SMILE VIRTUAL CONSULT, LLC
Customer Subscription Agreement
Last Modified: 11/19/18
If you would like to see past versions of the Smile Virtual Consult, LLC Customer Subscription Agreement, please contact us at firstname.lastname@example.org and we would be happy to provide you with a copy of any prior version.
Section 1. Applicability of this Customer Subscription Agreement
Smile Virtual Consult, LLC (“SVC”) provides a web-based solution that connects potential patients interested in learning more about how to improve their smile with potential health care providers (the “SVC Service”). The SVC Service is free to potential patients, but health care providers (each a “Customer”) must purchase a subscription. This Customer Subscription Agreement is a legally binding contract between SVC and each of its Customers. If you are a potential patient or Authorized User (as defined below) of the SVC Service, please see the User Agreement, which governs your use of the SVC Service. If you have any questions over this document or what legal terms apply to your use of the SVC Service, please contact SVC at email@example.com.
Section 2. Acceptance and Modification of this Customer Subscription Agreement.
The SVC Service is offered and available to users who are eighteen (18) years of age or older. You represent and warrant that you are of legal age to form a binding contract with SVC.
Also, please note that we may revise and update this Customer Subscription Agreement from time to time in our sole discretion. Unless set forth otherwise at the time of posting, all changes are effective immediately when posted and apply to all access to and use of the SVC Service thereafter. Your continued use of the SVC Service following the posting of changes means that you accept and agree to the changes. It is your responsibility to check this Customer Subscription Agreement periodically for changes, as these changes are binding on you.
NOTICE REGARDING DISPUTE RESOLUTION: This Customer Subscription Agreement contains provisions that govern the resolution of claims between you and SVC. It also includes an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration. Unless you opt out, you will only be able to pursue claims against SVC on an individual basis, not as part of any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
Section 3. Definitions
This Customer Subscription Agreement ("Agreement") uses the following definitions:
“Authorized User” means any of your employees, consultants, contractors or agents authorized by your administrator to access and use the SVC Service on behalf of your business, in each case subject to such person’s agreement to be bound by the terms of this Agreement. For the avoidance of any doubt, Authorized User does not include any potential patients who you are connected with through the SVC Service.
“Force Majeure” means the occurrence of any event beyond SVC’s reasonable control, including without limitation, an act of God, a labor disturbance, an Internet outage, interruption of service, communication outage, failure by a service provider to SVC, acts of an intervening bad actor, fire, terrorism, natural disaster, or war.
“Personally Identifiable Information” means information which can be used to distinguish or trace an individual’s identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date or birth, mother’s maiden name, etc.
“SVC Materials” means any documentation, user guides or other similar materials provided by SVC to you in connection with your use of the SVC Service.
“SVC Service” means the Smile Virtual Consult solution and/or any of the SVC SaaS solutions that are developed, operated, and maintained by SVC (and its third party service providers) and to which you purchase or otherwise receive a subscription or use rights through SVC or an authorized resale partner. The definition of SVC Service does not include any separate professional Services (as defined below) that you may purchase from SVC.
“Order Form” means any online or written subscription order form for the SVC Service or for Services submitted by you either during an online subscription process or separately signed by you and submitted to SVC, and any future purchase order or order form that makes reference to this Agreement.
“Services” means any implementation, training, coaching or other professional services provided by SVC to you under an Order Form. For the avoidance of any doubt, Services does not include any software-as-a-service offerings or any maintenance or support for software as a service offerings.
“Subscription Term” means the use term for the SVC Service set forth on your Order Form(s).
“Third Party Content” means any third-party content that SVC may make available for your access, reference or use in connection with the SVC Service, including without limitation any content provided by users of the SVC Service.
“Customer Data” means any content or information that is submitted to the SVC Service by your Authorized Users, including registration information, information concerning your Authorized Users and your patients, videos, and clinical data.
Section 4. Use Rights / Restrictions
4.1 Use Rights; Restrictions. On the condition that you comply with all your obligations under this Customer Subscription Agreement and that you ensure that all of your Authorized Users comply with this Customer Subscription Agreement and the User Agreement, SVC grants to you during the Subscription Term the non-transferable (except as permitted below), non-exclusive right to permit your Authorized Users to access and use the SVC Service (and any SVC Materials provided to you). You will, and will ensure that your Authorized Users, comply with the following restrictions: (i) use of the SVC Service may not be on behalf of third parties unless a separate agreement between you and SVC permits use of the SVC Service as a service provider (and in such case limited to use on behalf of customers for whom you have purchased access and use rights); (ii) except as expressly permitted herein, you and your Authorized Users may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the SVC Service or the SVC Materials available to any third party; (iii) you and your Authorized Users may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the SVC Service or SVC Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), (iv) you and your Authorized Users may not access or use the SVC Service or SVC Materials in order to build a similar or competitive product or service; (v) all use of the SVC Service shall conform with the restrictions set forth in the Order Form for the level of subscription purchased by you; (vi) use of the SVC Service must not cause undue strain on the SVC network through any non-standard use; and (vii) use of the SVC Service must comply at all times with this Agreement, applicable federal and state law (including without limitation HIPAA 45 C.F.R. Part 2 (the “Part 2 Regulations”)), and the applicable Order. You acknowledge and agree that your use of the SVC Service may be subject to regulation by a variety of different laws and regulations, including those of jurisdictions where your clients may be located, and that it is your sole responsibility to both research and confirm whether your use of the SVC Service fully complies with such laws and regulations applicably to you and your business. By accessing, using and continuing to use the SVC Service, you represent and warrant to SVC that you will continue to do so in compliance with any and all applicable laws. Your or your Authorized Users’ permission to use the SVC Service may be limited or suspended immediately in SVC’s discretion if SVC believes that this Section has been violated.
4.2 Support. During the Subscription Term, you are entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any additional standard support resources made available by us from time to time for the SVC Service.
4.3 Intellectual Property Rights. SVC and its licensors shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the SVC Service and SVC Materials (including methodologies and business processes used by SVC to develop or provide the SVC Service or SVC Materials), and any and all updates, enhancements, modifications, customizations and future releases and any other changes relating to the foregoing. Except for the limited access and use rights granted pursuant to this Agreement, you do not acquire any interest in the SVC Service or SVC Materials. You agree that if you provide us with any suggestions, enhancement requests or other feedback relating to the SVC Service or the SVC Materials, we may use such suggestions and feedback without restriction or obligation to you.
4.5 Aggregation Services, Limited Data Sets and De-Identified Data. SVC may use Protected Health Information (as defined under HIPAA), including that within your Customer Data, to provide you with data aggregation services (as that term is defined by HIPAA), to create Limited Data Sets (as that term is defined by HIPAA) and/or to de-identify information in accordance with 45 CFR 164.514(a)-(c). You grant a non-exclusive, perpetual, worldwide right to incorporate its Protected Health Information into aggregated data or data sets maintained by SVC and agree that SVC retains any and all ownership claims related to its data sets and the de-identified data it creates from Protected Health Information. SVC may use, during and after this agreement, all aggregated information and de-identified data for purposes of enhancing the SVC Service, technical support and other business purposes, all in compliance with the HIPAA privacy standards and the Part 2 Regulations. SVC may create Limited Data Sets using your Protected Health Information and further use and disclose those Limited Data Sets in accordance with the BAA.
4.6 Rights, Permissions and Consents. You are solely responsible for determining and ensuring that your provision or uploading of patient information into the SVC Service complies with applicable federal, state and local laws. You shall obtain, and will maintain accurate records of, all necessary rights, contracts, permissions and consents from each individual and entity that you contact, uploads Customer Data related to, or in any other manner uses the SVC Service with, as required by all applicable laws and regulations, including without limitation HIPAA and 45 CFR 164.508 and any successor regulation thereto and the Part 2 Regulations. You will immediately stop contacting and remove information related to any individual or entity that no longer wishes to receive contact from you or otherwise withdraws necessary rights, permissions or consents required to maintain such information. Notwithstanding the foregoing, SVC reserves the right to remove immediately from your contact database or otherwise block you from communicating through the SVC Service with any individual or entity identified to SVC by network providers or the authorities as filing a spam report or complaint against you or that contacts SVC directly to request removal from your contact database.
4.7 Use of Service. You understand and agree that the SVC Service is a tool that may be used to assist health care providers in the practice of medicine, but it is not a substitute for competent human intervention or discretionary thinking. You and your Authorized Users agree to use the SVC Service only in accordance with applicable standards of good medical practice. You further agree that you are solely responsible for decisions made in configuring the SVC Services and for the medical decision-making and judgments of your Authorized Users related to the treatment of patients and that SVC has no responsibility or liability therefor.
4.8 Data Backup. SVC Service is programmed to perform data backups of database records. In the event of any loss, destruction, damage or corruption of Customer Data caused by the SVC Service, SVC, as its sole obligation and liability and as your sole remedy, will use commercially reasonable efforts to restore Customer Data from SVC’s most current backup of your Data.
Section 5. Fees
5.1 Fees. The fees for the SVC Service and any additional Services (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and this Agreement. Where payment by credit card is indicated in the Order Form, or you otherwise provide SVC or its designated payment processing vendor with credit card information, you authorize SVC to bill such credit card (a) at the time that you order the SVC Service or other Services set forth in the Order Form, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. If SVC, in its discretion, permits you to make payment using a method other than a credit card, SVC will invoice you at the time of the initial Order Form and thereafter on a recurring basis (for example, monthly or quarterly) in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of your receipt of SVC’s invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less. If SVC utilizes a third party payment processing vendor, then additional terms and conditions will apply to your transactions with such vendor.
5.2 Taxes. You agree to pay all sales, use, value-added, withholding and similar taxes (other than taxes on SVC’s net income) arising from the transactions described in this Agreement, even if such amounts are not listed on an Order Form. To the extent you are exempt from sales or other taxes, you agree to provide SVC, upon request, with the appropriate exemption certificate.
5.3 Non-Payment; Other Suspension Rights. SVC reserves the right, in its reasonable discretion, to suspend your access and/or use of the SVC Service (i) where any payment is due but unpaid and you have been requested but failed to promptly cure such payment failure, or (ii) in the event of a dispute within your organization as to the proper ownership and right to manage your account and SVC is not promptly provided with written instructions from the interested parties associated with your account that fully resolves the dispute. You agree that SVC shall not be liable to you nor to any third party for any suspension of the SVC Service resulting from your non-payment of Fees or from a dispute as to the management rights to your account.
Section 6. Confidentiality; Use Of Names
(a) Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Services or SVC Service, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all non-public business, product, technology and marketing information. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
(b) Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this agreement. Any reproduction of any Confidential Information of the other shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party: (a) shall take commercially reasonable steps to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. Confidential Information of either party disclosed prior to execution of this agreement shall be subject to the protections afforded hereunder.
6.2 Use of Names in Marketing. You may use SVC’s name and credentials in an appropriate and acceptable manner for your standard publicity promotions, provided that you agree to alter such use at SVC’s request where such use is contrary to SVC’s then-current trademark policies or is otherwise objectionable to SVC. Similarly, SVC may use your business name in an appropriate and acceptable manner in connection with representative customer lists, provided that SVC agrees to cease or alter such use at your request where such use is contrary to your branding policies or is otherwise objectionable to you.
Section 7. Term & Termination
7.1 Standard Subscription Term. Unless you and SVC agree to a longer committed Subscription Term as part of a signed Order Form, (a) your initial Subscription Term to the SVC Service will begin upon execution or submission of your Order Form and shall continue on a month to month basis until the Subscription Term is terminated as provided for in this Section 7, and (b) either party may terminate the Subscription Term to the SVC Service without cause by providing thirty (30) days’ prior written notice to the other party. The term of this Agreement will automatically terminate when the Subscription Term is terminated. SVC’s termination rights are in addition to any suspension rights it may have under this Agreement.
7.2 Effect of Termination. Upon termination of the Subscription Term, (a) you agree that any Fees then due and payable to SVC must be paid in full, and (b) if you have executed an Order Form for the right to download data created by you on the SVC Service, then SVC will continue to make your Data available for downloading through the termination date. Following the termination date, SVC may, but is not required to, remove your Data from the production environment for the SVC Service. The provisions of this Agreement which by their nature are intended to survive expiration or termination shall survive, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses.
7.3 Return of Customer Data.
(a) Notwithstanding Section 7.2, SVC shall continue to retain any Customer Data that is Protected Health Information for an additional minimum 60-days after termination of this Agreement (“Data Retention Period”) as a safeguard in the event that you require additional data. To request data from SVC during the Data Retention Period, you should contact firstname.lastname@example.org. If you require support for downloading any data after this agreement has terminated, SVC may charge for such support.
(b) After the Data Retention Period is completed, SVC will return or dispose of Customer Data containing Protected Health Information as set forth in the BAA. You will solely be responsible for complying with all state and federal records retention requirements. This Section does not apply to any data maintained by SVC in an aggregated data set, has been de-identified, or resides in a Limited Data Set (as defined under HIPAA) in accordance with Section 4.5 and the BAA.
(c) An abandoned account means a Customer has discontinued the SVC Service (but has failed to formally terminate its account) by a combination of: (A) non-payment of Fees and (B) 30 consecutive days of no logins to the Service by Customer’s Authorized Users. At the 31st day, SVC will deem the account “Abandoned” and the account shall be terminated. SVC will also deem an account “Abandoned” and terminated if Customer fails to confirm their account via e-mail within 30 days of sign-up. After the account is deemed terminated, the data is held for the Data Retention Period. SVC will then properly dispose of Customer Data containing Protected Health Information as set forth in the BAA or as required by law. Customer will solely be responsible for complying with all state and federal records retention requirements.
Section 8. Warranties / Liability Limitations / Indemnity
8.1 Service Warranties. SVC warrants for a period of thirty (30) days following their delivery that all professional Services provided hereunder (if any) will be performed in a workmanlike manner, in conformity with the professional standards for comparable services in the industry. For any breach of this warranty timely reported by you, your exclusive remedy shall be the re-performance of the deficient Services, and if SVC is unable to re-perform the deficient Services as warranted, you shall be entitled to recover the portion of the Fees paid to SVC for such deficient Services, and such refund shall be SVC’s entire liability.
8.2 SVC Service Warranties. SVC warrants that during the Subscription Term, the SVC Service, when properly used, will operate substantially in accordance with the SVC Materials. SVC does not warrant that your use of the SVC Service will be uninterrupted or error free. If the SVC Service does not meet this limited warranty, you may contact SVC, and your exclusive remedy shall be that SVC shall correct any deficiencies so that the SVC Service substantially performs in accordance with the SVC Materials. The limited warranties set forth in this Agreement do not apply to any deviation of the SVC Service that is caused by, or results from, (i) modification of the SVC Service by anyone other than SVC; (ii) use of the SVC Service for any purpose other than that authorized in this Agreement; (iii) use of the SVC Service in combination with other software, data, or products that are defective or incompatible with, or are not authorized by SVC for use with the SVC Service; (iv) any malfunction of your software, hardware, computers or computer-related equipment; (v) your failure to use any updates to the SVC Service made available to you by SVC; or (vi) an event of Force Majeure.
8.3 SVC No Exclusion Warranty. SVC warrants that it is not excluded from participating in any federal health care program, is not on the sanctions list issued by the Office of the Inspector General of the Department of Health and Human Services pursuant to the provision of 42 U.S.C. § 1320a(7), has not been excluded from government contracts by the General Services Administration, and has not been convicted of a felony or any crime relating to health care.
8.4 Your Warranties and Indemnity. You warrant that your business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations in connection with your use of the SVC Service, and you agree to indemnify and hold SVC harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees), that is based upon (i) your violation of law or breach of this warranty in your use of the SVC Service; (ii) any claim by any third party that Customer Data infringes or misappropriates, as applicable, such third party’s patent, copyright, trade secret or trademark or other intellectual property rights enforceable under applicable laws of any jurisdiction within the United States of America; (iii) any claim of infringement of any patent or copyright or misappropriation of any trade secret in which you or any of your affiliates has a pecuniary or other material interest; (iv) any claim by a third party arising from a compromise, loss or disclosure of Personally Identifiable Information or Protected Health Information; or (v) medical decision-making by you or your Authorized Users, or any of your respective employees, agents or subcontractors.
8.5 Warranty Disclaimers. SVC DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SVC SERVICE OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SVC SERVICES AND PROFESSIONAL SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
8.6 Third Party Content. The SVC Service may now or in the future be bundled with Third Party Content designed to facilitate your use of the SVC Service. SVC does not warrant in any manner and will not be responsible for such Third Party Content and you agree to look solely to the relevant third party provider (and not SVC) if and to the extent that you have any complaints or issues relating to the Third Party Content or its interaction with a SVC Service.
8.7 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL SVC BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL SVC’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT AND THE BAA EXCEED THE AMOUNTS PAID BY YOU TO SVC DURING THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE ALLEGED LIABILITY.
Section 9. General Provisions
9.1 Notice. Notices regarding this Agreement to SVC shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to SVC at the headquarters address shown on our Website, Attn: Contracts Administrator. SVC may give notice applicable to SVC’s general customer base by means of a general notice through the SVC messages portal, and notices specific to you by electronic mail to your designated contact’s email address on record with SVC, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to your address on record in SVC’s account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile or email.
9.2 Assignment. You may not assign this Agreement without providing prior notice to and obtaining the consent of SVC, which shall not be unreasonably denied provided your account is in good standing; provided, further, that the following shall be deemed as assignment for purposes of this Section: (a) any change in control or ownership of you and (b) you undergo a merger, reorganization, transfer, sale of all or some assets or product lines, or any other assignment that occurs by operation of law. Any purported assignment in violation of this Section shall be void.
9.3 Integration; Modification. This Agreement, any policies referenced herein, and any applicable Order Form, represent the parties’ entire understanding relating to the SVC Service, the SVC Materials and the Services, and supersede any prior or contemporaneous, conflicting or additional communications.
9.4 Governing Law; Jurisdiction. We operate and control the SVC Service from our location in the State of Arizona, USA. We make no representation that any information, materials or functions included on or through our sites are appropriate for use in any other jurisdiction. If you choose to access the SVC Service from locations other than within the State of Arizona, you do so on your own initiative and are responsible for compliance with applicable laws and regulations. You agree that this Agreement, and the rights and obligations hereunder, shall be governed by, and construed in accordance with, the laws of the State of Arizona without giving effect to conflict of laws principles. You further agree that any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligations of the parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator in Maricopa County, Arizona, pursuant to the Commercial Rules of the American Arbitration Association then in effect. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The parties agree that the arbitrator shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to the prevailing party.
9.5 Force Majeure. Except for the obligation to pay Fees when due and the protection of Confidential Information, neither party will be responsible for Force Majeure situations.
9.6 Export. You agree that U.S. export control laws and other applicable export and import laws govern your use of the SVC Service. You represent that you are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the SVC Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.
9.7 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
9.8 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.