Dentofacial Terms of Service
Last Updated May 24, 2011
This Terms of Service Agreement ("Agreement") is a legally binding agreement between you (hereinafter referred to as "You" or "you") and Dentofacial Research Inc. ("Dentofacial"). This Agreement sets forth the terms and conditions ("Terms") for your use of Dentofacial’s software, services, products and web sites (collectively, the "Services"). The software provided to you by Dentofacial as part of the Services is referred to as the "Software" in this document.
Dentofacial has established a closed beta testing program (the "Beta Program") to, among other things, allow a limited number of people to test, at Dentofacial’s sole discretion, the features and capabilities of the Services and to give feedback and comments to Dentofacial regarding the Services.
Please read this Agreement carefully. In order to become part of the Beta Program and use the Services, you must first agree to the Terms. If you do not accept the Terms, you may not use the Services. By using the Services, you are agreeing to be bound by the Terms.
1. Beta Program
1.1 You represent and warrant that you are not a principal, officer, director, employee, agent or independent contractor of any developer or publisher of cephalometric or imaging software other than Dentofacial ("Competitor"). You further represent and warrant that you are not a consultant or beta tester for or in any way affiliated with (other than as a user) any Competitor. You represent and warrant that you are entering into this Agreement on a completely voluntary basis with no expectation of any form of compensation whatsoever.
1.2 You acknowledge that the Beta Program shall run from the time you access, download or otherwise use the Services, and shall end upon the expiration of the Beta Program, unless otherwise extended or terminated unilaterally by Dentofacial at Dentofacial’s sole discretion. Furthermore, Dentofacial may, in its sole discretion for any reason and at any time during the Beta Program terminate your participation therein without any form of compensation due to you whatsoever for this termination.
1.3 You acknowledge that in becoming part of the Beta Program, Dentofacial is providing you with access to the Services and that Dentofacial has not made any other promises, whether express or implied regarding any other form of consideration for your participation in the Beta Program.
1.4 By submitting any comments, feedback, suggestions or foreign language translations to Dentofacial ("Feedback"), you warrant and represent that you own or otherwise control the rights necessary to do so. You acknowledge and agree that: (a) Dentofacial may use such Feedback in any manner and without limitation; (b) you are not entitled to any compensation or reimbursement of any kind from Dentofacial under any circumstances; and (c) any such Feedback will become the property of Dentofacial.
1.5 Dentofacial may, in its sole discretion, terminate the Beta Program at any time.
1.6 You agree that your participation in the Beta Program does not constitute an employment Agreement or offer of such an agreement between you and Dentofacial and that your participation in the program is strictly voluntary. You may terminate your participation in the Beta Program at any time.
2. License
2.1 Subject to the Terms, Dentofacial grants you a personal, limited, non-exclusive, non-assignable license to use the Software. The Software is licensed, but is not sold to you. Your license of, use of and access to the Software is conditioned upon your compliance with the Terms.
2.2 You agree that the Software is licensed to you for your personal, non-commercial use only and you agree not to sell, trade, assign, rent, lend, lease, distribute, sublicense or otherwise transfer any part of your rights to use the Software, in whole or in part, in any form to any third party.
3. Proprietary Rights and Ownership
3.1 You acknowledge and agree that Dentofacial and its suppliers own all right, title and interest, for all jurisdictions, in and to the Services, including all intellectual property in the Services and all copyrights in and to the Software. Your rights to use the Services are specified in this Agreement and Dentofacial and its suppliers reserve all rights not expressly granted to you.
3.2 Dentofacial does not claim any ownership rights in any data, text, information, messages, images, video, datasets or other materials, including patient health information or records, that you upload, post, email, transmit or otherwise make available through the use of the Services (referred to collectively as "Content" herein). However, you grant Dentofacial a world-wide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt and display such Content on the Services solely for the purposes of providing and promoting the Services. This licence exists only for as long as you elect to continue to include such Content on the Services and will terminate at the time you remove or Dentofacial removes such Content from the Services.
4. Restrictions
4.1 You agree not to reverse engineer, disassemble, decompile, or otherwise attempt to extract the source code of the Software or any part thereof or in any way attempt to discover or reconstruct any underlying ideas or algorithms of any part of the Services;
4.2 You agree not to decipher or in any way discover or obtain the Dentofacial communications protocol, and you agree not to decrypt or modify any data transmitted or received through the use of the Services;
4.3 You agree not to alter, merge, modify, translate, adapt or hack the Services, and you agree not to create derivative works based upon the Services.
4.4 You agree not to remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services.
4.5 You agree not to use the Services in any manner that could impair or interfere with any other individual's use of the Services.
4.6 You agree not to build a similar or competitive product or service or develop any other materials, products or services containing any of the concepts or ideas contained in the Software or Services.
4.7 You agree not to use or offer the Software on a service bureau basis;
4.8 You agree not to authorize, allow or assist any third party to do any of the things described in this section.
5. Confidentiality
5.1 You acknowledge and agree that the Services constitute and contain valuable proprietary information and trade secrets of Dentofacial, and embodies substantial creative efforts and confidential information, ideas, and expressions.
5.2 Accordingly, you agree (a) to protect the Services from unauthorized dissemination and use; (b) to use the Services only for the performance of your obligations and in connection with the exercise of your rights hereunder; (c) not to disclose or otherwise provide to any third party, without the prior written consent of Dentofacial, the Services or any part or parts thereof; and (d) to undertake whatever action is necessary to prevent or remedy (or authorize Dentofacial to do so in your name) any breach of your confidentiality obligations set forth herein.
6. Your Account and Passwords
6.1 You agree to provide true and accurate account information when you sign up with Dentofacial and you agree to update and maintain this information to keep it current.
6.2 You understand and agree that you are responsible for maintaining the confidentiality of your password and you agree that you are fully responsible for any activity that occurs under your user name. You agree to immediately notify Dentofacial of any unauthorized use of your account or password or any other breach of security.
7. Privacy Policy
7.1 Your personal information is subject to Dentofacial’s Privacy Policy. For more information, see our full privacy policy at www.dentofacial.com/privacy.php.
7.2 You understand that through your use of the Services you consent to the collection, use and disclosure of this information, only as permitted by the Privacy Policy, including the transfer of this information to Canada, the United States and/or other countries for storage, processing, and use by Dentofacial and its affiliates in order to provide the Services to you.
8. Your Conduct
8.1 You agree that you are entirely responsible for any Content. Before uploading a patient's records to the Site, you will obtain from the patient, and you represent to us that you have obtained from the patient, all consents that are required by law or contract.
8.2 You warrant that, prior to uploading, posting, emailing, transmitting or otherwise making available a patient’s health information or records to any Dentofacial web site or server, you will obtain from the patient and/or responsible party, and you represent to Dentofacial that you have obtained from the patient and/or responsible party, any and all consents required by law or contract.
8.3 You understand that Dentofacial does not control and cannot be responsible for any Content posted through the use of the Services and you understand that you may be exposed to Content that is offensive or objectionable. You agree to use the Services at your own risk.
8.4 You agree, in your use of the Services, not to violate any laws in your jurisdiction, including but not limited to privacy laws, copyright laws and local laws, regarding online conduct and acceptable content.
8.5 You agree that you will not use the Services to create, upload, post or transmit: (a) any Content that is unlawful, abusive, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable; (b) any Content that infringes the intellectual property rights of any party; (c) any Content that contains any viruses or worms or any code of a malicious or destructive nature; or (d) any spam or junk mail to any Members.
8.6 Dentofacial may, but has no obligation to, remove Content and accounts containing Content that violate the Terms.
8.7 You consent to Dentofacial disclosing your account information and Content if required by law or in the good faith belief that such disclosure is reasonably necessary to respond to claims that any Content violates the rights of any party.
9. Automatic Updates
9.1 From time to time, your web browser may automatically download and install modifications, fixes, patches, new versions or other updates of or to the Software ("Updates"). You agree to receive such Updates and you agree that any such Updates are subject to the Terms.
10. Links to Other Websites
10.1 The Services may include links to other websites or resources, over which Dentofacial has no control. You acknowledge and agree that Dentofacial is not responsible for the availability of any such external websites or resources, and does not endorse any advertising, products or other materials on or available from such websites or resources.
10.2 You further acknowledge and agree that Dentofacial is not liable, directly or indirectly, for any loss or damage caused by or in connection with use of or reliance on any advertising, products or other materials on or available from such websites or resources.
11. Changes to the Agreement
11.1 Dentofacial may modify the Agreement from time to time and such modification shall be effective when posted by Dentofacial on the Dentofacial website at www.dentofacial.com/terms.php.
11.2 You understand and agree that your continued use of the Services after the Agreement has been changed signifies your acceptance of the revised Agreement. Please review this Agreement regularly to make sure you are aware of any changes.
12. Membership Fees
12.1 Membership fees for the use of the Services, including renewal fees, are assessed on an annual basis and must be paid in full in advance of the initial activation of your account or your annual renewal date.
12.2 It is your responsibility to verify the status of your account with Dentofacial and to pay renewal fees on or before the annual renewal date. If you fail to pay any fee when due, Dentofacial may immediately and without notice terminate this Agreement as provided in Section 15 below.
12.3 Dentofacial reserves the right to change its fees or billing methods at any time without prior notice.
13. Termination
13.1 The Terms will continue to apply until terminated by either you or Dentofacial as set out below.
13.2 You may terminate this Agreement at any time and for any reason, without prior notice. You may do so by sending notice of termination, in writing, to Dentofacial’s address listed at www.dentofacial.com/contact.php.
13.3 Dentofacial may terminate this Agreement and your use of the Services at any time without prior notice and for any reason including, without limitation, (a) violation of any provision of the Terms, (b) nonpayment of any fees owed by you in connection with the Services, or (c) requests by law enforcement or other government agencies. Dentofacial may also, in its sole discretion and at any time, discontinue providing the Services, or any part thereof, with or without notice.
13.4 You acknowledge and agree that upon termination, Dentofacial may immediately deactivate your account and remove and discard all Content associated with your account.
13.5 You agree that Dentofacial and its suppliers are not liable to you or any third-party for termination of your access to the Services.
13.6 In the event of termination, you agree to be bound by the terms of the following sections of this Agreement, which will remain in full force and effect with respect to you: 3, 4, 5, 13, 14, 15, 16, 17.
14. DISCLAIMER OF WARRANTIES
14.1 DENTOFACIAL PROVIDES THE SERVICES "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DENTOFACIAL AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DENTOFACIAL AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, BE RELIABLE, ACCURATE, ERROR-FREE, FREE FROM VIRUSES, AVAILABLE, UNINTERRUPTED, SECURE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.
15. LIMITATION OF LIABILITY
15.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DENTOFACIAL OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, LOSS OF PRIVACY, BUSINESS INTERRUPTION, PERSONAL INJURY, NEGLIGENCE, FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) HOWEVER CAUSED, OR FOR ANY CLAIM BY ANY THIRD PARTY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF OR INABILITY TO USE THE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF DENTOFACIAL OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF DENTOFACIAL AND ANY OF ITS SUPPLIERS AND YOUR SOLE AND EXCLUSIVE REMEDY UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO DENTOFACIAL FOR YOUR USE OF THE SERVICES IN THE ONE YEAR PRECEDING THE DATE ON WHICH YOU NOTIFY DENTOFACIAL OF SUCH DAMAGES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
16. Indemnification
16.1 You agree to indemnify and hold harmless Dentofacial and its directors, officers, affiliates, employees and suppliers from and against any claim, demand or damage of any kind, including reasonable legal fees, made by you or by any third party arising from or in any way related to your use or misuse of the Services, your violation of the Terms, or your violation of any rights of another.
16.2 You acknowledge that you have executed a Dentofacial Indemnification Agreement. You agree that your obligations pursuant to that agreement also form part of this Agreement and are enforceable together with or independently from this Agreement.
17. General Provisions
17.1 Except as expressly stated herein, this Agreement constitutes the entire agreement between you and Dentofacial with respect to the Services and it supersedes all prior agreements, whether electronic, oral, or written, between you and Dentofacial with respect to the Services.
17.2 This Agreement is governed by the laws in force in 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 Services. This Agreement 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 Use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this section.
17.4 If any provision of this Agreement is held to be void, invalid, unenforceable, or illegal, the other provisions shall continue in full force and effect.
17.5 You agree that you may not assign or transfer this Agreement or your rights hereunder.
17.6 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.
17.7 You agree that Dentofacial may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
17.8 You agree that if Dentofacial does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Dentofacial has the benefit of under any applicable law), this will not be taken to be a formal waiver of Dentofacial’s rights and that those rights or remedies will still be available to Dentofacial.
17.9 The parties hereby confirm that they have requested that this Agreement and all related documents be drafted in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.