3D4 Complete Consultation Software as a Service Agreement

Last updated: 3rd May, 2017

THANK YOU FOR CHOOSING COMPLETE CONSULTATION. PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING AND USING THE NON-SUBSCRIPTION SERVICES, SUBSCRIPTION SERVICES AND SOFTWARE. THE TERMS AND CONDITIONS OF THIS 3D4 COMPLETE CONSULTATION SOFTWARE AS A SERVICE AGREEMENT (“AGREEMENT”) GOVERN YOUR USE OF THE NON-SUBSCRIPTION SERVICES, SUBSCRIPTION SERVICES AND SOFTWARE AND SET OUT IMPORTANT INFORMATION REGARDING OUR AND YOUR OBLIGATIONS AND RIGHTS.

3D4 is willing to provide the Non-subscription Services or Subscription Services to you upon the condition that you accept all the terms and conditions in this Agreement. By downloading, installing or using the Software, or accessing or using the Non-subscription Services or the Subscription Services, you have indicated that you understand this Agreement and accept all the terms and conditions contained herein. If you do not accept all the terms and conditions of this Agreement, then you may not use the Software, Non-subscription Services or Subscription Services. If you are accessing and using the Non-subscription Services, Subscription Services, or Software on behalf of your company or other legal entity (such as your employer) (“Customer Organization”), you represent and warrant that you have the authority to bind that Customer Organization to the Agreement. In that case, “you” and “your” will refer to that Customer Organization.

Certain terms and conditions will be applicable to you depending on the country where you download the Software, or use the Non-subscription Services or Subscription Services. Those country specific terms are set forth or are referred to in Appendix A and form a part of this Agreement. For example, if you are in Australia and you use the Subscription Services, you are subject to additional obligations under Appendix B.

  1. DEFINITIONS.
    1. “3D4” means 3D4Medical LLC.
    2. “3D4 Indemnitees” means 3D4, its affiliates and their respective officers, directors and employees.
    3. “Application Platform” means the Apple App Store or any other platform via which 3D4 makes the Software available.
    4. “Confidential Information” means any business or technical information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. For clarity, Subscriber Data is considered to be your Confidential Information, and the Non-subscription Services, Subscription Services and Software is 3D4’s Confidential Information.
    5. “Data Aggregation” means compilation of data from data available to 3D4 through an access right, a license, or an ownership interest, unless it is otherwise defined under a Data Privacy Addendum that applies to you, in which case Data Aggregation has the meaning therein.
    6. “Data Privacy Appendix” means the data privacy appendix that is applicable to you based on where you download the Software, or use the Subscription Services. If you are a user of the Non-subscription Services, none of the Data Privacy Appendices are applicable to you.
    7. “De-identified Data” means data that does not personally identify any person and, where it is derived from data that is regulated by rules and regulations in the applicable jurisdiction, data that complies with such rules and regulations.
    8. “Free Trial Period” means the trial period, during which your use of the Subscription Services and Software are provided without payment obligations.
    9. “Indemnitee” means the party seeking indemnification pursuant to Section 8 of this Agreement.
    10. “Indemnitor” means the party who is providing an indemnity to the Indemnitee in accordance with this
      Agreement.
    11. “Intellectual Property Rights” means patents (including, without limitation, patent applications and disclosures), utility models, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill, rights in designs, database rights, know-how and trade secrets, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection that subsist now or will subsist in the future in any part of the world.
    12. “Monthly Subscription Fee” means the monthly fee payable by you and that will be processed through the Application Platform in return for your receipt of the Subscription Services.
    13. “Non-subscription User” means any individual that uses the Non-subscription Services.
    14. “Non-subscription Services” means our non-subscription-based Complete Consultation offering for
      non-healthcare provider users.
    15. “Payment Information” means information you supply for the processing of your payment, including, without limitation, your credit card number, the expiration date of your credit card, your address(es) for billing and delivery and any additional information to verify your identity.
    16. “Privacy Policy” means the 3D4 Privacy Policy accessible at www.3d4medical.com/privacy-policy (or such other URL as specified by 3D4), as may be updated by 3D4 from time to time.
    17. “Account Data” means the information provided by you to establish secure transmissions through the use of the Subscription Services, including but not limited to personal information, information used to identify user identifications, account names, account numbers, account profiles, routing information, usernames, passwords, access codes and prompts. For avoidance of doubt, Account Data does not include Subscriber Data.
    18. “Software” means the software application that enables the End User access to the Non-subscription Services or Subscription Services and made available through the Application Platform.
    19. “Subscriber Data” means all personal data, content and information input or electronically submitted by you through your use of the Subscription Services, excluding Account Data.
    20. “Subscription User” means any individual that uses the Subscription Services.
    21. “Subscription Services” means our subscription-based Complete Consultation offering for healthcare providers, and may include without limitation, any related content, any URL that 3D4 makes available to you in connection with your use of the Subscription Services, and any content accessible by such URL, and the doctor dashboard that is made available online as part of the Subscription Services.
    22. “Your Marks” means your business name(s), trademarks, service marks and logos.
    23. “Your Image” means your name, picture, likeness and voice.
  2. SERVICES & SUBSCRIPTION SERVICES.
    1. Provision of Non-subscription Services or Subscription Services. Subject to your compliance with the terms and conditions of this Agreement, 3D4 will provide you access to the Non-subscription Services or Subscription Services, as applicable, via the Software. If you subscribe to the Subscription Services, you agree to pay the Monthly Subscription Fee.
    2. Software License Grant. Subject to your compliance with this Agreement, 3D4 grants to you a limited, non-exclusive, non-sublicensable, non-transferrable, revocable license and right to use the Software during the Term only in connection with your use of the Non-subscription Services or Subscription Services, as applicable.
    3. Software, Non-subscription Services & Subscription Services Restrictions. You will not attempt to interfere with or disrupt the Non-subscription Services or Subscription Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Non-subscription Services or Subscription Services). Except as expressly specified in this Agreement, you will not: (a) copy (except in the course of loading or installing the Software, in each case, directly from your Application Platform), modify, create derivative works based upon, or distribute any portion of the Software, Non-subscription Services or Subscription Services, including, but not limited to, adding new features or otherwise make adaptations that alter the functioning of the same; (b) rent, lease, transfer, assign, lend, sell, license, sublicense, provide access on a time-share or service bureau basis, assign or otherwise provide access to the Non-subscription Services or Subscription Services; (c) if you are a “health care provider” (as defined by HIPAA or an equivalent term in the applicable jurisdiction), use the Non-subscription Services or Subscription Services in connection with provision of healthcare services; (d) restrict or inhibit any other person from using the Non-subscription Services or Subscription Services; (e) make the functionality of the Non-subscription Services, Subscription Services or Software available to multiple users through any means, including, but not limited to, by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of service or (f) transfer any of your rights hereunder. You acknowledge and agree that portions of the Software, including, but not limited to, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of 3D4 and its licensors. Accordingly, you agree not to disassemble, decompile or reverse engineer the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly necessitated by law, notwithstanding this prohibition. You will not access or use (or allow a third party to access or use) the Non-subscription Services, Subscription or Software for competitor analysis or to build any competing products or services. You will not copy any features, functions, integrations, interfaces or graphics of the Software and you will not otherwise use or exploit the Software, Non- subscription Services or Subscription Services in any manner that is not expressly permitted by this Agreement.
    4. Acceptable Use Policies.
      1. You acknowledge and agree that 3D4 does not monitor or police communications or data transmitted through the Non-subscription Services or Subscription Services and that 3D4 will not be responsible for the content of any such communications or transmissions. You will use the Non-subscription Services or Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, and compliance with the highest standards for your profession, where applicable. You will not submit any infringing, obscene, defamatory, threatening or otherwise unlawful or tortious material to the Non-subscription Services or Subscription Services, including any material that violates privacy rights. You will not use the Non-subscription Services or Subscription Services to transmit any unsolicited communications, whether or not in bulk, make misrepresentations about the Non-subscription Services or Subscription Services, or mislead others about the efficacy of any treatment or surgeries based on the content of the Non-subscription Services or Subscription Services.
      2. You will keep Account Data confidential and not disclose Account Data to any third parties. You agree that: (i) you are solely responsible for collecting, inputting and updating Account Data; (ii) 3D4 assumes no responsibility for the supervision, management or control of your Account Data; and (iii) 3D4 assumes no responsibility for any fraudulent or unauthorized use of the Software or any other portion of the Subscription Services by you. You are responsible for all activity occurring under your account, and any use of your account by a third party or any related act or omission that does not comply with this Agreement will be deemed a breach of this Agreement by you.
    5. Data Maintenance & Backup Procedures. 3D4 will follow its standard archival procedures for Subscriber Data and will make commercially reasonable efforts to maintain administrative, physical and technical safeguards designed for the protection and integrity of your Subscriber Data. In the event of any loss or corruption of Subscriber Data, 3D4 will use its commercially reasonable efforts to restore the lost or corrupted Subscriber Data from the latest backup of such Subscriber Data maintained by 3D4. 3D4 will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Subscriber Data caused by any third party. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (AND SUBJECT TO SECTION 10.3), 3D4’S EFFORTS TO RESTORE LOST OR CORRUPTED END USER DATA PURSUANT TO THIS SECTION 2.4 WILL CONSTITUTE 3D4’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF END USER DATA.
    6. Availability of Non-subscription Services and Subscription Services. 3D4 will use commercially reasonable efforts to make the Non-subscription Services and Subscription Services available to you without interruption as much as reasonably possible, subject to any downtime for system maintenance, upgrades, or any unforeseen circumstances.
    7. Unauthorized Disclosure. If either party believes that there has been a disclosure of Subscriber Data or Account Data in a manner that is not authorized under this Agreement, they will promptly notify the other. Additionally, each party will reasonably assist the other party in remediating or mitigating any potential damage, including any notification that should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
    8. Changes to Services. If we make any material changes, we will notify you within the Software or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance the Software or any Non-subscription Services or Subscription Services or to produce or release new versions of same.
    9. Personal Information. Our Privacy Policy explains how we collect, use, manage and disclose Subscriber Data and Account Data from our users that is submitted to the Subscription Services. By using the Non-subscription Services or Subscription Services, you indicate that you understand and agree to our Privacy Policy.
  3. REGISTRATION / PAYMENT FOR SUBSCRIPTION SERVICES.
    1. Registration. Before you can begin using the Subscription Services, you will be required to create an account via the Software by providing some basic information, including your name and email address. You are responsible for all activities that occur under your account, whether or not you know about them.
    2. Recurring Payments. The Subscription Services operate on a monthly rolling subscription fee basis at the then current rate, and all monthly payments are made and processed through your Application Platform, in each case, in accordance with the terms of the applicable Application Platform agreement. If you purchase the Subscription Services, we (or our third party payment processor) will automatically charge you each month, in advance for the next month, on the calendar day corresponding to the commencement of the Subscription Services, using the Payment Information you have provided. In the event your Subscription Services began on a day not contained in a given month, you will be charged on such other day as we deem appropriate. For example, if you started your Subscription Services on January 31st, your next payment date is likely to be February 28th, and your payment method would be billed on that date. Upon installation, you will obtain full access to the Subscription Services but you will not be charged during or for the Free Trial Period (as defined below).
    3. Acknowledgment of Recurring Payments. By agreeing to the terms and conditions of this Agreement and electing to purchase the Subscription Services, you acknowledge that your subscription has recurring payment features and accept responsibility for all recurring payment obligations prior to cancellation of the Subscription Services after the Free Trial Period is concluded. Further, as part of our order processing procedures, we may screen orders for fraud or other undesirable activity. If we feel an order could be suspected fraud, unauthorized, or illegal, we reserve the right to refuse to process that order. Your use of the Subscription Services continues until cancelled by you or we terminate your access to or use of the Subscription Services in accordance with the terms and conditions of this Agreement.
    4. Payment. By using the Subscription Services, you expressly authorize us (or our third party payment processor, such as the Application Platform) to charge you for such Subscription Services. We or our third party payment processor may ask you to supply Payment Information. You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. You authorize us to provide your Payment Information to third parties so we can complete your payment for the Subscription Services (plus any applicable taxes, shipping fees and other charges).
  4. SUPPORT. As part of the Subscription Services, we may provide you access to 3D4’s standard support services as set out at www.3d4medical.com/category/support, or such other URL as specified by 3D4, and as may be updated by 3D4 from time to time.
  5. OWNERSHIP.
    1. 3D4 Intellectual Property. 3D4 owns all worldwide right, title and interest in and to the Non-subscription Services and Subscription Services and Software, and all derivative works thereof, including all Intellectual Property Rights therein, but excluding your Subscriber Data.
    2. Subscriber Data. You own all worldwide right, title and interest in and to all your Subscriber Data subject to Section 5.3 and the provisions of any applicable Data Privacy Appendix, 3D4 will not obtain any ownership rights or interests in such Subscriber Data.
    3. 3D4 Data. 3D4 will own all data generated in connection with your use of the Subscription Services and Software, including Account Data, any De-identified Data and data resulting from Data Aggregation in accordance with the Data Privacy Appendix that is applicable to you, in each case, except as set forth in this Agreement to the contrary, and to the extent permitted by applicable law. For avoidance of doubt, you agree that nothing in this Agreement will prohibit 3D4 from utilizing data derived from sources lacking personal health information for any purpose, provided such data does not reveal any personally identifying information.
    4. License Grant to 3D4. You hereby grant to 3D4 a worldwide, perpetual, irrevocable, transferable, assignable, sublicensable, fully paid-up and royalty-free license and right to modify, copy, distribute, display and perform, publish, prepare derivative works of, use and incorporate into the Software, Non- subscription Services and/or Subscription Services (without attribution of any kind) (a) your Subscriber Data and any suggestions, enhancements requests, recommendations, proposals, corrections or other feedback or information provided by you in relation to the Software, Non-subscription Services and/or Subscription Services; and (b) Your Marks and Your Image in connection with providing the Non-subscription Services and Subscription Services and for marketing and promotional purposes in connection with 3D4’s and its affiliates’ business. Other than those rights specifically granted to 3D4 herein, all right, title and interest in and to Your Marks and Your Image are expressly reserved by you.
  6. NO WARRANTY. THIS SECTION APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 10.3. THE SERVICES, SUBSCRIPTION SERVICES AND SOFTWARE ARE PROVIDED AS “AS IS,” WITHOUT WARRANTY OF ANY KIND. 3D4 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. 3D4 MAKES NO WARRANTIES THAT THE SERVICES, SUBSCRIPTION SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY (INCLUDING MEDICAL ACCURACY), TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF SERVICES, SUBSCRIPTION SERVICES OR SOFTWARE, OR ANY PART THEREOF. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM 3D4 OR ELSEWHERE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. 3D4 DISCLAIMS ANY WARRANTY THAT THE SERVICES, SUBSCRIPTION SERVICES AND SOFTWARE WILL BE ERROR- FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. You assume sole responsibility and liability for results obtained from the use of the Non-subscription Services or Subscription Services and for conclusions drawn from such use. 3D4 will have no liability for any claims, losses, or damages caused by errors or omissions in any Subscriber Data provided to 3D4 by you.
  7. YOUR OBLIGATIONS.
    1. Enforcement. You will promptly notify 3D4 of any suspected or alleged breach of this Agreement and will cooperate with 3D4 with respect to: (i) any investigation by 3D4 of any suspected or alleged breach of this Agreement; or (ii) any action by 3D4 to enforce this Agreement.
    2. User Representations.
      1. Subscription Users. If you are a Subscription User, you represent and warrant to 3D4 that: (i) you have all rights, power and authority that are necessary for your collection, use, provision to 3D4 and processing of the Subscriber Data and Account Data as contemplated by this Agreement and have the necessary consents, including consents from each patient for the collection, use, provision to 3D4 and processing of such patient PHI and personally identifiable information; and (ii) your use and provision of Subscriber Data and Account Data to 3D4 and 3D4’s or any of its affiliates’ processing of the Subscriber Data pursuant to this Agreement will not breach any agreement between you and any third party or violate any applicable local, state or federal laws, regulations, orders or rules.
      2. Rights to Marks and Image. You represent and warrant to 3D4 that: (i) you have all rights, power and authority to use and to have 3D4 use any and all of Your Marks and Your Image; and (ii) your use and provision of Your Marks and Your Image to 3D4 pursuant to this Agreement will not breach any agreement between you and any third party or violate any applicable local, state or federal laws, regulations, orders or rules.
    3. Telecommunications and Internet Services. You acknowledge and agree that your use of the Non- subscription Services, Subscription Services and Software is dependent upon access to telecommunications and Internet services. You are solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Non-subscription Services or Subscription Services and Software, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. 3D4 will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
  8. INDEMNIFICATION.
    1. Indemnification by 3D4. Subject to Section 8.6, 3D4 will defend any suit or action brought against you to the extent that it is based upon a third party claim that the Non-subscription Services, Subscription Services or Software, as provided by 3D4 to you, pursuant to this Agreement, infringe any patent or any copyright or misappropriate any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by you.
    2. Exclusions. Notwithstanding the terms of Section 8.1, 3D4 will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) the combination, operation or use of the Non-subscription Services, Subscription Services or Software with equipment, devices, other software or data (including without limitation Subscriber Data) not supplied by 3D4, if a claim would not have occurred but for such combination, operation or use; or (ii) your use of the Non- subscription Services or Subscription Services or Software other than in accordance with this Agreement.
    3. 3D4’s Remedy Options. If your use of the Non-subscription Services, Subscription Services or Software is, or in 3D4’s opinion is likely to be, enjoined due to the type of claim specified in Section 8.1, then 3D4 may at its sole option and expense: (i) replace or modify the Non-subscription Services, Subscription Services or Software to make them non-infringing and of equivalent functionality; (ii) procure for you the right to continue using the Non-subscription Services, Subscription Services or Software under the terms and conditions of this Agreement; or (iii) if 3D4 is unable to accomplish either (i) or (ii), despite using its reasonable efforts, terminate your rights and 3D4’s obligations under this Agreement with respect to the Software or such Non-subscription Services or Subscription Services and 3D4 may also refund to you any portion of the paid Monthly Subscription Fees corresponding to periods where Subscription Services are suspended or terminated in their entirety based on a third party claim under Section 8.1.
    4. Sole Remedy. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (AND SUBJECT TO SECTION 10.3) THE FOREGOING STATES THE ENTIRE OBLIGATIONS OF 3D4 AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES OR SUBSCRIPTION SERVICES OR SOFTWARE.
    5. Indemnification by You. You will defend 3D4 Indemnitees, from and against any action or suit brought against a 3D4 Indemnitee by a third party in connection with arising out of, resulting from or caused by (i) your negligence or intentional misconduct; (ii) your provision of medical care or medical services; (iii) the failure to enrol or the denial of a patient’s access to the Non-subscription Services, Subscription Services or Software; (iv) your use of the Non-subscription Services or Subscription Services or Software (other than any claim for which 3D4 is responsible under Section 8.1) including, but not limited to, a claim that the Subscriber Data, Your Mark, Your Image, or your use of the Non-subscription Services or Subscription Services or Software infringes or misappropriates any Intellectual Property Rights of a third party; (v) a claim that your use and provision of Subscriber Data or Account Data to 3D4 and 3D4’s or any of its affiliates’ processing of the Subscriber Data or Account Data pursuant to this Agreement breaches any agreement between you and any third party or violates any applicable local, state or federal laws, regulations, orders or rules; (vi) a claim that serious health event or bodily injury resulted from your use of the Non-subscription Services or Subscription Services; and (vii) your violation of any term or your breach of any warranty herein, or your misrepresentation under this Agreement (including any of its appendices), including without limitation, the User Representations under Section 7.2, and will pay any costs, damages and reasonable attorneys’ fees attributable to or awarded with respect to such claim.
    6. Conditions of Indemnification. As a condition to the parties’ respective obligations under this Section 8, the Indemnitee will: (i) promptly notify the Indemnitor of the claim for which it is seeking indemnification; (ii) grant the Indemnitor sole control of the defense and settlement of the claim; and (iii) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The Indemnitor will not settle any claim that involves a remedy other than payment without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. The Indemnitee has the right to retain counsel, at its expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that the Indemnitee enters into without the Indemnitor’s prior written consent.
  9. CONFIDENTIAL INFORMATION.
    1. Use and Disclosure Restrictions. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party, except, in the case of 3D4, to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own Confidential Information and in no event less than a reasonable standard of care. The provisions of this Section 9.1 will remain in effect during the term of this Agreement and for a period of three (3) years after the expiration or termination of this Agreement.
    2. Exclusions. The obligations and restrictions set forth in Section 9.1 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
    3. Permitted Disclosures. The provisions of this Section 9 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.
  10. LIMITATION OF LIABILITY.
    1. Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (AND SUBJECT TO SECTION 10.3), IN NO EVENT WILL 3D4 BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF USE, DATA, BUSINESS OR PROFITS, OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES, NEGATIVE HEALTH CONSEQUENCES OR BODILY INJURY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF THE SERVICES, SUBSCRIPTION SERVICES OR SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT 3D4 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND WHETHER OR NOT FORESEEABLE. EACH OF SUCH LIMITATION IS INTENDED TO BE ENFORECABLE REGARDLESS OF WHETHER ANY OTHER EXCLUSIVE OR NON-EXCLUSIVE REMEDY UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
    2. Total Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (AND SUBJECT TO SECTION 10.3), 3D4’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, FROM ANY AND ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE GREATER OF $100 OR TOTAL FEES PAID OR PAYABLE BY YOU UNDER THIS AGREEMENT, IF ANY, DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF 3D4’S ACT OR OMISSION GIVING RISE TO ANY LIABILITY.
    3. Non-Excludable Liabilities. Applicable law may not allow for exclusions or limitations of certain statutory conditions, warranties, guarantees and other remedies, or for the exclusion or limitation of certain damages. Solely to the extent that such law applies to you, some or all of the disclaimers, exclusions or limitations set out in this Agreement may not apply to you, and you may have certain additional rights. In respect of any conditions, warrantees or guarantees which cannot be lawfully excluded, to the extent permitted by law 3D4’s liability is limited (at 3D4’s option) to the replacement, repair or resupply of the relevant goods or the resupply or refund of the cost of relevant services.
  11. TERM AND TERMINATION.
    1. Term. The term of this Agreement starts when you accept the Agreement and ends when the Agreement is terminated by either party (“Term”). With regard to Subscription Services, this Agreement will start with a Free Trial Period and auto-renew for consecutive periods of one (1) month each, until it is terminated. The Free Trial Period and all such auto-renewal periods will be collectively referred to as the Term. 3D4 reserves the right not to auto-renew with regard to the Subscription Services.
    2. Free Trial Period. The Free Trial Period shall start upon your installation of the Software to access the Subscription Services and end at the earlier of: (a) the end of the time period set forth when you download the Software; or (b) the time at which you sign up for the Subscription Services, if you choose to subscribe before the time period set forth when you download the Software ends. At the end of the Free Trial Period, if you continue to use the Subscription Services, you authorize 3D4 to start charging you the Monthly Subscription Fee.
    3. Cancelling Subscription Services. You may cancel your use of the Subscription Services at any time by cancelling your subscription in as set forth below. PLEASE NOTE, HOWEVER, THAT ALL SALES ARE FINAL. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE MONTHLY SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel Subscription Services, you can initiate a cancellation in accordance with instructions provided by your Application Platform. You will be responsible for all Monthly Subscription Fees incurred for the then current Subscription period. If you cancel, your cancellation will be effective immediately, but 3D4 will allow you to access the Subscription Services until the most recently paid- up subscription period ends, and then your access will terminate. At the end of such paid-up period, parties’ rights and obligations with respect to Subscription Services will terminate and, unless otherwise notified by 3D4, you will remain a party to this Agreement as a Non-subscription User, in which case, only those rights and obligations with respect to Non-subscription Services will remain in effect, including your obligation under Section 2.3(c).
    4. Termination for Cause. 3D4 will have the right to terminate this Agreement if you breach any material term or warranty of this Agreement and fail to cure such breach within thirty (30) days after written notice thereof; provided that the cure period for any default with respect to payment of the Monthly Subscription Fee will be five (5) business days. In no event will any termination relieve you of your obligation to pay any fees payable to 3D4 for the period prior to the effective date of termination.
    5. Termination for Convenience. 3D4 may terminate this Agreement with respect to your access to and use of the Subscription Services, the Non-subscription Services or Software for any reason as determined by it in its sole discretion. If you are a Subscription User at the time of 3D4’s termination of this Agreement pursuant to this Section 11.5, 3D4 will refund to you any portion of the paid Monthly Subscription Fees corresponding to the period during which it made the Subscription Services unavailable.
    6. Effect of Termination. Upon the expiration or termination of this Agreement: (i) your right to access and use the Non-subscription Services, Subscription Services and Software will immediately terminate, and you will immediately cease all use of the Non-subscription Services, Subscription Services and Software; and (ii) you will promptly destroy or return to 3D4 all Confidential Information of 3D4 in your possession or control. 3D4 will have no obligation to maintain your Non-subscription Services or Subscription Services account or to retain or forward any data to you, except as required by law. Upon expiration or termination of this Agreement, 3D4 will, in its discretion and to the extent permitted by law, destroy or otherwise dispose of any Subscriber Data in its possession or provide a copy to you, but only to the extent 3D4 has such data in its possession. You will pay all reasonable expenses incurred by 3D4 in returning Subscriber Data to you, if 3D4 elects to do so at your direction. After such thirty (30) day period, 3D4 will have no obligation to retain or provide your Subscriber Data, except as required by law.
    7. Right to Terminate or Suspend Services. Notwithstanding anything else in this Agreement, 3D4 reserves the right to change, suspend or discontinue the Non-subscription Services, or any features, components or functions of the Software, Non-subscription Services or Subscription Services at any time without prior notice; and the Software or the Subscription Services in their entirety if we reasonably determine that (a) you breached this Agreement (including by non-payment of the Monthly Subscription Fee for the Subscription Services, as applicable), the Intellectual Property Rights of a third party or applicable laws, or any activity or use of the Non-subscription Services or Subscription Services in connection with your account is otherwise disruptive or harmful to 3D4 or any third party, or (b) 3D4 is required to do so by law. In the event 3D4 chooses to discontinue the Non-subscription Services, the Subscription Services, the Software, or any features, components or functions thereof, upon notifying you, it will have no obligation to maintain the same.
    8. Survival. The rights and obligations of 3D4 and you contained in Sections 2.3, 2.4, 2.7, 5, 6, 7, 8, 9, 10, 11.6, 12 and each Appendix applicable to you, will survive the expiration or termination of this Agreement.
  12. MISCELLANEOUS.
    1. Governing Law. This Agreement will be governed by and construed in accordance with the laws of California, without regard to or application of conflict of laws rules or principles. You and 3D4 agree to submit to the personal and exclusive jurisdiction of the state and federal courts of San Francisco to resolve any dispute or claim arising from this Agreement. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
    2. Assignment. You may not assign, delegate or transfer this Agreement or any rights granted hereunder, in whole or in part, by operation of law or otherwise, without 3D4’s prior written consent, and any attempt by you to do so, without such consent, will be void. 3D4 may freely assign or transfer this Agreement, in whole or in part, by operation of law or otherwise.
    3. Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
    4. Notices. All notices or approvals required or permitted under this Agreement will be delivered to you within the Software, Non-subscription Services or Subscription Services or to the email address(es) that we have on file for your account. You hereby consent to receive notice from 3D4 through the foregoing means, and such notices will be deemed effective when sent on a business day, and if not sent on a business day, then on the next business day. Except as otherwise specified in the Agreement, any notices to 3D4 under this Agreement must be delivered via first class registered U.S. mail, overnight courier:3D4 Medical LLC.
      445 Marine View Avenue Suite 110
      Del Mar
      CA 92014 USA
    5. Waiver & Severability. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect.
    6. Entire Agreement. This Agreement, including the attached appendices, but excluding Data Privacy Appendices, except where applicable as set forth in Appendix A, is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and 3D4 have executed a separate agreement governing use of the Non- subscription Services or Subscription Services or Software, as applicable. In the event of a conflict between any of the terms of this Agreement and a provision in the applicable Data Privacy Appendix, the Data Privacy Appendix will control.
    7. Force Majeure. Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a reasonable period of time equal to the time lost due to any delay so caused.
    8. Relationship of the Parties. The parties to this Agreement are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
  13. CONTACT INFORMATION. If you have any questions regarding this Agreement, you may contact 3D4 at info@3D4Medical.com.

APPENDIX A
BUSINESS ASSOCIATE AGREEMENT FOR COVERED ENTITIES SUBJECT TO HIPAA

  1. DEFINITIONS.
    1. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103 and in reference to this Agreement shall mean 3D4.
    2. “Business Associate Agreement” (BAA) means Appendix A of this Agreement, which is specifically relevant to Subscription Users that are Covered Entities.
    3. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 CFR 160.103.
    4. “HIPAA” means the Health Insurance Portability and AccountabilityAct, as amended and supplemented.
    5. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification and Enforcement Rules at 45 CFR Part 160 and Part 164.
    6. “PHI” means Protected Health Information under US law and means any information about health status, provision of health care, or payment for health care that is created or collected by, or on behalf of, a “Covered Entity” (or a Business Associate of a Covered Entity), and can be linked to a specific individual.
  2. The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Protected Health Information, Required By Law, Secretary
    1. Our Obligations & Activities. We agree to:
      1. Not use or disclose protected health information other than as permitted or required by this Agreement or as required by law;
      2. Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement;
      3. Report to a Covered Entity any use or disclosure of PHI not provided for by the Agreement of which we become aware, including breaches of unsecured PHI as required at 45 CFR 164.410, and any security incident of which we become aware;
      4. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit PHI on our behalf agree to the same restrictions, conditions, and requirements that apply to us with respect to such information;
      5. Within ten (10) business days of a written request from a Covered Entity, make any PHI in a designated record set available to the Covered Entity as necessary to satisfy the Covered Entity’s obligations under 45 CFR 164.524;
      6. Within ten (10) business days of a written request from a Covered Entity, make any amendment(s) to PHI in a designated record set as directed or agreed to by the Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy the Covered Entity’s obligations under 45 CFR 164.526;
      7. Maintain and, within ten (10) business days of a written request from a Covered Entity, make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy the Covered Entity’s obligations under 45 CFR 164.528;
      8. To the extent that we are to carry out one or more of the Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations; and
      9. Make our internal practices, books, and records available to the Secretary for the purposes of determining compliance with the HIPAA Rules.
    2. Permitted Uses and Disclosures by Business Associate:
      1. We may use or disclose PHI as specified in this Agreement and as necessary to perform the services set forth.
      2. We may use or disclose PHI as required by law.
      3. We may use PHI to de-identify the information in accordance with 45 CFR 164.514(a)-(c) retaining any and all ownership claims relating to the de-identified data we create from the Covered Entity’s PHI.
      4. We may collect, analyze and use anonymized or aggregated data regarding the usage and performance of the Software, the Non-subscription Services or the Subscription Services, including data derived from PHI, and create aggregate data that is not identifiable to any person and, to the extent derived from PHI, complies with 45 C.F.R. § 164.514(b). We may retain and use the De- identified Data without restriction for any purpose, including, but not limited to, operating, analyzing, improving or marketing the Software, the Non-subscription Services, and the Subscription Services, and any related products and services.
      5. We may make uses and disclosures and requests for PHI consistent with the minimum necessary policies and procedures required by HIPAA.
      6. We may provide data aggregation services relating to the healthcare operations of the Covered Entity.
      7. We shall not use or disclose PHI in a manner that would violate Subpart E of 45 CFR Part 164 if done by the Covered Entity, except for the specific uses and disclosures set forth below.
      8. We may use PHI for our own proper managerial and administrative duties, or to carry out our legal responsibilities,
      9. We may disclose PHI for our own proper managerial and administrative functions, or to carry out our legal responsibilities, provided that the disclosures are required by law, or that we obtain reasonable assurances from the person(s) to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies us of any instances of which it is aware in which the confidentiality of the information has been breached.
    3. Provisions for Covered Entity to Inform Us of Privacy Practices and Restrictions
      1. The Covered Entity will notify us of any limitations in its notice of privacy practices under 45 CFR 164.520, to the extent that such limitation may affect our use or disclosure of protected health information.
      2. The Covered Entity will notify us of any changes in, or revocation of, the permission by an individual to use or disclose his or her PHI, to the extent that such changes may affect our use or disclosure of PHI.
      3. The Covered Entity will notify us of any restriction on the use or disclosure of PHI that the Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect our use or disclosure of PHI.
    4. Permissible Requests by Covered Entity. The Covered Entity shall not request that we use or disclose PHI in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by the Covered Entity, except as specified in Section 2.2 of this Appendix A.
    5. Obligations of Business Associate Upon Termination. Upon termination of this Agreement for any reason, with respect to PHI received from a Covered Entity, or created, maintained, or received by us on behalf of a Covered Entity’s, we shall:
      1. Retain only such PHI that is necessary for us to continue to properly perform our own managerial and administrative duties, or to carry out our legal responsibilities;
      2. Return to the Covered Entity or, if agreed to by the Covered Entity, destroy the remaining PHI that we still maintain in any form;
      3. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as we retain the PHI;
      4. Not use or disclose the PHI that we retain other than for the purposes for which such PHI was originally retained, and subject to the conditions in Section 2.2 of this Appendix A which applied prior to termination; and
      5. Return to the Covered Entity or, if agreed to by the Covered Entity, destroy the PHI retained by us when it is no longer needed by us for our proper management and administrative duties, or to carry out our legal responsibilities.
      6. Survival. The parties’ obligations under this Business Associate Agreement will survive the termination of this Agreement.
    6. Data License. We may collect and use PHI in your Subscriber Data. Notwithstanding the terms of Section 5.2 of the Agreement, you hereby grant to 3D4 an irrevocable, non-exclusive, royalty-free, worldwide, license to: (a) use PHI in your Subscriber Data to create de-identified information in accordance with 45 C.F.R. § 164.514(b) that will remain the exclusive property of 3D4; and (b) combine PHI disclosed by you to 3D4 with the PHI of other Covered Entities received by 3D4 in its capacity as a Business Associate of those other Covered Entities, to permit data analyses that relate to the health care operations of the respective Covered Entities.

APPENDIX B
AUSTRALIA DATA PRIVACY ADDENDUM

You covenant, represent and warrant that you have obtained all necessary consents (and given all required notices) to collect, perform Data Aggregation, use, provide to 3D4 and process personal information and authorize 3D4 to do the same, and that each patient’s health records and medical information are properly and adequately protected under the laws of the jurisdiction in which you operate.

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