Cornerstone Dental Specialties
Master Use Agreement
BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AT THE BOTTOM LINE OF THIS MASTER USE AGREEMENT (THIS “AGREEMENT”), YOU (“SUBSCRIBER”) ACCEPT AND AGREE TO THE TERMS AND CONDITIONS INLCLUDED IN THIS AGREEMENT WITH CORNERSTONE DENTAL SPECIALTIES, INC. (“CDS”) WHICH SHALL GOVERN SUBSCRIBER’S USE OF CDS’ WEB-BASED PORTAL SITE (“CDS CONNECT” OR “APPLICATION”).
- Terms and Conditions
Subscriber’s access to and use of the Application shall be governed by the terms and conditions of this Agreement and any and all terms and conditions posted on the CDS Connect website (collectively, the “Terms and Conditions”), including but not limited to CDS’ Privacy and Security Policy incorporated herein by reference (www.cdsdental.com/portal/privacy-policy).
- Duration and Termination
- Duration. This Agreement shall commence upon the Effective Date and continue in effect for the initial duration set forth on Exhibit A attached hereto. Thereafter, this Agreement shall automatically renew on a year-to-year basis, provided that CDS may suspend or terminate Subscriber’s access and use entitlement to the Application in the event that Subscriber breaches any of the Terms and Conditions.
- Survival. The provisions of Sections 5, 6, 8, 11, 12, 14, 17, and 18 shall survive the termination or expiration of this Agreement.
- License Grant and Payment Terms
CDS hereby grants Subscriber, for the term of this Agreement, a non-exclusive, non-transferable, limited license to access and use the Application, including the right to display online any works of authorship used in connection with the Application.
- Use Restrictions
All rights not expressly granted to Subscriber are reserved by CDS and its licensors. Subscriber may use the Application only for the purpose of engaging the CDS Connect application for the purpose intended and only for as long as Subscriber’s enrollment remains current and active. Subscriber may not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Application or the Content in any way; (ii) modify or make derivative works based upon the Application or the Content; (iii) create Internet “links” to the Application or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (iv) use the Application to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (v) use the Application to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including, without limitation, material harmful to children or which violate of third party privacy rights; (vi) use the Application to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vii) interfere with or disrupt the integrity or performance of the Application or the data contained therein; (viii) attempt to gain unauthorized access to the Application or its related systems or networks; or (ix) use the Application to perform, or in connection with the performance of, any unlawful act, or in any manner for which it was not intended.
- Subscriber’s Responsibilities; Login Name and Password
Subscriber acknowledges and agrees that the unique login name(s) and password(s) issued to Subscriber by CDS in connection with access and use of the Application (collectively, the “Account Log-in ID”) shall be used only by Subscriber for the authorized access and use of the Application. Subscriber shall strictly administer and actively monitor use of such login name and password identifiers by its employees and representatives and shall not disclose log-in names and passwords to any unauthorized third party or otherwise permit any unauthorized third party to access or use the Application. Subscriber shall: (i) notify CDS immediately of any unauthorized use of such log-in names and passwords or any other known or suspected breach of security; and (ii) report to CDS immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Subscriber. Subscriber hereby acknowledges and agrees that CDS assumes no liability or responsibility for any unauthorized access and use of the Application by holders of activated log-in names or passwords within Subscriber’s organization and Subscriber shall indemnify and hold harmless CDS from any claims arising from such access and use.
- Subscriber Data; Subscriber Acknowledgements
- Data Ownership. CDS shall not own any patient data or other medical-related information or material that Subscriber and its representatives submit or deposit in the course of using the Application (“Subscriber Data”) which shall be the proprietary property of Subscriber and/or third parties. Upon termination of this Agreement, CDS shall have no obligation to maintain or forward any Subscriber Data (and may delete Subscriber Data from its servers) except as may expressly assumed in writing by CDS.
- Subscriber Acknowledgements. Subscriber expressly acknowledges and agrees that it shall assume sole responsibility for obtaining any consents for disclosure of individually identifiable health information and ensuring compliance with personal health information privacy and confidentiality standards or regimes, including but not limited to, the Health Insurance Portability and Accountability Act of 1996 (“HIPPA”), as amended from time to time, and Standards for Privacy of Individually Identifiable Health Information (45 CFR Parts 160 and 164); (iii) Subscriber shall assume sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of Subscriber Data: and (iv) CDS assumes no responsibility or liability of any kind for any health assessments, medicine dosages, incident reports or other data deposited in the Application by Subscriber and its representatives.
- Intellectual Property Ownership
CDS and/or its licensors own all right, title and interest, including all Intellectual Property Rights, in and to the CDS Technology, Content, and the Application. The Cornerstone Dental Specialties trade name and any product names and trademarks associated with the Application are trade names and/or trademarks of CDS or its third party licensors, and no right or license is granted to use them.
- Representations and Warranties; Indemnification
- Subscriber represents and warrants that is employees and representatives will use the Application only as authorized and only for so long as Subscriber’s enrollment remains active under the provisions of this Agreement.
- Subscriber shall defend, indemnify and hold CDS, and its employees, representatives, and third party providers and licensors, harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with Subscriber’s breach of the Terms and Conditions of this Agreement.
- Disclaimer of Warranties
CORNERSTONE DENTAL SPECIALTIES, INC. (“CDS”) INCLUDING ITS LICENSORS AND THIRD PARTY PROVIDERS, MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE APPLICATION OR ANY CONTENT. CDS AND ITS THIRD PARTY PROVIDERS AND LICENSORS DO NOT REPRESENT OR WARRANT, AND HEREBY DISCLAIM ALL WARRANTIES TO THE EFFECT THAT (A) USE OF THE APPLICATION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE APPLICATION WILL MEET SUBSCRIBER’S REQUIREMENTS OR EXPECTATIONS, OR (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE. THE APPLICATION AND ALL CONTENT IS PROVIDED TO SUBSCRIBER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CDS AND ITS THIRD PARTY PROVIDERS AND LICENSORS.
- Internet and Other Delays, Interruptions or Failures
SUBSCRIBER ACKNOWLEDGES THAT THE APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, INTERRUPTIONS, FAILURES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CDS AND ITS THIRD PARTY PROVIDERS AND LICNSORS ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LOSSES, CLAIMS OR LIABILITIES RESULTING FROM SUCH PROBLEMS OR OCCURRENCES. FURTHER, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE APPLICATION MAY BE HOSTED BY THIRD PARTY PROVIDERS AND OTHERWISE BE SUBJECT CHANGING RULES AND REGULATIONS IMPOSED BY GOVERNMENTAL AUTHORITIES, AND THAT CDS (A) MAY, AS A RESULT, NEED TO MAKE CHANGES REGARDING THE OPERATION OR PROVISION OF THE APPLICATION IN ORDER TO CONFORM WITH SUCH REQUIREMENTS, RESTRICTIONS AND/OR LIMITATIONS OF SUCH PROVIDERS OR GOVERNMENTAL AUTHORITIES, AND (B) SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LIMITATIONS, DELAYS, INTERRUPTIONS, FAILURES AND OTHER PROBLEMS CAUSED BY THE ACTS OR OMISSIONS OF SUCH HOSTING PROVIDERS OR GOVERNMENTAL AUTHORITIES. WITHOUT LIMITING THE FOREGOING, NEITHER CDS NOR ITS THIRD PARTY PROVIDERS AND LICENSORS SHALL BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE TO CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, EARTHQUAKES, LABOR DISPUTES, CHANGES IN LAW, REGULATION OR GOVERNMENT POLICY, RIOTS, WAR, FIRE, EPIDEMICS, ACTS OR OMISSIONS OF VENDORS OR SUPPLIERS, EQUIPMENT FAILURES, TRANSPORTATION DIFFICULTIES, OR ANY OTHER SUCH OCCURRENCES.
- Limitation of Liability
IN NO EVENT SHALL CDS OR ITS THIRD PARTY PROVIDERS AND LICENSORS BE LIABLE TO SUBSCRIBER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE APPLICATION, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE APPLICATION, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE APPLICATION, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF CDS OR ITS THIRD PARTY PROVIDERS AND LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
Each party agrees that it will not use any Confidential Information disclosed to it by the other party, nor disclose such Confidential Information to any third party, unless, and other than as, expressly authorized or contemplated under this Agreement, and will take every reasonable precaution to protect the confidentiality of such information, with no less restrictive precautions than it takes to protect its own Confidential Information of like importance.
- Use Outside of the United States
If Subscriber is authorized to use the Application from outside the United States of America, Subscriber is solely responsible for compliance with all applicable laws, including without limitation, privacy, data protection, export and import laws and regulations of other countries.
CDS may give notice by means of a general notice on the Application, electronic mail to Subscriber’s e-mail address on record in CDS’s account information, or by written communication sent by first class mail or pre-paid post to Subscriber’s address on record in CDS’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Subscriber may give notice to CDS (such notice shall be deemed given when received by CDS) at any time by any of the following: letter sent by confirmed facsimile to CDS; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the CDS address set forth below.
- Modification to Terms
CDS reserves the right to modify the Terms and Conditions, or any provisions thereof, or its policies relating to the Application, including, without limitation, its privacy and security policies, at any time, effective upon posting of an updated version of the same on the Application. Continued use of the Application after any such changes shall constitute Subscriber’s consent to such changes.
This Agreement may not be assigned by Subscriber, whether by operation of law or otherwise, without the prior written approval of CDS.
This Agreement shall be governed by California law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Application shall be subject to the exclusive jurisdiction of the state and federal courts located in Orange County, California. Subscriber hereby irrevocably submit to the personal jurisdiction of such courts. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and CDS as a result of this Agreement or use of the Application. The failure of CDS to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by CDS in writing. This Agreement, together with any other Terms and Conditions, comprises the entire agreement between Subscriber and CDS and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
As used in this Agreement:
- “Application(s)” means the web-based CDC Connect portal created by CDS that Subscriber elects to use, access and subscribe to under the provisions of this Agreement;
- “Confidential Information” means any information of a party disclosed to the other party in the course of this Agreement, which is identified as, or should be reasonably understood to be, confidential to the disclosing party, including, but not limited to Subscriber Data, CDS Technology, Subscriber Log-in IDs and similar information disclosed as part of the Application. “Confidential Information” shall not include information which: (i) is known or becomes known to the recipient directly or indirectly from a third-party source other than one having an obligation of confidentiality to the providing party; (ii) is or becomes publicly available or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the recipient; or (iii) is or was independently developed by the recipient without use of or reference to the providing party’s Confidential Information, as shown by evidence in the recipient’s possession.
- “Content” means any audio or visual content or information, including, without limitation, text, graphics, custom templates, pictures, photographs or sounds, contained in, or made available to Subscriber in the course of using, the Application;
- “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
- “CDS” means Cornerstone Dental Specialties, Inc., a California corporation, having its principal place of business at 9950 Irvine Center Drive, Irvine, CA 92818;
- “CDS Technology” means all of CDS’s or its licensors’ proprietary technology and related Intellectual Property Rights (including software, hardware, product modules, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) used by CDS in providing the Application;
- “Subscriber Data” means any individually identifiable health information or other proprietary data or personal information or material that you submit to the Application in the course of using the Application.
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