Toothnotes Terms And Conditions

TOOTHNOTES SERVICES AGREEMENT

This Agreement governs your purchase of a license to and use of our services. The parties agree as follows:

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MUST NOT USE THE SERVICE.

1. Definitions

1.1 “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.

1.2 “Agreement” means this Toothnotes Services Agreement and any Service Orders you enter into with us.

1.3 “Authorized User” means you and/or your employee(s) for whom you create a unique user name under your account.

1.4 “Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding our product plans, Beta Versions and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its Affiliates to the other party or its Affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the Effective Date specified on the Service Order. Confidential Information includes this Agreement and its terms. “Confidential Information” excludes information that (a) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party through no action or inaction of the receiving party; (b) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (c) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.

1.5 “Documentation” means our user documentation, in all forms relating to the Service (e.g., user manuals, on-line help files, etc.).

1.6 “Service” means the service identified in the Service Order, as we may modify the service from time to time in our discretion. 

1.7 “Service Data” means any data uploaded into the Service, or otherwise provided for processing by the Service, by or on your behalf in accordance with this Agreement.

1.8 “Service Order” means an ordering document entered into between you and us specifying the Services to be provided thereunder, including any addenda and supplements thereto.  

1.9 “Support Services” means our then-current technical support services offering, as described at my.toothnotes.com. 

1.10 “We” or “Us” or “Our” means Toothnotes, LLC, an Idaho limited liability company.

1.11 “You” or “Your” means the customer named on the Service Order, the person indicating acceptance of this Agreement, or if the person indicating acceptance of this Agreement is acting on behalf of a company or other legal entity, such company or legal entity. 

2. Use of the Service

2.1 Use of the Service. Subject to the terms and conditions of this Agreement, we grant to you and your Affiliates a limited, worldwide, non-exclusive, non-transferrable right during the term of this Agreement to use the Service solely in connection with your internal business operations. Your rights to use the Service are subject to any limitations on use of the Service based on the version of the Service you register for and as set forth in the Service Order (collectively the “Scope Limitations”) and your rights to use the Service are contingent upon your compliance with the Scope Limitations and this Agreement. You are solely responsible for your conduct (including by and between all users), the content of the Service Data, and all communications with others while using the Service. You acknowledge that we have no obligation to monitor any information on the Service, but we may remove or disable any information on the Service at any time for any reason or for no reason at all. We are not responsible for the availability, accuracy, appropriateness, or legality of Service Data or any other information you may access using the Service.

2.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, we grant to you a limited, worldwide, non-exclusive, non-transferable right during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Service in accordance with this Agreement.

2.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Service or Documentation; (b) use the Service in any way that violates applicable law; (c) circumvent or disable any security or other technological features or measures of the Service, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (d) upload or provide for processing any information or material that is illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property rights of any third party; (e) use the Service to harm, threaten, or harass another person or organization; or (f) send, store, or distribute any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system. You will not copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of any Service. You will neither alter not remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Documentation. You may not access the Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose. We reserve the right to deactivate, change or require you to change your user ID and any custom URLs, custom links, or domains you may obtain through the Service for any reason and for no reason. We may exercise such right at any time, with or without notice.  

2.4 Reservation of Rights. We retain all right, title, and interest in and to the Service, Documentation, and all related intellectual property rights, including without limitation any modifications, updates, customizations, cards, apps, or other add-ons. Your rights to use the Service and Documentation are limited to those expressly set forth in this Agreement. We reserve all other rights in and to the Service and Documentation.

2.5 Authorized Users Only. The Agreement restricts the use of the Service to Authorized Users. As part of the registration process, you may be asked to identify the company or other Authorized Users who should be associated with your account. You will not misrepresent the identity or nature of the company or Authorized users who should be associated with your account. We may change the way you access the Service at any time in our sole discretion. You are responsible for maintaining the confidentiality of your login, password, and other account information and for activities that occur under your login and account, including the activities of Authorized Users.

2.6 Protection against Unauthorized Use. You will use reasonable efforts to prevent any unauthorized use of the Service or Documentation, and you will immediately notify us in writing of any unauthorized use that comes to your attention. If there is use by anyone who obtained access to the Service or Documentation directly or indirectly through you, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by use to prevent or terminate unauthorized use of the Service or Documentation.

2.7 Beta Versions. From time to time, we may make available for you to try, at your sole discretion, certain functionality related to the Service, which is clearly designated as beta, limited release, non-production, or by a similar description (each, a “Beta Version”). Beta Versions are intended for evaluation purposes and not for commercial use, are not supported, and may be subject to additional terms. We may discontinue Beta Versions at any time in our sole discretion and may never make them generally available. We have no liability for any harm or damage arising out of or in connection with a Beta Version.

3. Support Services

3.1 Support Services. We will provide you with the applicable Support Services for the version of the Service to which you are subscribed so long as you are current in payment of the Subscription Fees.

3.2 Your Responsibilities. You will provide assistance, cooperation, information, equipment, data, and resources reasonably necessary to enable us to perform the Support Services. You acknowledge that our ability to provide Support Services may be affected if you do not meet your responsibilities set forth above.

3.3 Feedback and Other Content. The Service may permit you to submit feedback, comments, support information, suggestions, enhancement requests, recommendations, and messages related to the use and operation of the Service. You grant to us a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit such content without restriction.

4. Data Security

4.1 Data Security. We implement and maintain physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of Service Data. We will notify you or any unauthorized access to, or use of, Service Data that comes to our attention. If any unauthorized disclosure of Service Data resulting from your use of the Service comes to our attention, we will work with you to investigate the cause of such unauthorized disclosure, and will work together in good faith to take steps reasonably necessary to prevent any future reoccurrence and to comply with applicable data breach notification law.

4.2 Data Transmission. You acknowledge that use of the Service involves transmission of Service Data and other communications over the internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties. You must protect your Authorized User information from access and use by unauthorized parties and are solely responsible for any failure to do so. You must promptly notify us of any suspected security breach.

4.3 Service Data. Service Data is your property. You grant us a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sub-license, index, store, aggregate, and display Service Data as required to provide or perform the Service, Support Services, and account management services, and to publish, display, and distribute de-identified, aggregated information derived from Service Data and from your use of the Service for purposes of improving our products and services, and developing, displaying, and distributing benchmarks and similar reports, provided that any such data is not publicly identified or identifiable as originating with or associated with you or any individual person.

5. Third-Party Content. The Service may identify or allow you to access or use products from third parties (“Third-Party Content”).  We do not control, endorse, or take responsibility for any Third-Party Content associated with the Service. We assume no responsibility for, and specifically disclaim any liability or obligation with respect to, any and all Third-Party Content.
6. Fees and Payment

6.1 Fees and Payment Terms. Unless otherwise specified in a Service Order, the Subscription Fees for the initial subscription term set forth in the Service Order are due upon execution of the Service Order. After the initial subscription term, Subscription Fees will be invoiced monthly or yearly at the then-current rate for the Service or as otherwise specified in the Service Order. You will pay all amounts in full within 15 days after the invoice date. The charges in an invoice will be considered accepted by you unless we are notified of a good faith dispute in writing within 15 days of the date of the invoice. Unless expressly provided otherwise in a Service Order, all amounts payable under this Agreement are denominated in United States dollars, and you will pay all such amounts in United States dollars.

6.2 Credit Card. If you use a credit card to set up an account or pay for the Service, you must be authorized to use the credit card information that you enter when you create the billing account. You authorize us to charge you for the Service plus a reasonable processing fee using your credit card and for any paid feature of the Service that you choose to sign up for or use under this Agreement. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for a subscription to the Service. You must keep all information in your billing account current. You may change your payment method at any time. If you tell us to stop using your payment method and we no longer receive payment from you for a Service that requires payment, we may terminate your access to that Service.

6.3 Late Payment. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded monthly from the date due until the date paid. You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by us to collect any amount that is not paid when due. Amounts due from you under this Agreement may not be withheld or offset by you against amounts due to you for any reason.

6.4 Taxes. The fees stated in a Service Order do not include local, state, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement (“Taxes”). You are responsible for paying all applicable Taxes. If we determine that we have the legal obligation to pay or collect Taxes, we will add such Taxes to the applicable invoice and you will pay such Taxes, unless you provide us with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues us for unpaid Taxes for which you are responsible under this Agreement and which you did not pay to us, we may invoice you and you will pay such Taxes to us or directly to the taxing authority, plus all applicable interest, penalties and fees.

6.5 Future Functionality. Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.

7. Term and Termination

7.1 Term. This Agreement commences on the effective date specified in the Service Order and continues for the initial subscription term specified in the Service Order, unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement automatically renews for additional successive terms as specified in the Service Order unless at least 30 days before the end of the then-current term either party provides written notice to the other party that it does not intend to renew.

7.2 Termination. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Subsection will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If you fail to timely pay any Subscription Fees, we may, without limitation to any of our other rights or remedies, suspend performance of the Service and Support Services until we receive all amounts due, or may terminate this Agreement pursuant to this Subsection. 

7.3 Post-Termination Obligations. If this Agreement is terminated for any reason: (a) we have no obligation to provide or perform any Service or Support Services after the effective date of the termination; (b) you will immediately pay to us any Subscription Fees and other amounts that have accrued prior to the effective date of the termination; (c) any and all liabilities accrued prior to the effective date of the termination will survive; (d) you will provide us with a written certification signed by your authorized representative certifying that all use of the Service and Documentation by you has been discontinued; and (e) Sections and Subsections 2.3, 2.4, 3.3, 4.3, 7, 8, 9, 10, 11, and 12 will survive termination. If this Agreement is terminated by us for your uncured material breach or by you other than as a result of a material, uncured breach by us, you will pay to us the amounts due under the applicable Service Order for the remainder of the then-current term. If you terminate this Agreement for our uncured material breach, as your exclusive remedy, we will provide you a pro-rata refund of all prepaid but unused Subscription Fees for the remainder of the then-current term.

8. Warranties and Disclaimer

8.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution and delivery of the Service Order, or performance of this Agreement.

8.2 Our Warranty. We warrant that the Service as delivered to you will materially conform to the specifications set forth in the applicable Service Order, during the term of the Service Order. You must notify us of a claim under this warranty within 30 days of the date on which the condition giving rise to the claim first appears. To the extent permitted by law, your sole and exclusive remedy arising out of or in connection with a breach of warranty is limited to correction of the non-conforming Service, termination of the applicable Service Order, and a refund of any prepaid unused fees for the applicable Service.

8.3 Sensitive Personal Information. Unless we specifically agree otherwise in writing, you represent and warrant that neither you nor any Authorized User will upload into the Service, or otherwise provide for processing by the Service, any Sensitive Personal Information. “Sensitive Personal Information” means Sensitive Personal Information and any similar term (e.g., “Sensitive Personal Data,” “Protected Health Information,” etc.) as defined under relevant privacy or data protection laws, including, without limitation, the Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act of 1996, US Children’s Online Privacy Protection Act, and Family Educational Rights and Privacy Act. Without limitation, “Sensitive Personal Information” includes personal financial and financial account information, sexual orientation, personal medical or health information, personal information of children under 13, personal education records, and social security, national identity, national insurance, and similar personal identifiers. You further represent and warrant that you and any Authorized User will comply with all applicable laws, regulations, self-regulatory guidelines, and your privacy policy with respect to the collection, transfer, and use of any personally identifiable information in connection with the Service.

8.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE OR DOCUMENTATION. WE DO NOT WARRANT THAT THE SERVICE OR DOCUMENTATION IS ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICE OR DOCUMENTATION WILL BE SECURE OR UNINTERRUPTED. WE EXERCISE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USE OF THE SERVICE OR DOCUMENTATION.

9. Indemnification

9.1 Defense of Infringement Claims.  We will, at our expense, either defend you from or settle any claim, proceeding, or suit brought by a third party (“Claim”) against you alleging that your use of the Service infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right. You must (a) give us prompt written notice of the Claim; (b) grant us full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as we may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. You will not defend or settle any Claim under this Subsection 9.1 without our prior written consent. You may participate in the defense of the Claim at your own expense and with counsel of your own choosing, subject to our sole control over the defense and settlement of the Claim as provided above.  We have no obligation under this Subsection 9.1 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Service in combination with other products or services; (b) any aspect of the Service configured specifically for you to comply with designs, requirements, or specifications required by or provided by or on your behalf; (c) use of the Service by you outside the scope of the rights granted in this Agreement; (d) failure of you to use the Service in accordance with instructions provided by Us; or (e) any modification of the Service not made or authorized in writing by us.

9.1.1 Indemnification of Infringement Claims.  We will indemnify you and your Affiliates from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against you and your Affiliates in any Claim under Subsection 9.1; (b) all out-of-pocket costs, including reasonable attorneys’ fees reasonably incurred by you in connection with the defense of a Claim under Subsection 9.1 (other than attorneys’ fees and costs incurred without our consent after we have accepted defense of the Claim and expenses incurred pursuant to the last sentence of Subsection 9.1); and (c) all amounts that we agree to pay to any third party to settle any Claim under Subsection 9.1.

9.1.2 Infringement Remedies. In the defense or settlement of any infringement Claim, we may, at our sole option and expense: (a) procure for you a license to continue using the Service; (b) replace or modify the allegedly infringing technology to avoid the infringement; or (c) if the foregoing are not commercially feasible in our sole judgment, then terminate your license and access to the Service and refund any prepaid, unused Service fees as of the date of termination. This Subsection 9.1 states our sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Service.

9.2 Defense of Us. You will defend us and our Affiliates from any actual or threatened third-party Claim arising out of or based upon (a) use of the Service by you that is not in accordance with the terms of this Agreement; and/or (b) the Service Data or other materials or information provided by you or on your behalf under this Agreement. We will give you prompt written notice of the Claim and provide assistance in connection with the defense and settlement of the Claim as you may reasonably request. We may participate in the defense of any Claim at our own expense and with counsel of our own choosing.

9.2.1 Indemnification. You will indemnify us from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against us in any Claim under Subsection 9.2; (b) all out-of-pocket costs, including reasonable attorneys’ fees reasonably incurred by us in connection with the defense of a Claim under Subsection 9.2 (other than attorneys’ fees and costs incurred without your consent after you have accepted defense of the Claim); and (c) all amounts that you agree to pay to any third party to settle any Claim under Subsection 9.2. 

10. Limitations of Liability

10.1 Limitations of Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID BY YOU UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR OBLIGATION TO PAY ANY FEES UNDER THIS AGREEMENT OR ANY SERVICE ORDER OR LIMIT YOUR LIABILITY FOR YOUR VIOLATION OF THE SERVICE USE RESTRICTIONS PROVIDED IN THIS AGREEMENT OR FOR YOUR INFRINGEMENT OR MISAPPROPRIATION OF OUR INTELLECTUAL PROPERTY RIGHTS.

10.2 Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

10.3 Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY US TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

11. Confidential Information

11.1 Confidentiality. The party receiving Confidential Information hereunder agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing party’s prior written consent. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s employees or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement, and who will treat such Confidential Information under the terms of this Agreement. We may disclose this Agreement to actual and potential investors and funding sources and their representatives, in each case who agree to hold it in confidence. The receiving party may disclose the disclosing party’s Confidential Information if required by law so long as the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure.

11.2 Return of Confidential Information.  Upon written request of the disclosing party, or in any event upon any termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information. Following expiration or termination of this Agreement, we may purge your Service Provider Data and your Service environment from our systems.

12. Copyrights / Trademarks

12.1 All content and materials available on toothnotes.com, including but not limited to text, graphics, website name, code, videos, images and logos are the intellectual property of Toothnotes, LLC, and are protected by applicable copyright and trademark law, regardless if distinguished by ®, ™, “SM” or neither. Any inappropriate use, including but not limited to the reproduction, distribution, display or transmission of any content on this site is strictly prohibited, unless specifically authorized by Toothnotes, LLC. All information and materials contained in the website shall remain the property of Toothnotes, LLC, or any other holder of an exclusive copyright.

12.2 Some portions of the website, or some information referenced or quoted, is the exclusive property of the American Dental Association and is evidenced by a copyright, license or trademark. The Code On Dental Procedures and Nomenclature as published in Current Dental Terminology, with the current edition, (the CDT), is the sole property of the ADA, copyright © 2021 American Dental Association, with all rights reserved, and is used with the permission of the ADA. A royalty is paid to the ADA for the use of the codes. The ADA retains all rights in the CDT and any modified or updated versions, new editions, or derivative works of the publication. The ADA further owns all rights of commercialization, rental or sale of the CDT or any part thereof, the right to make derivatives of the CDT and the right to distribute the CDT and copies thereof. The use of this ADA copyrighted material does not convey to you a proprietary interest in the CDT, or any portion thereof.

13. Miscellaneous

13.1 Relationship. We will be and act as an independent contractor (and not as the agent or representative of you) in the performance of this Agreement.

13.2 Publicity. We may only use your name, trademarks, and service marks to the extent necessary to fulfill our obligations under this Agreement or as otherwise explicitly authorized in this Agreement or a Service Order. We reserve the right to use your name and trademark as a reference for marketing and promotional purposes on our website and in other communications with our existing and prospective customers. If you do not want to be listed as reference for the Service, you may send an email to info@toothnotes.com stating that you do not wish to be identified as a reference.  

13.3 Assignment and Delegation. You may not assign any of your rights or delegate any of your obligations under this Agreement (in whole or in part) without our prior written consent, except in connection with a change of control, merger, or by operation of law. Your assignment or delegation will not relieve you of your obligations under this Agreement nor release you of your liability under this Agreement. We may voluntarily, involuntarily, or by operation of law assign any of our rights or delegate any of our obligations under this Agreement without your consent. Any purported assignment or delegation in violation of this Subsection will be null and void.  Subject to this Subsection, this Agreement will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns.

13.4 Subcontractors. We may use subcontractors or other third parties in carrying out our obligations under this Agreement and any Service Order. We remain responsible for all our obligations under this Agreement.  

13.5 Notices. Any notice required by this Agreement shall be deemed sufficient if sent by email and receipt is acknowledged by the party to be notified or if sent by overnight courier to the party to be notified at the address set forth in the Service Order.

13.6 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

13.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Idaho, without reference to its choice of law rules.

13.8 Arbitration. Any action arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, will be determined by binding arbitration in Ada County, Idaho, by one arbitrator. The arbitration will be administered by the AAA pursuant to its Comprehensive Arbitration Rules and Procedure. Judgment upon the award rendered by an arbitrator may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to prepare for or conduct the arbitration hearing on the merits. This Section does not prohibit either party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, or to any action by us to collect amounts not paid to us when due.

13.9 Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce. We reserve the right, at our discretion, to change the terms of this Agreement on a going-forward basis at any time. Please check the terms of this Agreement periodically for changes. If a change materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.

13.10 Miscellaneous. This Agreement and all exhibits contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to such subject matter. If there is a conflict between the terms of this Agreement and a Service Order, the terms of the Service Order will control. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate. The Service Order may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Service Order may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.