been received by the addressee at the time and date when actually delivered or in any event within a 1 business day after sending overnight courier service b 5 days after sending pre paid registered mail or c upon receipt of confirmatory electronic transmission after sending by facsimile or email 20 CONFLICTING TERMS a All orders are accepted and all sales are made subject only to the Terms and Conditions set forth herein and the Agreement is intended as the final complete and exclusive statement of the parties agreement No statements representation agreements or changes of any kind or any representations and agreements not incorporated herein shall be considered part of the final definitive Agreement No course of prior dealings between HSPS and you and no usage of trade shall be used to supplement any term used in the Agreement Acceptance or acquiescence in a course of performance rendered under the Agreement shall not be relevant to determine the meaning of the Agreement b The Agreement shall not be modified or rescinded by agreement conduct or waiver unless specifically agreed to in writing by HSPS Software Terms and Conditions 1 HSPS SOFTWARE END USER LICENSE AGREEMENT EULA The Software EULA is also applicable to and shall gover
19. ent information While HSPS will use encryption technology HSPS does not guarantee system security or the confidentiality of patient information You acknowledge and agree that no form of encryption is fool proof The Secure Mail Service permits you to upload patient information over the Internet The Secure Mail Service is described as secure because the text of the e mail message is encrypted as described above YOU ACKNOWLEDGE AND AGREE THAT THE TEXT OF E MAIL MESSAGES SENT TO RECIPIENTS WHO ARE NOT WITHIN THE HSPS SECURE MAIL NETWORK AND ALL ATTACHMENTS TO THESE MESSAGES ARE NOT SECURE You will hold harmless HSPS its affiliate companies Henry Schein Inc and its stockholders in the event that the Servers security and the data contained therein is compromised as a result of your actions or inactions You also agree to use best efforts in an effort to ensure that the text of your e mail messages and all attachments to your e mail messages are completely secure 7 LIMITED SOFTWARE WARRANTY YOU ASSUME FULL RESPONSIBILITY FOR THE SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED PURPOSES FOR THE PROPER INSTALLATION AND USE OF THE PRODUCT AND FOR VERIFYING THE RESULTS OBTAINED FROM ITS USE HSPS DOES NOT WARRANT GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCT OR REGARDING THE FUNCTIONALITY RELIABILITY MERCHANTABILITY OR PERFORMANCE OF THE PRODUCT OR THAT THE OPERATION OF THE PRODUCT WILL B
20. ents of your package immediately upon receipt If goods are damaged with their container intact you must file a fully completed Concealed Damaged Report with the carrier and in any event send a copy thereof to HSPS within 24 hours after receipt of shipment by you d Claims for shortages or nonconforming shipments must be made in writing and sent to HSPS and must be received by HSPS within 15 days of your receipt of shipment Failure to give such notice shall be deemed an unqualified acceptance and a waiver by you with any claim with respect to the shipment 14 FORCE MAJEURE HSPS shall have no liability for delays failure in performance or damages caused by factors beyond its reasonable control including without limitation changes in government regulations acts of God your acts or omissions labor shortages strikes slowdowns or other combined action of workmen fires floods earthquakes severe weather serious accidents explosions lightning pest damage power surges or failures epidemics quarantines wars insurrections or riots acts of civil or military authorities transportation embargoes shortages or interruptions in delivery of components and materials acts or omissions of communications carriers and delays by HSPS s suppliers HSPS may in its sole discretion allocate available goods and services among customers as it may determine or cancel orders without liability for any part thereof not shipped or provided to you upon re
21. er DENTRIX Voice Headset and Interlink ePad acquired by you the purchaser at the time of delivery of this Limited Warranty shall be free from defects in materials or workmanship under normal use and service for 90 days from the date of shipment Warranty Period by HSPS Ifa defect in materials or workmanship occurs in the purchased hardware during the Warranty Period HSPS shall replace or repair at no cost to you or at its option issue credit for the purchased hardware HSPS s obligations under this Limited Warranty and your sole and exclusive remedy with respect to the hardware are limited to repair replacement or credit as set forth herein This Limited Warranty shall be voided by i misuse abuse neglect act of God or nature modification or alteration other than by HSPS ii faulty installation or repair by any person or entity not certified by HSPS as determined by HSPS in its sole discretion or iii any other circumstance beyond HSPS s control affecting the hardware No employee representative or reseller is authorized to change this Limited Warranty in any way or to grant any other warranty with respect to the hardware delivered pursuant to this Limited Warranty HSPS reserves the right to change or modify at any time any product or any material used in fabrication of products or to discontinue the manufacture of any product without any liability with respect thereto Service under this Limited Warranty shall be provided o
22. evious Product retains no license and therefore can not be transferred sold or utilized on any other hardware or in any other form Any use of the previous Product is a violation of this Software EULA and could be subject to prosecution 11 FORCE MAJEURE In addition to the Force Majeure provision set forth in Section 14 Force Majeure of the General Terms and Conditions HSPS shall have no liability for unauthorized use of the Product or Internet inaccessibility or failure 12 GENERAL You agree that the Agreement constitutes the entire agreement between you and HSPS and supersedes any prior agreement or any other communications relating to the use of the Product It shall not be modified except in writing signed by an authorized representative from the HSPS corporate headquarters Amendments will also be included in subsequent Software releases for review upon installation New Products and upgrades are released at the discretion of HSPS Your continued use of the Software thereafter will indicate your agreement to the amendments Amendments will apply to your existing account as well as to future transactions In addition to Section 19 i of the General Terms and Conditions notice shall be deemed given by sending to address on user s receipt of Product upgrades 13 U S GOVERNMENT RESTRICTED RIGHTS This Section applies to all acquisitions of the Product by or for the Government This Product is provided with RESTRICTED RIGHTS Use duplication or
23. f court including but not limited to on appeal in arbitration in a bankruptcy proceeding or in any insolvency proceedings b HSPS assumes no liability arising from penalty or liquidated damage clauses of any kind written or implied unless specifically approved in writing by HSPS c 1 2 PER MONTH 18 PER YEAR or the maximum legal rate established by law whichever is lower WILL BE CHARGED ON ALL ACCOUNTS 30 DAYS PAST DUE d In the event you breach the Agreement or any portion hereof HSPS shall in addition to any other remedies provided under law have the right at its option to retain the down payment or other cash payment herewith made by you as liquidated damages it being agreed that the actual damages of HSPS are difficult if not impossible to ascertain 11 SHIPMENT DELIVERY AND RETURN a Shipments which are delayed at your request or by your delay in supplying information necessary for shipment or the execution of the order may be invoiced and dated the day HSPS is prepared to ship Additional charges for warehousing shipping and other incidental expenses created by the delay may be imposed on you b HSPS reserves the right to make partial shipments Pro rata payments become due as partial shipments are made c Delivery information and schedules are approximate and not guaranteed Delivery means time of delivery to carrier Delay by you in supplying specifications or information necessary to execution of the order or delay at
24. funding any allocable advance payments received for the canceled portion 15 CONDITIONS FOR RESALE All terms and conditions set forth in the Terms and Conditions Limited Hardware Warranty and Software EULA shall be binding upon you and all subsequent owners and users of these goods Without limitation of the foregoing however the goods identified herein are subject to the condition that they nor any portion of them shall not by way of trade or otherwise be lent resold or otherwise conveyed without similar conditions including this condition being imposed on subsequent borrower purchaser or transferee written notice of the transfer of ownership or use must be made to HSPS prior to the completion of the transfer For the avoidance of doubt you may transfer your Software product license s only in accordance with Section 2 Assignment of the Software EULA 16 PRODUCT MODIFICATION AND SUBSTITUTION HSPS reserves the right to change or modify at any time any product or any material used in fabrication of products or to discontinue the manufacture of any product without any liability with respect thereto 17 PRODUCT UPGRADES a It is important to realize that computer hardware networks operating systems and software technologies continue to advance It is the desire of HSPS to take advantage of these technology advances by leveraging and or incorporating them as they relate to the hardware and software products and services that HSPS sells
25. gents of HSPS HSPS warrants only that the CIE has passed the necessary requirements for certification HSPS assumes no responsibility or liability for any contract or agreement entered into and between a CIE and you either written or implied 6 FEES AND NON PAYMENT You shall pay to HSPS the fees in the quote provided by HSPS Fees are subject to change in the sole discretion of HSPS at any time Such change in support fees shall become effective for you on the earlier of i the 60th day after notice to you of a change in fees or ii at the beginning of the next automatic renewal term of your Customer Service Plan provided that you shall have the right following notice of the change in fees but prior to the effective date of such change to discontinue your Customer Service Plan Non payment of fees for 90 days constitutes a breach of agreement and your Customer Service Plan may be terminated 7 eCentral The basic website which is included with the purchase of a HSPS Customer Service Plan includes 3 standard pages of information and is hosted by HSPS You must contact HSPS in order to initiate this service for your practice and create your basic website eCentral includes additional electronic services and capabilities for a monthly fee Ask your sales representative for more information 8 ONSITE CHARGES In no event shall HSPS be liable for any vendor s service charges for on site service even if you were advised by HSPS that these services ma
26. greements Notwithstanding the foregoing in the event of a conflict between the Agreement and any other HSPS or affiliate or subsidiaries form software license agreement support agreement purchase or user agreement or service agreement the terms and conditions set forth in such form agreements shall control Sullivan Schein Dental Equipment Sales Specialists ESS Technology Sales Specialists TSS and Field Sales Consultants FSC as well as HSPS Sales and Independent Representatives IRs are not authorized to bind HSPS in any way nor make any warranties outside of those stated herein Oral statements shall not constitute warranties and any oral statements shall not be relied upon nor considered part of the Agreement g HSPS shall be entitled to disclose and publicize in the form of customer lists marketing materials and otherwise your identity as a client of HSPS and display your logo on its web site h You represent and warrant that you will at all times during the term of the Agreement and thereafter comply with all laws directly or indirectly applicable to you or your organization that may now or hereafter govern the products and services sold by HSPS to you hereunder and use your best efforts to cause all persons or entities under your direction or control to comply with such laws i Any notice that is required to be given under this Agreement shall be in writing and shall be deemed given by sending to the other party s address on file
27. ible for transfer d DENTRIX and Easy Dental are not implemented or tested for multi site single database configurations and installations where terminal services are used to achieve such a configuration are not supported by HSPS DENTRIX Enterprise is developed and tested to support multi site single database configurations Pricing and licensing for DENTRIX Enterprise is not covered under the Agreement Hardware Terms and Conditions 1 HSPS LIMITED HARDWARE WARRANTY The Limited Hardware Warranty is also applicable to and shall govern HSPS products that incorporate hardware In addition to the General Terms and Conditions you also agree to be bound by the Limited Hardware Warranty for any HSPS hardware product acquired and installed 2 PRODUCT COMPATIBILITY Due to the differences in computer systems hardware solutions i e DENTRIX Dictation DENTRIX Identity DENTRIX Voice etc purchased from HSPS may or may not be compatible with your computer system HSPS cannot guarantee compatibility of all hardware purchased from HSPS with your computer If you purchase a hardware solution from HSPS and subsequently determine that said solution is not compatible with your computer you may return the hardware solution within 30 days for a refund of the price you paid for the solution less a 15 restocking fee Support Terms and Conditions 1 TERM TERMINATION Your subscription to any customer service plan Customer Service Plan is for 1 year
28. license s you will be required to sign a License Transfer Agreement The recipient has signed and submitted a new License Agreement You destroy all copies of the Software that you do not transfer to the recipient You pay all license transfer fees g In the event that HSPS requires a Bill of Sale it must include an itemized entry for the HSPS Software being transferred Except as provided above you may not sublicense assign or transfer the license s for the Product or previous versions of the Product Any attempt to do so shall terminate the license You are responsible for notifying HSPS in the event of a change of address a change of ownership or to request a license name change mono 3 COPIES MODIFICATIONS OR MERGER You may make copy of each Software media solely for backup or archival purposes in support of your use on a single computer You may not make any other copies or modify all or any portion of the Software or Documentation or merge it into another program unless expressly authorized in writing by HSPS You shall use your best efforts to prevent any unauthorized copying of the Software and Documentation IF YOU OR YOUR PERSONNEL COPY MODIFY OR MERGE ANY PORTION OF THE SOFTWARE OR DOCUMENTATION OTHER THAN WITH HSPS S PRIOR WRITTEN AUTHORIZATION OR IF YOU OR YOUR PERSONNEL TRANSFER POSSESSION OF ANY COPY MODIFICATION OR MERGED PORTION OF THE SOFTWARE OR DOCUMENTATION TO ANOTHER PARTY WITHOUT OBTAINING THE TRANSFEREE S AG
29. n HSPS Software products In addition to the General Terms and Conditions you also agree to be bound by the Software EULAs for any HSPS Software product obtained licensed and or installed 2 SITE LICENSING a Site licenses are sold to organizations that provide dental care at more than 1 site or location or who use more than instance of a practice management database at the same site or location A site license is required for each site physical location or place where an additional instance of the database is being utilized In order to purchase a site license you must already own an existing license for the Software You understand and agree that site licenses are granted and registered as a subset of the originally purchased Software license agreement and are subject to the same terms and conditions as outlined in the applicable Software EULA b You understand and agree that you are required to purchase corresponding support plans for each site location or installed instance of a practice management database if you intend to install Software upgrades and receive telephone support for each additional site location or installed instance c You also understand that in order to transfer a site license which is not accompanied by the main license under which the site license was purchased HSPS will require that the site license be upgraded to a full license by you including all corresponding fees and paperwork Otherwise the site license is inelig
30. ngineering and or fabrication charges applicable to the canceled order b HSPS will not accept goods for return or credit other than for a claim arising under the Limited Hardware Warranty or Software EULA unless 1 you provide written notice to HSPS within 60 calendar days from the date of purchase as to the failure of conformance of the purchased hardware or Software 2 HSPS has first granted permission for such a return and 3 you receive a Returned Material Authorization RMA form issued by HSPS or its duly authorized independent representative Hardware and Software returns are limited only to a warranty claim of non conformance to the Limited Hardware Warranty or the Software EULA Risk of loss for returned goods will remain with you and you shall reimburse HSPS for any costs it incurs in connection with the shipment and return of goods including but not limited to a 15 handling examination and repacking charge Goods fabricated to order are not returnable under any circumstances except for an approved warranty claim 10 FEES AND INTEREST a If an invoice is not paid when due you breach the Agreement or any portion thereof or it becomes necessary for HSPS to enforce or defend any of its rights under the Agreement you agree to pay all costs of the collection or enforcement or both including reasonable attorneys fees for HSPS attorneys and all other reasonable costs in enforcing the terms hereof whether incurred in or out o
31. ning price changes and price changes related to such modifications 6 TAXES The amount of any present or future sales use excise or similar taxes applicable to the goods or services ordered shall be added to the price and paid by you unless you in a timely manner provide HSPS or a duly authorized representative with a tax exemption certificate acceptable to HSPS You shall indemnify defend and hold harmless HSPS and its officers employees and agents for any and all losses costs expenses and liabilities including but not limited to taxes judgments fees and interest associated with taxes in connection with the Agreement 7 PAYMENT Payment is due upon shipment or partial shipment as discussed in Section 11 Shipment Delivery and Return below In the event of financing you shall pay a minimum of 10 of the purchase price as down payment unless the financing option indicates otherwise 8 ORDER ACCEPTANCE a All orders are subject to and shall be effective only upon the earliest of either a written acceptance by a duly authorized representative of HSPS or the delivery of the goods or consummation of the services as applicable All account information must be verified before HSPS will accept any order The legal name of the entity if there are multiple owners should be stated in the Sold To section on the order form All owners must be listed on the order form preferably in the New Act fields so they can be incorporated into
32. nly a to the original purchaser of the purchased hardware b if notice of any defect is provided to HSPS during the Warranty Period and c if inspection by HSPS reveals a valid claim under this Limited Warranty In the event the hardware sold to you fails to conform to the Limited Warranty you agree to give HSPS written notice of such nonconformance within 30 days of discovery of the defect or when the defect should reasonably have been discovered and in any event notification must be made within the Warranty Period or you waive any rights with respect to the hardware Within a reasonable time after HSPS has received such written notice HSPS may grant permission for a return and send you a RMA form HSPS will not accept hardware for repair replacement or credit unless you have a provided written notice to HSPS within the Warranty Period as to the failure of conformance of the purchased hardware with this Limited Warranty b HSPS has granted permission for such a return and c you have received an RMA form issued by HSPS HSPS may use either new or factory refurbished hardware at its sole discretion in making any replacement under this Limited Warranty Time expended by HSPS for replacement deliveries shall not interrupt or prolong the term of this Limited Warranty Replacement hardware will assume the balance of the original hardware s remaining Warranty Period or 60 days whichever is longer Within a reasonable time after your return of
33. nstallation maintenance support warranties or services and you are required to purchase these products or services as you see fit or desirable As computer hardware networks operating systems and software technologies continue to advance it is HSPS s desire to take advantage of these advances and leverage and incorporate them as they relate to the hardware and software products and services that HSPS sells As set forth in Section 17 a of the General Terms and Conditions as a result in order for you to realize the maximum benefit of HSPS products and services you may be required to upgrade your existing computer hardware network infrastructure or operating systems from time to time in order to access or use the hardware and related software solutions HSPS is not responsible for costs or services associated with installations upgrades or evaluations in any respect You may use HSPS phone support resources for installation and troubleshooting of HSPS hardware and related Software by purchasing a Customer Service Plan as defined in the Support Terms and Conditions or via a pay per minute option THE LIMITED GENERAL WARRANTY SET FORTH IN THE GENERAL TERMS AND CONDITIONS AND THIS LIMITED WARRANTY ARE NON TRANSFERABLE AND ARE EFFECTIVE ONLY FOR THE ORIGINAL PURCHASER OF THE HARDWARE ACCOMPANIED BY THIS LIMITED WARRANTY IN NO EVENT SHALL HSPS OR ITS AFFILIATES ADVISORS EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRC
34. rdware Warranty and the HSPS Software End User License Agreement Software EULA are referred to collectively as the Agreement The General Terms and Conditions set forth below apply to all products and services owned and sold by HSPS and do not cover third party hardware or software products sold through HSPS unless explicitly stated Additional terms and conditions specific to purchased software hardware or support are covered in the specific sections set forth below dedicated to those topics General Terms and Conditions 1 HSPS LIMITED GENERAL WARRANTY HSPS WARRANTS THAT ALL GOODS MANUFACTURED AND SOLD BY HSPS AND ALL SERVICES CONTRACTED FOR UNDER THE AGREEMENT ARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS IN ADDITION TO THE SOFTWARE EULA A SEPARATELY PROVIDED DOCUMENT AND THE LIMITED HARDWARE WARRANTY A SEPARATELY PROVIDED DOCUMENT AS APPLICABLE REPAIR AND REPLACEMENT AS DESCRIBED HEREIN OR THEREIN SHALL BE YOUR SOLE REMEDY FOR ANY DEFECT 2 EXCLUSIONS OF WARRANTY LIMITATION OF LIABILITY AND REMEDIES EXCEPT FOR THE WARRANTIES WITH RESPECT TO THE SOFTWARE HARDWARE AND SUPPORT EXPRESSLY SET FORTH IN THE TERMS AND CONDITIONS LIMITED HARDWARE WARRANTY AND SOFTWARE EULA HSPS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO THE PRODUCT SERVICES OR THIRD PARTY PRODUCTS PROVIDED HEREUNDER AND HSPS DISCLAIMS ALL OTHER WARRANTIES WHETHER ORAL OR WRITTEN EXPRESS OR IMPLIED INCLUDING WITHO
35. sed 11 REINSTATEMENT AND UPGRADES If you have previously subscribed to an HSPS Customer Service Plan but have not kept the plan active additional reinstatement and upgrade fees may apply Software upgrades will be shipped to you as soon as all reinstatement upgrade and plan fees are received in full Please contact HSPS for additional pricing information and any fees that may apply Henry Schein Practice Solutions SOFTWARE END USER LICENSE AGREEMENT EULA This legal document is a license agreement and not an agreement for sale You as the END USER acknowledge that HSPS is the exclusive owner of all right title and interest in the Software and Documentation each as hereinafter defined You further acknowledge that HSPS is the owner and holder of all copyright patent trademark trade secret and other proprietary rights therein collectively Proprietary Rights and reserves all such Proprietary Rights to itself except as expressly licensed to you hereunder BY OPENING ANY SEALED SOFTWARE PACKAGE OR USING ANY SOFTWARE FROM HSPS YOU AGREE THAT YOU HAVE READ UNDERSTAND AND ACCEPT THE PROVISIONS IN THIS SOFTWARE EULA AND THE TERMS AND CONDITIONS 1 SCOPE OF USE Software shall mean the machine readable software programs and associated files whether in packaged form or received electronically and any modified version upgrades and other copies of such programs and files owned by HSPS and licensed to you The term Documentation
36. smitting patient information HSPS will use commercially reasonable efforts to maintain the confidentiality of patient information you transmit and to prevent the disclosure of such information to third parties except in connection with the transmission storage retrieval and disclosure of such information on your behalf and except as may be required or permitted by law HSPS reserves the right to use and disclose to third parties information gathered during your use of the Servers for purposes required by or compliant with all applicable laws such disclosures to third parties will be in the form of aggregate data only such as overall patterns or demographic reports and shall not include any personally identifiable information as defined by law HSPS CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF PATIENT INFORMATION OR OTHER INFORMATION TRANSMITTED UPLOADED OR STORED USING THE SERVERS OR THE SERVICES AND SHALL NOT BE HELD LIABLE FOR ANY DAMAGES RESULTING FROM YOUR USE OR MISUSE OF THIS INFORMATION FURTHERMORE YOU AGREE TO INDEMNIFY HSPS FROM ANY CLAIM ACTION OR CAUSE TORT OR OTHERWISE THAT MAY BE BROUGHT AGAINST YOU OR HSPS IN THE EVENT THAT PATIENT INFORMATION IS COMPROMISED DUE TO YOUR NEGLIGENCE OR MISCONDUCT INCLUDING FAILURE TO SECURE IDS AND PASSWORDS YOU ALSO AGREE TO INDEMNIFY HSPS FOR DAMAGES RESULTING FROM YOUR FAILURE TO USE OR CONTROL AUTHORIZATION OF USER PASSWORDS AND FOR ANY USER BREACH OF THIS SOFTWARE EULA
37. the account details maintained by HSPS HSPS is not liable for misrepresented inaccurate or incomplete information included on the order form Should a dispute arise in regards to ownership and transfer rights HSPS will rely on the information that was provided to HSPS on the purchase order form at the time of purchase Any irreconcilable dispute with regards to ownership and transfer rights is between the disputing parties and does not include HSPS Ifa legal judgment is rendered in any dispute HSPS will require an official court notification of ownership in order to change the ownership within the account details maintained by HSPS b Telephone orders are accepted at your risk as shipments made before receipt of written confirmation are for your convenience only and HSPS shall not be liable for any acts or omissions in connection with telephone orders To avoid duplication all confirming orders must clearly be marked confirmation Confirmation orders not so marked can be treated as original orders at your expense 9 FINANCIAL CONDITION CANCELLATION AND RETURNS a If your financial condition is not satisfactory to HSPS at the time shipment is ready or at any other time HSPS may cancel the order or require full or partial payment in advance of shipment preparation After acceptance by HSPS orders cannot be canceled by you without HSPS s written consent and then only upon terms that will compensate HSPS for all costs and expenses including e
38. the non conforming hardware to HSPS HSPS will upon verification of non conformance and resulting coverage under this Limited Warranty of the defective hardware repair or replace the defective hardware or at the sole discretion of HSPS refund the purchase price of such portion of the hardware which is rendered unusable as a result of such non conformance HSPS s sole liability of any claim arising out of the sale of hardware or its replacement of defective goods whether in contract warranty tort or otherwise shall be limited to the purchase price of the hardware that proves defective In no event shall HSPS be liable and you shall hold HSPS harmless from any damages direct indirect consequential or other whether resulting from HSPS s negligence or otherwise arising out of in connection with or resulting from the hardware sold to you and any and all claims actions suits and proceedings which may be instituted in respect to the foregoing including those made by subsequent owners and all users of the hardware In the event the remedies provided by the Limited Warranty fail of their essential purpose HSPS s liability shall nonetheless solely be limited to the refund of whatever portion of the purchase price has been paid with respect to the defective hardware Computer hardware operating systems networks and any associated warranties including non HSPS hardware is your sole responsibility HSPS assumes no responsibility or liability for i
39. unless either party provides the other party written notice of cancellation or a change in term of the Customer Service Plan at least 30 days prior to the end of the then current term The Customer Service Plan will renew at the published rate for a 1 year term at the time of renewal Should you cancel your Customer Service Plan you will be subject to reinstatement fees if you wish to subscribe again 3 COVERAGE HSPS certified technicians are not authorized to provide assistance with software or hardware applications that are not developed by HSPS unless HSPS explicitly provides to the contrary in a writing to you All HSPS Customer Service Plans only cover assistance and upgrades to Software developed by HSPS You fully acknowledge and agree to give HSPS reasonable access to your systems as necessary to perform its obligations hereunder 4 TIMING OF UPGRADES HSPS makes no warranties expressed or implied in regards to the timing or number of upgrades updates or new releases each year Furthermore HSPS does not guarantee the timing distribution or delivery of the newsletter 5 AUTHORIZED PERSONNEL HSPS recommends that you use a Certified Integration Engineer CIE trained by HSPS to install hardware and software manufactured or distributed by HSPS Your use of a non certified organization may result in limited support availability Ask your HSPS sales representative for more information CIEs are independent contractors not employees or a
40. y be necessary You are solely responsible for these charges and the decision to contract for these services is yours 9 HSPS CUSTOMER SERVICE PLANS a HSPS Customer Service Plans cover the practice management software and related HSPS products and services e g dentriXlinks DENTRIXVoice QuickBill eClaims etc for a single site or installed instance of a practice management database See Section 2 Site Licensing under the Software Terms and Conditions Support for other hardware installed operating systems or third party programs or utilities are not covered under these plans b HSPS Customer Service Plans do not cover shipping or other service related costs You may be billed for shipping and handling fees with every upgrade enhancement or other release you receive c HSPS Customer Service Plans do not cover nor include on site service which may be contracted for through a CIE or other third party provider at your additional cost 10 OTHER CUSTOMER SERVICE PLANS HSPS may sell Customer Service Plans for third party companies i e Dexis These plans are sold and renewed as a purchasing convenience to you All details and requirements for these plans are subject to and maintained by the third party company for which the plan was sold HSPS is not responsible for the content quality fulfillment or any other related plan details and all related issues should be directed to the specified third party company for which the plan was purcha
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