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Dentofacial Planner Software License Agreement
Last Revised: February 11, 2009
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE DENTOFACIAL PLANNER SOFTWARE. THIS LICENSE SETS OUT STRICT TERMS AND CONDITIONS ("TERMS") REGARDING YOUR USE OF THE SOFTWARE (AS DEFINED BELOW) AND THE USE, BY ANY OTHER PERSON, OF THE SOFTWARE INSTALLED ON YOUR COMPUTER SYSTEMS. THIS LICENSE LIMITS THE LIABILITY OF DENTOFACIAL SOFTWARE AND OBLIGATES YOU TO INDEMNIFY DENTOFACIAL SOFTWARE IN ACCORDANCE WITH THE TERMS.
YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE SOFTWARE. CLICK "DISAGREE/CANCEL" AND RETURN THE SOFTWARE FOR A REFUND.
Dentofacial Software reserves the right, in its sole discretion, to change or modify any of the terms and conditions of this License at any time without further notice. If Dentofacial does this, the revised License will be posted on its website located at www.dentofacial.com (the “Site”) and will indicate the date this License was last revised. Your continued use of the Software after any such changes constitutes acceptance of and agreement to such updated terms. You agree to regularly check the Site to determine if there have been changes to this License and to review such changes.
1.1 Dentofacial Software. Dentofacial Software is a business name of Thoughtslinger Corporation. This is a binding legal agreement between You (as defined below) and Thoughtslinger Corporation (referred to herein as "Dentofacial").
1.2 You. You, the licensee, are referred to herein as "You" and by the terms "Your", "Yourself" and other similar terms. You must be a single legal entity, such as an individual person or a corporation.
If you (without capitalization) are an individual person who is reviewing this License on behalf of another legal person, such as your employer, and if you accept this License on behalf of that other legal person, you hereby certify that you have the authority and capacity to do so. If you are not permitted to accept this License on behalf of the other legal person, but do so anyway, Dentofacial may take action against you personally for any losses it is unable to recover from the other legal person. By accepting this License, you agree that you will be liable for any such losses.
In this License, the following terms have the following meanings:
(a) "Competitor" means any individual, corporation or other entity that is in the business of providing cephalometric and/or imaging software to orthodontists and/or oral and maxillofacial surgeons.
(b) "Content" means files, text, images, material, messages, information and other data uploaded, downloaded, posted, sent or received through the use of the Software.
(c) "Effective Date" means the later of (i) the date on which the Software is provided to You, or (ii) another date that You are notified of by Dentofacial.
(d) "Protocol" means the Dentofacial communications protocol.
(e) "Software" means the software that accompanies this License, any corresponding documentation, and all Updates (as defined in section 9).
(f) "User" means You or any individual whose use of the Software You sponsor.
(g) "Community" means other licensees of the Software and all Dentofacial developers, employees and representatives.
(h) "Authorized Practitioner" means a professional practitioner who has executed a Dentofacial Software Indemnification Agreement and has delivered an original copy of such agreement to Dentofacial.
Subject to the Terms and Conditions set out in this License, Dentofacial grants You a non-exclusive, non-transferable, limited license to use the Software during the Term on a single designated computer system, without the right to sub-license. The Software is licensed, not sold, to You.
You may not:
(i) copy, reverse engineer, decompile, disassemble, translate, modify, merge or create derivative works of the Software in whole or in part;
(ii) rent, disclose, publish, sell, assign, lease, sublicense, market, or transfer the Software or any part thereof or use the Software in any manner not expressly authorized by this License;
(iii) decipher or in any way ascertain or obtain the Protocol, and You may not decrypt or modify any Content; or
(iv) transfer any of the rights, duties or obligations to any third party except as expressly provided for in this License.
The Software contains confidential information and trade secrets that are proprietary to Dentofacial. You shall at all times take all reasonable steps to protect the confidentiality of such information. You will not use the Software to develop any software or other technology, including, without limitation, software or technology having the same function as all or part of the Software. You will not use the Software in any development or test procedure that seeks to develop any software or other technology, or to determine if any other software or technology performs in a manner similar to the Software. You may not authorize or assist any third party to do any of the things that You are prohibited from doing under this License.
Under this License, You do not receive any proprietary interest in the Software. All right, title and interest including all ownership rights and all related intellectual property rights, including all copyrights, inventions, trade marks, in and to the Software and any copies thereof are and will remain the sole and exclusive property of Dentofacial.
Dentofacial reserves all rights not expressly granted to You in this License. The Software is protected by copyright, patent, trade mark and other intellectual property laws and treaties. You may not delete or in any manner alter the copyright, trademark, or other proprietary rights notices of Dentofacial or any other entity, if any, appearing on or in the Software, in screen outputs or prints generated by the Software as delivered to You. You shall reproduce such notices on all copies You make of any output made using the Software.
7.1 TERM AND AUTOMATIC RENEWAL
The Term of this License includes an Initial Term and may include one or more Renewal Terms. The Initial Term of this License begins on the Effective Date and continues for one year. Following the Initial Term or any Renewal Term, this License will automatically be extended for a Renewal Term, unless it is terminated as permitted below. Each Renewal Term will commence immediately after the preceding Initial Term or Renewal Term and continue for one year.
7.2 TERMINATION
7.2.1 Termination by Either Party. Either party may terminate this License at any time and for any reason, with or without notice.
7.2.2 Automatic Termination. If this License is automatically terminated through the operation of one of its provisions, whether the results of an event that You or Dentofacial could have controlled or otherwise, You will immediately contact Dentofacial to report the change in situation or circumstances leading to the automatic termination of this License.
7.2.3 Actions on Termination. In the event of termination for any reason, You will immediately cease using the Software, You will remove the Software from any computer on which it is installed and You will destroy all Software in Your possession.
7.2.4 Survival. Notwisthstanding anything else in this License, the following clauses will survive termination of this License:
1. PARTIES, AUTHORITY
2. DEFINITIONS
4. RESTRICTIONS
5. CONFIDENTIAL INFORMATION
6. PROPRIETARY RIGHTS
7.2.4 Survival
10. FEEDBACK
13.1 Your Indemnification
14. DISCLAIMER OF WARRANTIES
15. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES
16. LIMITATION OF LIABILITY AND REMEDIES
17. GENERAL
You agree to pay an Initial Term License Fee in an amount set by Dentofacial for the Initial Term. For each Renewal Term, You agree to pay a Renewal Licence Fee in an amount to be determined by Dentofacial. Dentofacial will send You notification setting out the Renewal License Fee for each Renewal Term.
The Renewal License Fee must be paid by pre-authorized credit card or by another means expressly authorized by Dentofacial. You must supply valid credit card information at the time this License is entered into. If Your credit card is not authorized for any Renewal License Fee, You agree to provide updated valid credit card information in a timely manner.
The Software may connect via the Internet to Dentofacial systems automatically, without notice to You, for various purposes including providing upgrades to the Software and to record usage information. You hereby agree that Dentofacial may automatically check the version of the Software that You are using and may provide updates, corrections, enhancements and new releases of the Software ("Updates") that will be automatically downloaded to Your computer. You may be given to opportunity to not install some of these Updates. You understand and acknowledge that if You choose not to accept an Update, You may be unable to continue to use the Software or access or recover Content stored on Your or any other computer.
Should You provide Dentofacial with information including but not limited to feedback, data, answers, questions, comments, suggestions, plans, ideas or the like, such information shall be deemed to be non-confidential and Dentofacial assumes no obligation to protect such information from disclosure. The submission of such information to Dentofacial shall in no way prevent the purchase, manufacture or use of similar products, services, plans and ideas by Dentofacial for any purpose whatever and by such submission You grant to Dentofacial the irrevocable right to reproduce, use, disclose and distribute the information to others without restriction or compensation to You.
Technical support is not included in the License Fees for the Software. Technical support is available via telephone and/or electronic communication. The rates for such support will vary and will be charged at the rates in force when such support is provided.
Documentation and other support information is available to Users online at the Site. Information that You obtain online is provided on an as-is basis with no warranty or liability. If You choose to rely on such information, You assume all risk or liability associated with doing so.
You agree that by any behaviour by any User or by any of Your employees, associates, residents or supervised students towards any member of the Community that is deemed, at Dentofacial's sole discretion, as extreme, disruptive, or offensive, may result in termination of this License.
You represent and warrant that You are not a Competitor nor are you an owner, director, partner or employee of, consultant or advisor to, beta tester or trainer for, or otherwise related to or affiliated with any Competitor in any way. If You become related to or affiliated with any Competitor, You agree to notify Dentofacial immediately and you agree that this License will terminate automatically and the provisions of section 7.2 will apply.
13.1 Your Indemnification. You acknowledge that You have executed a Dentofacial Software Indemnification Agreement. You agree that Your obligations pursuant to that agreement also form part of this License and are enforceable together with or independently from this License.
13.2 Indemnification by Third Parties using the Software. You hereby represent and warrant that You will limit use of and access to the Software on the single computer system referred to in section 3 to Authorized Practitioners and to Your employees, residents, or supervised students.
DENTOFACIAL PROVIDES THE SOFTWARE "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. DENTOFACIAL MAKES NO WARRANTY THAT THE OPERATION OF THE SOFTWARE, THE UPDATE PROCESS, OR RESULTS OBTAINED FROM USING THE SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES, WORMS, TROJAN HORSES OR ANY OTHER MALICIOUS CODE, ERROR FREE, OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT. DENTOFACIAL DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR CORRESPONDENCE TO DESCRIPTION WITH REGARD TO THE SOFTWARE.
IN NO EVENT SHALL DENTOFACIAL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS LICENSE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF DENTOFACIAL, AND EVEN IF DENTOFACIAL OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF DENTOFACIAL UNDER ANY PROVISION OF THIS LICENSE AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE LICENSE FEE PAID TO DENTOFACIAL BY YOU IN THE TWO YEARS PRECEDING THE DATE ON WHICH YOU NOTIFY DENTOFACIAL OF SUCH DAMAGE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
17.1 Choice of Law. This License is governed by the laws of the Province of Ontario, Canada. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in Toronto, Ontario, Canada in all disputes arising out of or relating to the use of the Software. Use of the Software is unauthorized in any jurisdiction that does not give effect to all provisions of this License, including without limitation this paragraph.
17.2 UN Convention Not Applicable. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
17.3 Severance. If any provision of this License is held to be void, invalid, unenforceable, or illegal, the parties shall cooperate to give full force and effect to the remaining provisions in accordance with the spirit and intent of the License.
17.4 Headings. Headings used in this License are for convenience only and will not be used to limit the interpretation of the License.
17.5 Entire Agreement. Unless otherwise specified herein, this License constitutes the entire agreement between You and Dentofacial with respect to the Software and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between You and Dentofacial with respect to the Software.
17.6 Assignment. You may not assign or transfer this License or Your rights hereunder, and any attempt to the contrary is void. You agree that no joint venture, partnership, employment, or agency relationship exists between You and Dentofacial as a result of this License or use of the Software.
17.7 Subject to Laws. Dentofacial's performance of this License is subject to existing laws and legal process, and nothing contained in this License is in derogation of Dentofacial's right to comply with governmental, court and law enforcement requests or requirements relating to Your use of the Software or information provided to or gathered by Dentofacial with respect to such use.
17.8 Admissibility of Electronic License. A printed version of this License and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this License to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
17.9 Export Controls. You acknowledge that the Software, and any accompanying documentation and/or technical information, may be subject to applicable export control laws and regulations of Canada, the United States and other countries. You agree not to export or re-export the Software, directly or indirectly, to any countries that are subject to Canadian, United States or other export restrictions for any type of software.
17.10 English Language. It is the express wish of the parties that this License and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
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