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TOOTH TELLER
CUSTOMER MASTER TERMS OF SERVICE

Effective Date: As of July 1, 2025
Latest Revision Date: N/A

These Customer Master Terms of Service (“Agreement”) is made and entered into by and between Tooth Teller, LLC, a Delaware limited liability company (“Tooth Teller”), and the “Customer” identified on the executed Order incorporating this Agreement and is effective as of the date of execution of the Order (“Effective Date”). If Customer is corporation, limited liability company, limited partnership or other legal entity, the individual accepting this Agreement on behalf of the Customer represents that he or she has the authority to bind such legal entity to this Agreement. Tooth Teller and Customer are each referred to individually herein as a “Party” and collectively referred to herein as the “Parties”.

STATEMENT OF PURPOSE

Customer desires to obtain certain Services from Tooth Teller (as defined in Exhibit A hereto), including Subscription Services providing access to Tooth Teller’s software as a service platform, as set forth in the Order.  Tooth Teller desires to provide such Services on the terms and conditions set forth in this Agreement and the Order.

In consideration of the foregoing, and of the mutual covenants and agreements set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Tooth Teller and Customer agree as follows:

AGREEMENT

This Agreement consists of the terms set forth herein, in the following Exhibits, which are attached hereto, and in each Order executed by the Customer, each of which shall be deemed attached hereto upon execution. Each Exhibit and executed Order is incorporated into this Agreement by reference. 

Exhibit A – General Terms and Conditions

Schedule 1 to Exhibit A – Definitions

Exhibit B – Business Associate Agreement

Exhibit C – Product Descriptions

Exhibit D – Communication Volume Limits & Pricing Policy

Exhibit E – Cancellation Policy

EXHIBIT A - GENERAL TERMS AND CONDITIONS

1. Definitions and Interpretation.

  1. Definitions. For purposes of this Agreement, capitalized terms used in this Agreement shall have the meaning set forth in Schedule 1 attached hereto and incorporated herein by reference or otherwise in this Agreement.
  2. Interpretation. Unless otherwise indicated, section references are to sections of the document in which the reference is contained. References to numbered (or lettered) sections will be deemed to also refer to and include all subsections of the referenced section. The section headings in this Agreement are intended to be for reference purposes only and shall not be construed to modify or restrict any of the terms or provisions of this Agreement. This Agreement will be deemed to have been written by both Parties. Unless the context requires otherwise, (i) “including” (and any of its derivative forms) means including but not limited to, (ii) “may” means has the right, but not the obligation to do something and “may not” means does not have the right to do something, (iii) “will” and “shall” are expressions of command, not merely expressions of future intent or expectation, (iv) “written” or “in writing” is used for emphasis in certain circumstances, but that will not derogate from the general application of the notice requirements set forth in this Agreement in those and other circumstances, (v) use of the singular imports the plural and vice versa, and (vi) use of a specific gender imports the other gender(s).

2. Services.

  1. Services. This Agreement sets forth the general terms and conditions pursuant to which Tooth Teller, either itself or through one or more Affiliates, will provide Customer with the Services specified in Order executed by the Customer. The Services to be performed by Tooth Teller to Customer are limited to those Services that are expressly set forth in the applicable Order.  Each Order will constitute a part of, and incorporates the terms and conditions of, this Agreement.  For each Order that provides Customer access to and use of the Subscription Services, subject to the conditions, obligations and terms of the Agreement, including any restrictions set forth in the Order and in Section 2(B) of this Exhibit A, Tooth Teller grants to Customer a limited, non-sublicensable, non-transferable license during the Term: (i) to access and use the Subscription Services in accordance with the Documentation provided by Tooth Teller to Customer solely for Customer’s internal business purposes; (ii) to use and reproduce a reasonable number of copies of the Documentation provided by Tooth Teller to Customer solely to support Customer’s use of the Subscription Services; and (iii) to download, install, operate, run and use one (1) copy of the Widget in connection with Customer’s use of the Subscription Services (“Subscription License”).  Authorized Users may exercise the license granted above provided that Customer agrees to be responsible for all acts and omissions of all Authorized Users as if they were Customer’s own acts or omissions.
  2. Restrictions. Customer shall use the Subscription Services only in accordance with the conditions, obligations and terms of this Agreement and such other specifications as may be communicated by Tooth Teller from time to time to Customer in writing, including in the Documentation. Customer agrees that it will not, and will not allow any other Person (including any Authorized User) to: (a) use the Services for any illegal, unauthorized or otherwise improper purposes or any purposes prohibited by this Agreement or to enable, further, assist with or participate in any of the foregoing; (b) remove any legal, copyright, patent, trademark or other intellectual property or proprietary rights notices contained in or on the Tooth Teller Materials; (c) disseminate, distribute, lease, sell, share, sublicense, transfer, or fail to protect the confidentiality of the Tooth Teller Materials; (d) use the Services in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the Documentation; (e) attempt to gain unauthorized access to the Tooth Teller Materials; (f) adapt, attempt to derive source code of, create derivative works based on, decompile, disassemble, modify, reverse compile, reverse engineer, or translate the Tooth Teller Materials; or (g) build, construct, develop or implement any product using similar ideas, features, functions or graphics of any Tooth Teller Materials (or contract with another Person to do so); (h) provide access to the Tooth Teller Materials, in whole or in part, to any third party without Tooth Teller’s prior written consent, which consent may be withheld in Tooth Teller’s sole discretion; or (i) analyze, access or use the Tooth Teller Materials for the purpose of monitoring the performance or functionality of the Services, for competitive or other benchmarking purposes.

3. Consideration.

  1. Payment. Customer shall pay Tooth Teller the amounts specified in an Order for Services, which may include an initial set-up fee due at the time of Order execution, a monthly subscription fee payable in advance starting with the first month following execution of the Order and continuing monthly until Services are cancelled, and any excess communication usage fees that are accrued in a calendar month, as further detailed in the Communication Volume Limits and Pricing Policy attached as Exhibit D to this Agreement (“Fees”). Customer shall maintain a credit card or ACH authorization on file with Tooth Teller for the payment of Fees, Taxes and any other amounts due. Tooth Teller will post all invoices and credit card and ACH receipts for charges to the Customer account accessible through the Subscription Services.  Customer will pay all Fees in U.S. Dollars. All amounts are due when invoiced and will be charged pursuant to the credit card or ACH authorization on file with Tooth Teller.  If Customer does not pay any Fees when due, Customer will pay interest on the overdue balance equal to the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, plus all expenses of collection.  Interest will begin to accrue on the day after the payment due date and will accumulate daily on the outstanding balance until paid in full.  In addition to its other remedies, if Customer fails to timely pay any amounts when due, Tooth Teller shall be entitled to withhold performance of the Services, including discontinue provision of access to the Services until all past due amounts are paid in full.  All Fees paid are non-refundable.
  2. Disputed Invoices. If Customer disputes in good faith any invoice, Customer must provide Tooth Teller with written notice of the amount of and the reason for the dispute within thirty (30) days of receipt of the invoice. Customer must still pay all undisputed amounts on the invoice as provided in Section 3(A). Tooth Teller and Customer will work together in good faith to resolve any timely disputed amount in a prompt and mutually acceptable manner. Customer will pay any disputed amounts that have been resolved via credit card or ACH authorization on file with Tooth Teller.  Tooth Teller will credit or pay to Customer any overpayments within ten (10) days after resolution. In the event Customer fails to timely pay any invoiced Fees and fails to provide written notice to Tooth Teller disputing such Fees as provided in this Section within thirty (30) days of receipt of the invoice, then Customer waives the right to dispute such Fees.
  3. Taxes. Customer is responsible for the payment of all applicable sales, use, value added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges (“Taxes”) arising from the payment of the Fees (other than taxes based on Tooth Teller’s income), the provision of the Services to Customer or the use of the Services by Customer. Customer shall provide to Tooth Teller the primary place of use of the Subscription Services in the Order – each Order shall be for one location only. Customer agrees to pay directly to Tooth Teller the accrued Taxes arising out of this Agreement via the credit card or ACH authorization on file with Tooth Teller, subject to the requirement that Tooth Teller provides an invoice along with an explanation of the calculation of the Taxes. Tooth Teller shall be responsible for remitting any Taxes collected to the applicable taxing authority.  Tooth Teller will make an initial determination of the applicability of Taxes with respect to the Services provided under this Agreement and will begin assessing those Taxes upon commencement of the applicable Services. Notwithstanding, if Customer believes in good faith that the Taxes should not apply to the Services or is being calculated by the taxing authority incorrectly, then Customer, in consultation with Tooth Teller, may challenge the Taxes at Customer’s cost and expense.  If Customer believes in good faith that Tooth Teller is calculating any Taxes incorrectly, then Tooth Teller and Customer will work together in good faith to resolve any dispute as to the Taxes.  If such determination is subsequently challenged or altered by a taxing authority or a change in legislation, Customer acknowledges that the resolution of any additional Taxes due is Customer’s responsibility, including the payment of any related interest, assessments, fines and penalties.  Customer shall timely notify Tooth Teller in writing of any changes in Customer’s business operations that alters the appropriate treatment of Taxes on Customer’s invoices and, if Customer fails to provide such notice, Customer shall be responsible for any interest, assessments, fines and penalties arising therefrom.  Provided Customer complies with such notice requirement, if, Tooth Teller fails to collect and remit any Taxes required to be collected for any taxing authority, Tooth Teller shall be responsible for and shall pay any interest, assessments, fines and penalties which may be assessed against Customer or Tooth Teller for Tooth Teller’s failure to collect and timely remit such Taxes.

4. Customer Responsibilities.

  1. Approvals and Information. Customer acknowledges that Tooth Teller’s ability to provide the Services requires cooperative efforts by both Parties and is dependent on Customer providing complete, timely and accurate information to Tooth Teller. Customer will respond promptly to any Tooth Teller request to provide information, approvals, decisions, or authorizations that are reasonably necessary for Tooth Teller to provide the Services in accordance with an Order, and Tooth Teller’s obligation to provide the Services is expressly conditioned on Customer’s timely responses to such requests. Tooth Teller will provide the Services based on Customer’s responses and Tooth Teller will not be liable for the inaccuracy of information provided or approved by Customer.
  2. Regulatory Approvals. Customer is solely responsible for obtaining all approvals for: using the Services for any of Customer’s business purposes, providing Customer Data through the Services and authorizing Tooth Teller to Process Customer Data as contemplated by this Agreement, in accordance with all applicable Laws.
  3. Use and Verification. Customer is responsible for the results of using any of the Services in its business operations and is responsible for verifying and testing the Services before using them. Customer understands that successful use of the Services requires, among other things, that Customer correctly assesses Customer’s business needs, Customer submits accurate data to Tooth Teller, and Customer properly interprets Processed documents and information. In addition, Customer acknowledges and agrees that Customer is responsible for verifying that its use of the Services complies with all applicable Laws that are known or should be known to Customer based on the information Tooth Teller discloses to Customer regarding the Services.
  4. Customer Account Management and Security. Customer is responsible for the setting up each Authorized User’s account for the Subscription Services, including setting each Authorized User’s password, two-factor authorization, and specifying the Authorized User’s access rights to the Customer Data. Termination of any Authorized User’s access rights to the Subscription Services or any specific Customer Data, whether due to termination of employment or any other reason, is Customer’s sole responsibility.  Customer and Authorized Users will have access to the Customer Data and will be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required in order to access the Subscription Services. Customer will have the ability to export Customer Data out of the Subscription Services and is encouraged to make its own back-ups of the Customer Data. Customer shall implement and maintain appropriate technical, physical, organizational and administrative security measures, procedures, practices and other safeguards to protect against unauthorized access to the Subscription Services. Customer shall promptly inform Tooth Teller of any actual or suspected security breach or incident involving the Tooth Teller Materials.
  5. Widget Installation and Licensing. Customer is required to download and install a Tooth-Teller provided widget (“Widget”) that will facilitate extraction of Customer Data for Processing by the Systems and Applications in connection with the Subscription Services and for Customer to write data to Customer’s computer hardware and software systems using the Subscription Services.
  6. Excused Obligations. Any delay by or failure of Tooth Teller to provide the Services in accordance with this Agreement or the applicable Order will be excused to the extent caused by any of the following:
    1. Customer not providing adequate resources to perform the tasks, functions, or other responsibilities it has under this Agreement or the Order;
    2. Any violation of applicable Laws by Customer;
    3. Customer providing instructions to Tooth Teller that do not comply with applicable Laws;
    4. A Force Majeure Event occurs that delays or prevents performance and cannot be addressed by reasonable mitigation efforts;
    5. Customer or any governmental agency authorized to regulate, oversee or supervise Customer makes any special request that affects the normal performance schedule of Tooth Teller and that Tooth Teller cannot reasonably accommodate;
    6. Customer changes its business operations in a manner that adversely impacts the performance of, or Tooth Teller’s ability to perform, the Services;
    7. Any Customer software including, without limitation, Third-Party Product(s), licensed by Customer necessary for Tooth Teller’s performance of the Services, not performing in accordance with its specifications; or
    8. Inaccurate or incomplete information or data being provided by Customer to Tooth Teller that results in the Services not providing Customer with accurate or complete results.

    If either Party learns of the occurrence or likely occurrence of any of the above, such Party will inform the other Party and the Parties will cooperate in good faith to develop and implement a mutually acceptable mitigation plan to minimize the adverse effects caused by such circumstances. Customer will pay Tooth Teller on a time and materials basis at the rates set forth in the Order, or such other amounts as mutually agreed upon by the Parties, for the additional costs incurred and additional resources provided by Tooth Teller to implement the agreed upon mitigation plan.

  7. Consent to Communications.
    1. By accessing and/or using the Services, whether through the execution of an Order, the registration process or otherwise, Customer and Authorized Users consent to Tooth Teller sending communications, information, or data regarding the Services, including but not limited to (a) notices about use of the Subscription Services, including any notices concerning violations of this Agreement, (b) updates and modifications to the Subscription Services, and (c) promotional information and materials regarding Tooth Teller’s products and services, via email or via SMS. Tooth Teller will give you the opportunity to opt-out of receiving electronic mail from us by following the opt-out instructions provided in the message.
    2. Certain Services provided by Tooth Teller include the ability to communicate with a Customer’s Authorized Users, clients or patients via texting and/or email functionality. Customer shall obtain all necessary rights from such Authorized Users and clients/patients prior to instructing Tooth Teller to submit email and/or SMS / text messages to Authorized Users, clients or patients. Customer shall immediately notify Tooth Teller if any such revocation of consent is provided to Customer. Tooth Teller is in no way liable for contacting any individual who has provided Customer with a request to stop contacting them or revocation of consent to communicate via SMS / text messaging and/or emailing, and Customer shall defend and indemnify Tooth Teller for any claims made by any Authorized User, client or patient arising from or based on Tooth Teller SMS / text messaging and/or emailing the Authorized User, client or patient.
    3. Customer has a processing account using Dental Card Services Alliance, LLC (“Processor”). Customer authorizes Tooth Teller to communicate with the Processor and exchange information with the Processor about and regarding to facilitate the onboarding and provision of Services to Customer.

5. Confidentiality.

  1. Confidential Information and Trade Secrets.
    1. Discloser has developed, is in the possession of, and/or is the owner of certain Confidential Information and Trade Secrets and is willing to disclose the same to Recipient on the terms and conditions set forth herein.
    2. Discloser agrees to make a limited disclosure of certain Confidential Information and Trade Secrets to Recipient for the sole purpose of Recipient using the Confidential Information and Trade Secrets in connection with the Designated Purpose only.
  2. Maintenance of Confidentiality.
    1. Recipient expressly acknowledges and agrees that Confidential Information and Trade Secrets disclosed or made available by or on behalf of Discloser to Recipient have actual or potential economic value from not being generally known or readily ascertainable and are the subject of efforts by Discloser to maintain their secrecy.  Recipient shall not, without the express written consent of Discloser, directly or indirectly, disclose to any Person or, except in furtherance of the Designated Purpose, make use of for itself or any other Person, (a) any Confidential Information of the Discloser during the Term of this Agreement and for a period of five (5) years immediately following expiration of this Agreement, as extended; and (b) any Trade Secrets of the Discloser during the Term of this Agreement and for the longer of (i) the period in subpart (a) above and (ii) so long thereafter as any particular Trade Secret retains its status as a trade secret under the DTSA and/or DEUTSA.  The protection afforded to Confidential Information and/or Trade Secrets by this provision is not intended to limit in any way any protection provided to any such information under any applicable federal, state or local law or any law of a foreign jurisdiction.
    2. Without the prior written consent of Discloser, Recipient shall not copy, reproduce, create derivative works, divulge, transfer, transmit, make available, distribute, sell, offer for sale, license or lease the Confidential Information and/or Trade Secrets of the Discloser, or reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that embody the Confidential Information and/or Trade Secrets of the Discloser.
    3. Recipient represents, warrants and covenants to Discloser that any of its Representatives who have access to the Confidential Information and/or Trade Secrets of the Discloser are bound by confidentiality obligations in content substantially similar to the provisions hereof, prior to any disclosure of the Confidential Information and/or Trade Secrets to such Representatives.  Notwithstanding anything herein to the contrary, Recipient shall restrict dissemination of the Confidential Information and/or Trade Secrets of the Discloser to only those Representatives of Recipient who have an actual need to know to perform their obligations for Recipient or exercise Recipient’s rights hereunder, but solely in connection with the Designated Purpose.
    4. The Recipient shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and Trade Secrets of the Discloser and the Discloser’s rights therein, at all times with at least the same degree of care that Recipient uses to protect Recipient’s own Confidential Information and Trade Secrets, but in no event less than a reasonable level of care.
    5. In the event Tooth Teller receives Personal Data in connection with the Subscription Services: (a) Tooth Teller agrees that it will only use Personal Data to perform its obligations under this Agreement and that it will not use any Personal Data for direct marketing, promotions, or any other similar purpose; (b) Tooth Teller shall establish commercially reasonable controls to ensure the confidentiality of Personal Data and to ensure that Personal Data is not used or disclosed contrary to the provisions of this Agreement, or any other applicable Laws; and (c) Tooth Teller shall develop written company policies and procedures, as well as implement physical and other security measures as are necessary to: (I) ensure the security, integrity, and confidentiality of Personal Data; (II) protect against any threats or hazards to the security and integrity of Personal Data; and (III) protect against any unauthorized access to or use of Personal Data.
    6. Notwithstanding anything herein to the contrary, in the event that the Recipient is required by applicable Law, or order or other action of a competent judicial, regulatory, administrative, or governmental authority (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information and/or Trade Secrets of the Discloser (“Required Disclosure”), the Recipient may without liability disclose Confidential Information and/or Trade Secrets of the Discloser pursuant to the Required Disclosure, provided that (a) the Recipient, to the extent legally permitted, provides the Discloser with prompt written notice of such a Required Discloser prior to any disclosure it makes pursuant to such a Required Disclosure, (b) the Recipient, to the extent legally permitted, provides the Discloser with a reasonable opportunity to seek, at the Discloser’s cost and expense, an appropriate protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information and/or Trade Secrets, (c) if, failing the entry of a protective order, the Recipient, upon the advice of legal counsel, is compelled to disclose Confidential Information and/or Trade Secrets of the Discloser, the Recipient only discloses that portion of the Confidential Information and/or Trade Secrets that such legal counsel advises the Recipient that the Recipient is compelled to disclose pursuant to such a Required Disclosure, and (d) the Recipient exercises reasonable efforts, at the Discloser’s cost and expense, to seek confidential treatment for that portion of the Confidential Information and/or Trade Secrets of the Discloser that is being disclosed by the Recipient pursuant to such Required Disclosure.  In any event, the Recipient will not oppose any action taken by the Discloser to obtain an appropriate protective order, other appropriate remedy to preserve the confidentiality of the Confidential Information and Trade Secrets of the Discloser, or other reliable assurance that confidential treatment will be accorded the Confidential Information and Trade Secrets of the Discloser.  If requested by the Discloser, the Recipient shall reasonably cooperate (at the cost and expense of the Discloser) in any action taken by the Discloser to protect the confidentiality of the Confidential Information and Trade Secrets of the Discloser.
    7. Recipient’s violation or noncompliance with any of Recipient’s obligations set forth in this Section 5, including, without limitation, the use or disclosure of the Confidential Information and/or Trade Secrets of the Discloser for any purpose other than the Designated Purpose shall be a material breach of this Agreement.
  3. No Warranty.  ALL CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS IS PROVIDED BY THE DISCLOSER “AS IS.”  DISCLOSER MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THEIR ACCURACY, COMPLETENESS OR PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR FREEDOM FROM INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OR OTHER PROPRIETARY RIGHTS.
  4. Return of Materials.  All documents and other tangible objects containing or repre-senting Confidential Information and/or Trade Secrets that have been disclosed or made available by Discloser to Recipient, and all permitted copies thereof which are in the possession of Recipient, shall be and remain the property of Discloser and shall be promptly returned to Discloser or, if stored on an electronic media, shall be deleted, upon the earlier of (i) expiration of this Agreement, as extended, or (ii) Discloser’s written request.
  5. No License.  The Confidential Information and Trade Secrets shall be the sole property of Discloser.  Except for the Subscription License, nothing in this Agreement is intended to grant any rights to Recipient under any patent, trademark, or copyright of Discloser, nor shall this Agreement grant Recipient any rights in or to the Confidential Information and/or Trade Secrets of the Discloser.
  6. Confidentiality of this Agreement.
    1. The Parties agree that the terms and conditions of this Agreement and the related negotiations between Customer and Tooth Teller with respect to this Agreement will be treated as Tooth Teller’s Confidential Information pursuant to this Section 5.
    2. Customer also acknowledges and agrees that this Agreement contains Tooth Teller Confidential Information and Customer agrees to limit distribution of this Agreement to those Representatives with a need to know its contents.  Customer shall not reproduce this Agreement or show copies of this Agreement to any other Person without the prior written consent of Tooth Teller, except as may be necessary: (a) by reason of legal, accounting, tax or regulatory requirements, in which event Customer agrees to exercise reasonable diligence in limiting such disclosure to the minimum necessary under the particular circumstances and in which such Persons are bound by confidentiality obligations in content substantially similar to the provisions hereof; or (b) in connection with a proposed merger, acquisition, or divestiture provided that any receiving Party must first execute and deliver to Tooth Teller a nondisclosure agreement on terms similar to those contained herein.

6. Intellectual Property Rights.

  1. Tooth Teller Materials. Tooth Teller will retain all right, title and interests in and to the Tooth Teller Materials and nothing in this Agreement will be deemed to transfer any right, title or interest in any Tooth Teller Materials, either in whole or in part, to Customer. To the extent Customer or its employees author, conceive, create, deliver, design, develop, or prepare any Improvements to the Tooth Teller Materials, Customer hereby assigns to Tooth Teller all right, title and interest in and to such Improvements to the Tooth Teller Materials, including all Intellectual Property Rights therein. No license or other rights in or to the Tooth Teller Materials, including rights to access or use, are granted to Customer except as specifically granted in this Agreement.
  2. Customer Materials. Customer will retain all right, title and interests in and to the Customer Materials and, except as set forth in Section 6(A), nothing in this Agreement will be deemed to transfer any right, title or interest in any Customer Materials, either in whole or in part, to Tooth Teller. Customer hereby grants Tooth Teller a non-exclusive, worldwide, royalty-free and fully-paid license (i) to Process the Customer Data as reasonably necessary for Tooth Teller to provide the Services to Customer and (b) during the Term, to de-identify and aggregate the Customer Data (“De-Identified Data”) and use such De-Identified Data during and after the Term to provide and improve Tooth Teller’s products and services, provided that any such use does not identify Customer or any Authorized User as the source or subject of such De-Identified Data and otherwise complies with applicable Laws.
  3. Usage Data. The Parties acknowledge and agree that Tooth Teller may collect anonymized usage data relating to Customer’s use of the Services and account holder information and user access data and logs (“Usage Data”).  Tooth Teller may use such Usage Data to improve the performance of the Services or for any other purpose provided that Tooth Teller does not specifically identify Customer or its Authorized Users or otherwise disclose Customer Confidential Information or Trade Secrets.
  4. Feedback. Customer agrees that submission of any ideas, suggestions, recommendations and/or feedback (collectively, “Feedback”) is at Customer’s discretion and that Tooth Teller has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. Customer hereby grants to Tooth Teller a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of and otherwise use any and all Feedback.
  5. Termination of Access. Upon termination or expiration of this Agreement or any Order, Customer’s access to the respective Tooth Teller Materials will end immediately and Customer agrees to return or to destroy all copies made by Customer and to certify to Tooth Teller in writing that it has returned or destroyed the Tooth Teller Materials.

7. Hardware, Software and Communications.

  1. Customer Hardware, Software and Communications.
    1. Customer will be responsible, at its own expense, for selecting and obtaining all Third-Party Products, including Third-Party Products that are utilized as a part of Customer’s operating and/or network environment.
    2. Each Order or other Documentation provided by Tooth Teller will include requirements for any specific Third-Party Products that Customer must obtain (e.g., a specific software application that Customer will need), if any, but may not specify generic items that may also be needed (e.g., that Customer will need a printer and paper in order to print reports).
    3. Customer is responsible for obtaining, and for the costs of, all maintenance, support and timely installation of any required enhancements and upgrades on all Third-Party Products.
    4. Customer is also responsible for providing the communications and LAN interfaces to Customer’s network required to support the use and functions of the Services, as well as any hardware, software and communications upgrades necessary for increased performance based on additional user requirements.
    5. Customer assumes full responsibility for acquisition, installation, and usage of all Third-Party Products even if such Third-Party Products are identified by Tooth Teller. Tooth Teller is not responsible for any problems or claims arising out of or related to any Third-Party Products and Customer agrees not to seek recourse against Tooth Teller for the same.
  2. Maintenance Windows. Tooth Teller will promptly communicate to Customer all downtime notices received by Tooth Teller that impact the Systems and Applications.  Tooth Teller will use commercially reasonable efforts to schedule all maintenance windows within reasonable hours to be established by Tooth Teller from time to time and communicated to Customer in writing, which may be an email.

8. Support.

  1. Support. Applicable support services may be set forth in the Order for the relevant Services defined as “Implementation Support” therein. Beyond the Implementation Support, as defined in the Order, Tooth Teller will provide Customer with reasonable technical support and maintenance Services to assist Customer in utilizing the Subscription Services. Support will be accessible through a chat feature available through the Subscription Services or by submitting a request to Tooth Teller through the Customer account accessible through the Subscription Services. Tooth Teller shall use commercially reasonable efforts to resolve implementation, support and maintenance issues.  Tooth Teller will respond to Customer support requests based on: (i) the order that such requests are received; and (ii) the relative importance of such requests as reasonably determined by Tooth Teller.  Tooth Teller may update its support and maintenance policies from time to time.  Services comprising custom development and programing services will be scheduled and completed according to Tooth Teller’s resource availability and standard prioritization process and, in each case, the scope of such services shall be set forth in a new executed Order.

9. Term, Termination and Suspension.

  1. Term. This Agreement is effective from the Effective Date and will continue in full force and effect until terminated in accordance with this Section 9 (“Term”).
  2. Termination or Suspension for Cause. Either Party may terminate this Agreement immediately upon written notice to the other Party if the other Party materially breaches this Agreement and fails to cure such breach within (30) days after its receipt of written notice of such breach. Without limiting the foregoing, Tooth Teller may, in its sole discretion, (i) either suspend the Services or terminate this Agreement and any Order immediately upon notice to Customer without opportunity to cure if Tooth Teller knows or reasonably suspects Customer is in violation of the restrictions set forth in Section 2(B) of this Agreement, and (ii) suspend the Services if Customer fails to timely pay any amounts due and payable by Customer under this Agreement or any Order, provided that Tooth Teller shall promptly resume the Services once such amounts have been paid in full.
  3. Termination for Convenience. If at any time there are no Orders in effect, Tooth Teller may terminate this Agreement upon no less than thirty (30) days prior written notice to Customer. Customer may terminate this Agreement at any time by providing notice of termination by submitting a cancellation request through the Customer account accessible through the Subscription Services and such termination will be effective on the last day of the month in which Customer submits the cancellation request. Submission of the cancellation request shall serve to terminate all then-active Orders effective on the last day of the month in which Customer submits the cancellation request. Notwithstanding the foregoing, Customer shall remain responsible after termination for the payment of any accrued and unpaid Fees, including, without limitation, any excess communication usage fees incurred during the month in which the cancellation request is submitted. Tooth Teller will delete all Customer Data, other than Usage Data, after the termination effective date and, therefore, Customer is responsible for printing and/or downloading any Reporting, including, without limitation, any reports, target lists, and payment plans, prior to the termination effective date.
  4. Termination for Insolvency and Related Events. Subject to applicable Laws, this Agreement may be terminated by either Party, immediately upon written notice to the other Party (i) upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such other Party’s debts, (ii) upon the other Party’s making an assignment for the benefit of creditors, or (iii) upon the other Party’s dissolution or ceasing to do business.
  5. Effect of Termination. If this Agreement is terminated or expires, then all licenses granted to Customer under Section 2 shall immediately terminate.
  6. Survival. Any provision of this Agreement that imposes or contemplates continuing obligations on a Party, including the provisions of Sections 1 (for definitional purposes only), 2(B), 3, 5, 6, 9(D) and (E), 11, 12, and 13 will survive the expiration or termination of this Agreement (including Order) in which it is contained, as applicable. The termination of any particular Order will not affect the Parties’ respective rights, duties, and obligations under any other Orders then in effect.

10. Representations and Warranties.

  1. Tooth Teller’s Representations and Warranties. Tooth Teller represents and warrants to Customer that:
    1. Tooth Teller is a validly formed and existing entity and in good standing under the laws of the state of its formation;
    2. Tooth Teller has the power and authority to execute, deliver and perform its obligations under this Agreement and the same have been duly authorized by all necessary actions of Tooth Teller;
    3. Tooth Teller’s execution and performance of this Agreement will not constitute: (I) a violation of any judgment, order or decree; (II) a default under any material contract by which it is bound; or (III) an event that would, with notice and/or lapse of time, constitute such a default;
    4. Tooth Teller will comply with all applicable Laws in regard to the operation of its business;
    5. Tooth Teller will perform its obligations under this Agreement and each Order in a professional and workmanlike manner;
    6. Tooth Teller owns, is the authorized licensee of, or has the right to provide access to the Services to Customer; and
    7. The Services conform, in all material respects, to the specifications set forth in the applicable Order.
  2. Customer’s Representations and Warranties. Customer represents and warrants that:
    1. Customer is a validly formed and existing entity and in good standing under the laws of the state of its formation;
    2. Customer has the power and authority to execute, deliver and perform its obligations under this Agreement and the same have been duly authorized by all necessary actions of Customer;
    3. Customer’s execution and performance of this Agreement will not constitute: (I) a violation of any judgment, order or decree; (II) a default under any material contract by which it is bound; or (III) an event that would, with notice and/or lapse of time, constitute such a default;
    4. Customer will comply with all applicable Laws in regard to the operation of its business; and
    5. Customer will perform its obligations under this Agreement and each Order in a professional and workmanlike manner.
    6. Customer has all necessary rights to instruct and permit Tooth Teller to submit email and/or SMS / text messages to Authorized Users, clients or patients and there has been no revocation of any consent to contact such client/patient prior to providing the mobile phone number(s) and/or email addresses of such individuals.
    7. Customer has a valid license to use the Third-Party Products specified in the Order as a requirement for use of the Subscription Services, including, without limitation, the supported practice management integration specified in the Order.
  3. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, TOOTH TELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE TOOTH TELLER MATERIALS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE AND ALL SUCH IMPLIED WARRANTIES ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS. TOOTH TELLER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. TOOTH TELLER DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THERE WILL BE NO DATA LOSS.
  4. NO LEGAL ADVICE. THE SERVICES AND TOOTH TELLER’S PROVISION THEREOF DO NOT CONSTITUTE LEGAL ADVICE. THE SUBSCRIPTION SERVICES ARE NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY. CUSTOMER SHOULD SEEK THE ADVICE OF AN ATTORNEY TO DETERMINE WHETHER THE INFORMATION GENERATED THROUGH THE SUBSCRIPTION SERVICES MEETS CUSTOMER’S SPECIFIC NEEDS. CUSTOMER ACKNOWLEDGES THAT TOOTH TELLER IS NOT AUTHORIZED TO PRACTICE LAW, NOR MAY ANY OF TOOTH TELLER’S OFFICERS, EMPLOYEES OR AGENTS PROVIDE LEGAL COUNSEL TO CUSTOMER. ANY QUESTIONS OF A LEGAL NATURE MUST BE DIRECTED TO CUSTOMER’S OWN LEGAL COUNSEL FOR WHICH TOOTH TELLER HAS NO OBLIGATION OR LIABILITY. TOOTH TELLER WILL USE COMMERCIALLY REASONABLE EFFORTS TO KEEP THE SERVICES UP TO DATE WITH NEW LAWS AND REGULATIONS, HOWEVER TOOTH TELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, THAT THE SERVICES (I) WILL BE CURRENT WITH ALL COMPLIANCE REQUIREMENTS AT ALL TIMES, OR (II) WILL KEEP CUSTOMER AND ITS OPERATIONS COMPLIANT WITH ALL APPLICABLE LAWS AND REGULATIONS. CUSTOMER IS RESPONSIBLE FOR UTILIZING AND EXECUTING UPON THE OUTPUT OF THE SUBSCRIPTION SERVICES IN ORDER TO MAINTAIN OPERATIONAL COMPLIANCE. THE SUBSCRIPTION SERVICES ARE DEVELOPED BASED ON TOOTH TELLER’S REASONABLE INTERPRETATION OF APPLICABLE LAWS AND REGULATIONS.

11. Indemnification.

  1. Customer’s Indemnity. Customer will indemnify, defend and hold harmless Tooth Teller and its Affiliates, and its and their respective Representatives (collectively, the “Tooth Teller Indemnitees”), from and against (i) all third-party allegations, causes of action, claims, demands, and suits relating to or arising from (a) Customer’s or its Representatives’ (including Affiliates’) fraud or willful misconduct; (b) Customer’s or its Representatives’ (including Affiliates’) breach of this Agreement; (c) Customer’s use of the Services; (d) Tooth Teller’s performance of the Services, including any modification of the Services to conform to, comply with or satisfy any written policies, processes, interpretations, or other written instructions or specifications provided by Customer; (e) modification of the Subscription Services by Customer including, without limitation, deactivation of any Subscription rule; or (f) any allegation that Tooth Teller’s permitted use of the Customer Materials infringes any third party’s Intellectual Property Rights (individually a “Customer Claim” and collectively, “Customer Claims”); and (ii) any and all assessments, civil penalties, damages, decrees, expenses, judgments, liability, losses, obligations, orders, whether compensatory or punitive, which may be assessed against or incurred by any Tooth Teller Indemnitee as a direct result of a Customer Claim.
  2. Procedure. Tooth Teller will (i) provide prompt written notice to Customer of any Customer Claim for which indemnification is sought, but, in any event, notice within such period of time so as not to materially prejudice the defense of the Customer Claim, (ii) permit Customer to control the defense and settlement of the Customer Claim (provided that the consent of Tooth Teller will be required in the event of any settlement or stipulation admitting fault or liability by any Tooth Teller Indemnitees, imposes any material, non-monetary obligation, or that admits any liability on the part of any Tooth Teller Indemnitees and which does not include an unconditional release of each Tooth Teller Indemnitee, such consent not to be unreasonably conditioned, delayed or withheld), and (c) reasonably cooperate (at no out-of-pocket expense to the Tooth Teller Indemnitees) with the Customer in the defense and settlement of the Customer Claim. The Tooth Teller Indemnitees will be permitted to participate in the defense and settlement of the Customer Claim with counsel of their own choosing and at their own expense.

12. Limitation of Liability.

  1. NO LIABILITY FOR CERTAIN DAMAGES. IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, AND ITS AND THEIR REPRESENTATIVES, HAVE ANY LIABILITY TO THE OTHER PARTY FOR: (I) ANY DAMAGES ARISING OUT OF OR RELATED TO THE FAILURE OF THE OTHER PARTY TO PERFORM ITS RESPONSIBILITIES; OR (II) ANY THIRD-PARTY ALLEGATIONS, CAUSES OF ACTION, CLAIMS, DEMANDS, AND SUITS OTHER THAN CLAIMS COVERED BY SECTION 11; OR (III) IN THE CASE OF TOOTH TELLER, (A) FOR THE AVAILABILITY, PERFORMANCE OR USE OF THE INTERNET OR (B) ANY DAMAGES OR EXPENSES RESULTING FROM UNAUTHORIZED MODIFICATION OR ALTERATION OF THE SERVICES BY CUSTOMER, THE UNAUTHORIZED USE OF THE SERVICES BY CUSTOMER OR ANY RELATED THIRD-PARTY, OR FROM THE UNINTENDED AND UNFORESEEN RESULTS OBTAINED BY CUSTOMER RESULTING FROM SUCH USE; OR (IV) ANY BUSINESS INTERRUPTION, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF USE, LOSS OF GOODWILL, LOST PROFITS, LOST REVENUE, LOST SAVINGS, OR FOR ANY EXEMPLARY, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR SIMILAR DAMAGES, WHETHER BASED ON STATUTE, CONTRACT, TORT OR OTHER THEORY OF LIABILITY AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION SHALL NOT APPLY TO CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 2(B), 4(B), OR 5 OR EITHER PARTY’S LIABILITY OR OBLIGATIONS UNDER SECTION 11.
  2. LIABILITY CAP. EXCEPT FOR CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 2(B), 4(B), OR 5, EACH PARTY’S LIABILITY OR OBLIGATIONS UNDER SECTION 11, AND CUSTOMER’S OBLIGATION TO PAY TOOTH TELLER IN ACCORDANCE WITH THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID BY CUSTOMER TO TOOTH TELLER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM FOR DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION 12(B) SHALL APPLY REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED IN CONTRACT, MISREPRESENTATION, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR OTHERWISE. THESE LIMITS ALSO APPLY TO THE LIABLE PARTY’S AFFILIATES, AND ITS AND THEIR REPRESENTATIVES AND ARE THE MAXIMUM COLLECTIVE LIABILITY FOR WHICH ANY OF THEM MAY BE RESPONSIBLE.
  3. Survival. The limitations of liability set forth in this Section 12 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this Agreement. The Parties agree that the foregoing limitations will not be read so as to limit any liability to an extent that would not be permitted under applicable Laws.
  4. Limitations Fair, Reasonable. The Parties acknowledge that limitations of liability set forth in this Section 12 reflect the allocation of risk between the Parties.

13. General Terms.

  1. Governing Law; Forum; and Attorneys’ Fees. The laws of the state of Delaware shall govern the validity, interpretation, construction, and performance of this Agreement, without giving effect to the principles of conflict of laws. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the District of Delaware, or in state court in New Castle County, Delaware, and each Party irrevocably submits to the exclusive jurisdiction and venue of any such court.  In the event of litigation between the Parties arising out of or related to this Agreement, the prevailing Party will be entitled to recover its attorneys’ fees and costs incurred.
  2. Remedies; Injunctive Relief. Except as otherwise provided, all rights and remedies of the Parties under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies.  A Party’s breach or threatened breach of any of the conditions, obligations or terms of this Agreement may cause irreparable injury that is inadequately compensable in monetary damages.  Accordingly, the other Party will be entitled to seek injunctive or other equitable relief in any court of competent jurisdiction for the breach or threatened breach of this Agreement, in addition to any other remedies in law or equity.
  3. Export. Customer acknowledges and agrees that the Tooth Teller Materials provided by Tooth Teller are subject to the export control laws and regulations of the United States. Customer shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Tooth Teller Materials, either directly or indirectly, to any country in violation of such laws and regulations.
  4. Costs and Expenses. Except as expressly provided for elsewhere in this Agreement, each Party will be responsible for all costs and expenses incurred by such Party in performing its obligations or exercising its rights under this Agreement.
  5. Relationship Between the Parties. Nothing in this Agreement will be construed as creating a partnership or joint venture of any kind between the Parties and neither Party will have the authority or power to bind the other Party or to contract in the name of or create a liability against the other Party in any way or for any purpose.
  6. No Third-Party Beneficiaries. Nothing in this Agreement is intended or will be construed to confer upon or give to any Person other than the Parties to this Agreement any rights or remedies under or by reason of this Agreement.
  7. Assignment. Neither Party may assign or delegate in whole or in part this Agreement, nor any rights, duties, or obligations of either Party under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party which may be withheld in such Party’s sole and absolute discretion. Notwithstanding the foregoing, either Party may assign this Agreement without the other Party’s prior written consent to its successor pursuant to a merger, consolidation or sale of all or substantially all of its assets related to this Agreement, provided the assigning Party promptly notifies the non-assigning Party in writing of the assignment and the assignee agrees in writing to be bound by the terms of this Agreement and provided further that, in the case of Customer as the assigning Party, the assignee is not a competitor of Tooth Teller or any Affiliate of Tooth Teller. Notwithstanding anything herein to the contrary, Tooth Teller shall have the right in its sole and absolute discretion to terminate this Agreement in its entirety immediately upon written notice to Customer in the event that Customer is acquired by, sells all or substantially all its assets to, or undergoes a change of ownership in favor of, a competitor of Tooth Teller or any Tooth Teller Affiliate. Tooth Teller may delegate the performance of the Services to one or more Affiliates and Tooth Teller will be responsible for each such Affiliate’s compliance with the conditions, obligations and terms applicable hereunder to Tooth Teller.
  8. Force Majeure. Neither Party will be responsible to the other Party for delays and/or failures in performance resulting from acts beyond their reasonable control, including acts of God, embargos, catastrophe, sabotage, strikes, lockouts, work stoppages or other labor difficulties, riots, acts of war, acts of terrorism, cyber-attacks, national emergencies, insurrections, governmental prohibitions, regulations, rules or legislation, earthquakes, fire, flood, telecommunication or transmission failures, internet failures, utility failures, epidemics, wide-spread infectious diseases or viruses, or other disasters (individually and collectively, “Force Majeure Event”). Notwithstanding the foregoing, takeovers (hostile or otherwise), mergers, or acquisitions will not be deemed Force Majeure Events. If a Party is unable to perform its obligations under this Agreement due to a Force Majeure Event for a period of thirty (30) days or more, then the other Party may terminate this Agreement upon written notice to the non-performing Party without penalty or liability. The Party suffering a Force Majeure Event will immediately implement reasonable efforts to mitigate negative impacts to the other Party during a Force Majeure Event.
  9. Amendments and Waivers. No condition, obligation or term of this Agreement may be amended, modified or waived except by the written agreement of both Parties. The waiver of a breach of, or a default under, any condition, obligation or term of this Agreement shall not be construed as a waiver of any subsequent breach of the same condition, obligation or term of this Agreement thereof nor shall a waiver of a breach of, or a default under, any condition, obligation or term be construed as a waiver of any breach or default under any other condition, obligation or term or in any manner affect any other condition, obligation or term of this Agreement.
  10. Severability. The provisions of this Agreement will be deemed severable, and the invalidity or unenforceability of any one or more provisions will not affect the validity and enforceability of any other provisions. In addition, if any provision of this Agreement, for any reason, is declared to be invalid or unenforceable, the Parties will substitute a valid and enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the Parties.
  11. Notices. Any legal notice or other communication required or permitted to be made or given by either Party pursuant to this Agreement will be via email and (i) sent to Customer at the email address for Customer set forth in the Order and (ii) sent to Tooth Teller at notices@toothteller.com. Either party may update their email address for notices by sending a notice as set forth in this Section with the new notice email address.
  12. Order of Precedence. If the provisions of Exhibit A to this Agreement are in conflict with the provisions in an executed Order, then the provisions in Exhibit A to this Agreement shall take precedence unless the Order expressly references the conflicting provision of Exhibit A to this Agreement with particularity and expressly states that the Order controls over such provision in Exhibit A.
  13. Counterparts. This Agreement may be executed in one or more counterparts, each of which is deemed an original, but all of which together constitute one agreement.
  14. Entire Agreement. This Agreement constitutes the complete understanding of Tooth Teller and Customer, supersedes any prior oral or written communications, requests for proposals, term sheets or letters of intent, and no representations other than those contained in this Agreement will be binding on either Party. The Parties agree that any pre-printed terms contained in Customer’s purchase orders, acknowledgments, or other forms or in Tooth Teller’s invoices, will be void and of no effect even if signed by the Party against which their enforcement is sought.
  15. Electronic Signatures Binding. Documents (including Orders) executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such scanned and electronic signatures having the same legal effect as original signatures. This Agreement, and any other document necessary for the consummation of the transaction contemplated by this Agreement, may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act (“E-Sign Act”), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act (“UETA”).  Any document accepted, executed or agreed to in conformity with such laws will be binding on each Party as if it were physically executed.  Each Party acknowledges and agrees it will not contest the validity or enforceability of this Agreement, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form.

SCHEDULE 1 – DEFINITIONS

Definitions. For purposes of this Agreement, capitalized terms used in this Agreement shall have the meaning set forth below:

  1. “Access Protocols” means the access codes, passwords, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow the Authorized Users of Customer to access and use the Subscription Services.
  2. “Affiliate” means, with respect to any Party, any Person Controlling, Controlled by, or under common Control with such Party.
  3. “Agreement” has the meaning set forth in the preamble of this Agreement.
  4. “Authorized User” means an individual who is an employee or contractor of Customer and is authorized by Customer to access the Subscription Services pursuant to Customer’s rights under this Agreement.
  5. “Business Hours” means the hours of 9 AM Eastern Time until 5 PM Eastern Time on Monday, Tuesday, Wednesday, Thursday and Friday, excluding all national holidays observed by the Federal Reserve Bank.
  6. “Customer Claim” and “Customer Claims” have the meaning set forth in Section 11(A) of Exhibit A to this Agreement.
  7. “Customer Data” means any content and information submitted by or on behalf of Customer or any Authorized Users to the Services.
  8. “Customer Materials” means all Customer Confidential Information and Trade Secrets, Customer Data, any Documentation or Materials and Improvements thereto authored, conceived, created, delivered, designed, developed, or prepared, solely or collaboratively with Persons other than Tooth Teller, by or on behalf of Customer and provided to Tooth Teller, and all Intellectual Property Rights embodied in the foregoing.
  9. “Confidential Information” means any proprietary data or information, whether oral, written or in any electronic, visual or other medium, whether constituting a Trade Secret or not, that relates to the Discloser, the Discloser’s Affiliates, or their activities, business, suppliers, or customers, that is of value to the Discloser, the Discloser’s Affiliates or their Customers and is not generally known to Persons outside of the Discloser, the Discloser’s Affiliates or their Customers.  By way of example and not limitation, Confidential Information includes non-public, technical or non-technical data developed by the Discloser or the Discloser’s Affiliates; formulas; patterns; compilations; programs; devices; know how; designs; methods; techniques; drawings; processes; methods; financial data; financial plans; product plans; list of actual or potential customers, vendors and/or employees; customer needs, preferences or contracts; Personal Data; lists of any information about marketing techniques; actual or potential advertising materials, trademarks, services marks and trade dress; computer software (including, but not limited to, algorithms, application program interfaces, computer programs, rule logic and code, database mapping code, and user interfaces) whether in source code or object code; training and user manuals; price lists; pricing policies; margin data; business methods and systems; expansion or contraction plans; private personnel information (such as social security numbers and medical information); information about the Discloser’s and the Discloser’s Affiliates’ methods of doing business or information regarding the financial aspects of the Discloser’s and the Discloser’s Affiliates’ business such as budget, costs, financial statement information, sales, financial projections, and other financial information; processes developed by the Discloser and/or the Discloser’s Affiliates to gather data and execute projects; information regarding business opportunities for new or developing businesses for, and business and marketing plans,  strategic plans of, the Discloser and/or the Discloser’s Affiliates (including, but not limited to, plans for new products or services); contract negotiations; any technological innovations by the Discloser and the Discloser’s Affiliates. Confidential Information also includes any compilation or organization of information which, divided into individually segregated segments, may not be deemed confidential but in its organized completed format is unique, proprietary and confidential to the Discloser and/or the Discloser’s Affiliates.  Additionally, Confidential Information includes any information described in this provision which the Discloser obtains from another Person which the Discloser treats as proprietary or designates as confidential information, whether or not owned or developed by the Discloser.  Confidential Information may be marked as “Confidential,” but failure to mark any Confidential Information as confidential will not affect its status as Confidential Information under this Agreement.  The term “Confidential Information” does not include any materials or information of the types specified above to the extent that such materials or information:  (a) are or become publicly known or generally utilized by others without violation of this Agreement; or (b) as established by reasonable documentary evidence, are known to Recipient, prior to the receipt of such materials or information from or on behalf of the Discloser; or (c) are furnished to others by Discloser with no restriction on disclosure; or (d) are rightfully received from another Person without any breach of this Agreement or such other Person’s obligations of confidentiality.
  10. “Control” means, with respect to any Person, the power to direct the management and policies of such person or entity, whether directly or indirectly, and whether through the ownership of voting interests, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative to the foregoing.
  11. “De-Identified Data” has the meaning set forth in Section 6(B) of this Agreement.
  12. “Designated Purpose” means the Recipient’s use of the Confidential Information and Trade Secrets of the Discloser for the sole purpose of the Recipient performing the Recipient’s obligations under this Agreement or using the Services received under this Agreement, subject to the conditions, obligations and terms of this Agreement.
  13. “Discloser” means the Party disclosing Confidential Information or Trade Secrets to the Recipient.
  14. “Documentation” means user guides and manuals, handbooks, training materials and all other printed or electronic materials relating to or describing the Services and/or access and use of the Services.
  15. “E-Sign Act” has the meaning set forth in Section 13(O) of Exhibit A to this Agreement.
  16. “Feedback” has the meaning set forth in Section 6(D) of Exhibit A to this Agreement.
  17. “Fees” has the meaning set forth in Section 3(A) of Exhibit A to this Agreement.
  18. “Force Majeure Event” has the meaning set forth in Section 14(B) of this Agreement.
  19. “HIPAA” means the Health Insurance Portability and Accountability Act.
  20. “Improvement” means any additions, enhancements, improvements, derivatives, modifications, updates and upgrades of any existing Material.
  21. “Intellectual Property Right” and “Intellectual Property Rights” means (a) all copyright rights under the copyright laws of the United States and all other countries for the full term thereof (and including all rights accruing by virtue of bilateral or international copyright treaties and conventions), including, but not limited to, all renewals, extensions, reversions or restorations of copyrights now or hereafter provided for by law and all rights to make applications for copyright registrations and recordations, regardless of the medium of fixation or means of expression and expressly including computer software (including, without limitation, application program interfaces, code, database mapping protocols, instructions, programs, routines, scripts and/or user interfaces) whether in source code or object code; (b) all rights to and under all new and useful apparatus, concepts, discoveries, designs, ideas, inventions, know how, methods, procedures, processes, computer software (including, without limitation, application program interfaces, code, database mapping protocols, instructions, programs, routines, scripts and/or user interfaces), technology and art, including, but not limited to, all improvements thereof, including all letters patent and patent applications in the United States and all other countries (and all letters patent that issue therefrom) and all reissues, reexaminations, extensions, renewals, divisions and continuations (including continuations-in-part and continuing prosecution applications) thereof, for the full term thereof; (c) all statutory and common-law trademark and service mark rights, together with all of the goodwill associated therewith, and all applications and registrations to issue therefrom under all intellectual property laws of the United States and all other countries for the full term and any renewals thereof; (d) Internet domain names and applications therefore and URLs; (e) electronic or other databases, to the extent protected by intellectual property or other law in any jurisdiction; (f) all Trade Secrets; (g) all Confidential Information; (h) all rights of publicity and moral rights which may be assigned or waived; and (i) worldwide intellectual property rights, industrial property rights and proprietary rights not otherwise included in the foregoing, including, without limitation, all trade dress, algorithms, concepts, data, databases, methods, processes, and protocols.
  22. “Law(s)” means with respect to any Party, in each case to the extent applicable to such Party, its property, the Services or in connection with this Agreement, any federal, national, provincial, state, county, municipal or local law, ordinance, statute, rule, regulation, code, policy, notice, treaty, judgment, executive order, decree, injunction, permit, issuance or other determination or finding of any governmental authority which is legally enforceable by a governmental entity.
  23. “Materials” means any and all algorithms, audio works, audio-visual works, blueprints, business methods, creative works, compositions of matter, computer and communications hardware, computer software (including, without limitation, application program interfaces, code, database mapping protocols, instructions, programs, routines, scripts and/or user interfaces), concepts, configurations, content, creative works, data, deliverables, designs, diagrams, discoveries, documents, drawings, enhancements, equipment, flowcharts, formulae, graphics, hardware, ideas, improvements, information, innovations, inventions, knowledge, know-how, layouts, literary works, maps, methods, modifications, photographs, procedures, processes, products, requirements, rules and compilations of rules, services, specifications, systems, techniques, works, works of authorship, and other business, financial and technical information, any combinations thereof and other tangible and intangible materials, in whatever form or media, whether now existing or developed in the future, and whether existing singularly or in combination with other information or materials
  24. “Person” shall mean any individual, partnership, firm, corporation, association, trust, unincorporated organization, or other entity, as well as any syndicate or group that would be deemed to be a person under Section 13(d) of the Securities Exchange Act of 1934, as amended.
  25. “Personal Data” means the “non-public personal information” of the “patients” (as such term is defined in HIPAA), and employees of Customer which Tooth Teller holds or accesses from time to time.
  26. “Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Customer Data, whether or not by automatic means, such as access, adaptation, aggregation, alteration analysis, collation, collection, compilation, consultation, copying, create derivative works based on, deleting, disclosure by transmission, dissemination, displaying, interpretation, organization, modification, recording, retrieval, storage, use, viewing, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
  27. “Processor” has the meaning set forth in Section 4(F)(iii) of Exhibit A to this Agreement.
  28. “Recipient” means the Party receiving Confidential Information or Trade Secrets from the Discloser.
  29. “Required Disclosure” has the meaning set forth in Section 5(B)(v) of Exhibit A to this Agreement.
  30. “Reporting” means any invoices, receipts, reports and other documentation and reporting that may be generated by Customer using the Subscription Services, including, without limitation, any reports, target lists, and payment plans.
  31. “Representatives” means the agents, advisors, employees, directors, officers, managers, members of a Party and such Party’s Affiliates, as applicable.
  32. “Services” means the services specified in an Order or this Agreement to be provided by Tooth Teller to Customer, which services may include, subject to the conditions, obligations and terms of the Agreement, (i) providing Customer with access to and use of the Subscription Services; and (ii) professional services, including, consulting, custom programming, data conversion, implementation, project management, program modifications, support services, and training.
  33. “Subscription License” has the meaning set forth in Section 2(A) of Exhibit A to this Agreement.
  34. “Subscription Services” means Tooth Teller’s proprietary, software-as-a-service applications, modules, platform, tools, and related services for payment processing and dental practice management, as more fully specified in the Order, together with any Improvements thereto implemented by Tooth Teller in the future.
  35. “Systems and Applications” means the computer hardware and software systems controlled, leased, licensed or owned by Tooth Teller and employed by Tooth Teller for the purpose of providing the Services to Customer as set forth in one or more Orders to be entered into pursuant to this Agreement from time to time, including, without limitation all algorithms, application program interfaces, code, database mapping protocols, instructions, programs, routines, rules, scripts, user interfaces and all reports and files obtained by Customer from the Services.
  36. “Tooth Teller Indemnitees” has the meaning set forth in Section 11(A) of Exhibit A to this Agreement.
  37. “Tooth Teller Materials” means all Access Protocols, De-Identified Data, Tooth Teller Confidential Information and Trade Secrets, the Services (including, without limitation, the Subscription Services), Systems and Applications, Usage Data, the Widget and any Documentation or Materials and Improvements thereto authored, conceived, created, delivered, designed, developed, or prepared, solely or collaboratively with others, by or on behalf of Tooth Teller, and all Intellectual Property Rights embodied in the foregoing.
  38. “Taxes” has the meaning set forth in Section 3(C) of Exhibit A to this Agreement.
  39. “Term” has the meaning set forth in Section 9(A) of Exhibit A to this Agreement.
  40. “Third-Party Product(s)” means all hardware, software, communications devices, communications services, and other goods and/or services required for Customer’s use of the Services.
  41. “Trade Secrets” mean all tangible or intangible information regarding Discloser or Discloser’s Affiliates or their activities that meets the definition of “trade secrets” under the federal Defend Trade Secrets Act (“DTSA”) and/or under the Delaware Uniform Trade Secrets Act (6 Delaware Code § 2001 et seq.) (“DEUTSA”).
  42. “UETA” has the meaning set forth in Section 13(O) of Exhibit A to this Agreement.
  43. “Usage Data” has the meaning set forth in Section 6(C) of Exhibit A to this Agreement.
  44. “Widget” has the meaning set forth in Section 4(E) of Exhibit A to this Agreement.