TERMS OF SERVICE (v2020.1)

By using the Services, you agree to be bound by these terms of service between you and Sirona (“Terms of Service”), and by the Order and any other agreements expressly incorporated herein, which together constitute the “Agreement”. If you do not agree to these Terms of Service or to any other portion of the Agreement you must not use the Services. “You” or “Customer” means you individually or the entity that you represent (and, as applicable, your Users). If you are entering into the Agreement for an entity, you represent that you have the authority to bind that entity. “Sirona”, “we”, or “us” means Sirona Medical, Inc.  Capitalized terms used in these Terms of Service are defined throughout these Terms of Service and in Section 1 (“Definitions”). Section references in this document are to the provisions of these Terms of Service.
The Agreement takes effect when you click “I accept” or similar button or check box presented to you as part of the sign-up process or when you first use the Service, whichever is earlier, and will remain in effect during the relevant Subscription Term or until terminated as specified in the Agreement.

1.Definitions.

“Case” means a patient procedure that is performed by a User for which there is a designated CPT code.

“Customer Data” means User Data and any other data or information provided by Customer for use in connection with the Service.

“New Features” means new product, new services, or new features or functionality of existing services that were not offered by Sirona or not included on an Order as of the Effective Date and are not generally provided to customers of the Service for no additional charge after the date of the applicable Order.  New Features are not included in any existing Service unless they are expressly included through a separate Order.

“Order” means an ordering document that references this Agreement, that is executed by the parties and that specifies, among other things, the Services and applicable fees.

“Service” means the services included on an Order.

“Subscription Term” means the initial term of your authorized use of the Services, as set forth in the applicable Order, together with any renewal terms (if applicable). The initial term begins on the effective date of the Order.

“User Data” means data or information submitted by a User to the Service or made available by a User via such User’s provision of access to such User’s accounts at third party service providers.

“Users” means Customer’s employees or contractors who are physicians or other medical care providers and administrative staff authorized under this Agreement to use the Service that have been supplied user identifications and passwords by Customer (or by Sirona at Customer’s request). Users must work primarily for Customer, and not for a third party even if such third party is an affiliate of Customer or has a business relationship with Customer, unless with our written consent.

2. Provision of Service.

2.1. Sirona shall provide the Service subject to the terms and conditions of this Agreement.  This Agreement includes any Orders, and all exhibits attached hereto, each of which is incorporated herein by reference.  Sirona shall: (i) provide Customer with the authentication credentials Users will need to access the Service; (ii) provide telephone and online standard support to Customer in accordance with the Order; and (iii) make the Service generally available as specified in the Order.

3. Use of Service.

3.1 Customer Responsibilities.  Customer is responsible for all activities that occur under User accounts.  Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Service (including any access or use by individuals other than Users), and notify Sirona promptly of any such unauthorized use; and (iii) comply with all applicable laws in using the Service.

3.2 Use Restrictions.  Customer shall use the Service solely for its internal business purposes in accordance with this Agreement.  Customer shall not, and shall ensure Users do not:  (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, including without limitation affiliates or business partners (e.g., other hospitals or care facilities) not explicitly covered by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages via the Service; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.

3.3 Compliance with HIPAA.  Customer and Sirona agree that for Customer to purchase the Service from Sirona, Customer may need to disclose to Sirona Protected Health Information or PHI (as defined in the Business Associate Agreement referenced in this section below), and the Service may be used to process such PHI.  On or prior to the initial Order effective date, Sirona and Customer shall enter into a Business Associate Agreement in the form found here (the “Business Associate Agreement”).  Any PHI collected by Sirona or its affiliates will be governed by the Business Associate Agreement.  Customer will obtain all releases and authorizations from patients necessary in connection with the Service and this Agreement before providing any PHI to Company or its affiliates.

4. Fees & Payment.

4.1 Fees.  Customer shall pay the fees for the Service and any implementation and/or support services as specified in the Order.  For each Renewal Term, Sirona may increase fees to the then-current fees or as otherwise expressly set forth  in the applicable Order . If Sirona does not receive a payment in full when due, Sirona may charge interest on the amount of the late payment at the lesser of 1.5% per month or the maximum amount permitted under applicable law. If Customer’s account is fifteen (15) days or more overdue, Sirona may suspend the Service until such amounts are paid.  If Sirona is required to bring legal action to collect delinquent accounts, then Customer will pay Sirona’s costs and expenses related to the collection of such delinquent accounts, including Sirona’s reasonable attorneys’ fees and costs of any legal proceedings.

4.2 Taxes.  Sirona’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”).  Customer is responsible for paying all Taxes, excluding only taxes based on Sirona’s income.  If Sirona has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Sirona with a valid tax exemption certificate authorized by the appropriate taxing authority.

5. Proprietary Rights.

5.1 Sirona Technology. The Service includes (i) the Sirona name, the Sirona logo, the Service domain name and all subdomains and content thereon, the product and service names associated with the various products and services that make up the Service; (ii) audio and visual information, documents, software and other works of authorship provided by Sirona to Customer under this Agreement, including training materials; and (iii) other technology, including graphical user interfaces, workflows, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information used by Sirona to provide the Service under this Agreement (the “Sirona Technology”) Other than as expressly set forth Section 5.2 below, no license or other rights in or to the Sirona Technology or related intellectual property rights are granted to Customer or Users, and all such licenses and rights are hereby expressly reserved to Sirona.

5.2 Right to Service.  Sirona grants Customer, during the Term, a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service, and to permit the Users the right to access and use the Service, in each case solely in accordance with the terms of this Agreement.

5.3 Use Restrictions.  Customer shall not (i) modify, copy or create derivative works based on the Service or Sirona Technology; (ii) create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service, other than on Customer’s own intranets; or (iii) disassemble, reverse engineer, or decompile the Service or Sirona Technology, or (iv) access the Service in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.

5.4 Customer Data. Sirona may access, reproduce, and use Customer’s User accounts, including Customer Data associated therewith, to respond to service or technical problems, at Customer’s or the applicable User’s request, or otherwise in connection with the Service, and Customer is responsible for obtaining all consents necessary for Sirona to do the foregoing. Sirona may use during and after the Term Customer Data that is anonymized such that it does not identify any individual or third party for the purpose of optimizing and improving Sirona’s products and services and creating New Features.

5.5 Suggestions. Customer hereby grants to Sirona a royalty-free, worldwide, irrevocable, perpetual, sublicensable, transferable license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the operation of the Service or other potential products and services.

6. Confidentiality.

6.1 Definition of Confidential Information.  The term “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in a Order), the Customer Data, the Service, the Sirona Technology, technology and technical information, and product designs.  Confidential Information shall not include any information that:  (i) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

6.2 Confidentiality.  The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party except to perform its obligations or exercise its rights under this Agreement, except with the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event with less than reasonable care.  If the Receiving Party is compelled by law or a government authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent practicable and legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

6.3 Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such unauthorized disclosure or use may cause irreparable harm to the Disclosing Party for which any other available remedies are inadequate.

7. Warranties & Disclaimers.

7.1. Warranties.  Each party represents and warrants that it has the legal power and authority to enter into this Agreement.  Sirona represents and warrants that it will provide the Service in a manner consistent with general industry standards applicable to services similar to the Services.

7.2. Availability.  Sirona will use reasonable efforts to provide Customer with no less than twenty-four (24) hours’ notice prior to the Service’s unavailability due to planned maintenance (other than during Sirona’s standard 4 hour maintenance window weekly). Sirona will provide as much notice as is practicable under the circumstances for updates and fixes which must be applied on a more urgent basis. Subject to the foregoing, Sirona will use reasonable efforts to make the Service generally available for use by Customer in accordance with this Agreement.

7.3 Exceptions.  Sirona will not be responsible for any unavailability, suspension or termination of Sirona products or services, or any other Sirona performance issues: (i) caused by factors outside of Sirona’s reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of Sirona; (ii) that result from any actions or inactions of Customer or any third party; (iii) that result from Customer’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Sirona’s direct control); (iv) that result from the unavailability of third party services such as third party technology providers or data sources; or (v) arising from Sirona’s suspension or termination of Customer’s right to use Sirona in accordance with this Agreement.

7.4 Data Security.  Sirona shall implement industry-standard security measures with respect to the Service designed to prevent unauthorized access to or use of Customer’s Confidential Information and Customer Data. Sirona shall install patches, fixes, upgrades, updates and new versions of security software it employs within industry-standard timeframes. Sirona will maintain safeguards to restrict access to Customer’s Confidential Information to those employees, agents or service providers of Sirona who need the information to carry out the purposes for which it was disclosed to Sirona. For information disclosed in electronic form, appropriate safeguards include electronic barriers (e.g., “firewalls”, Secure Socket Layer [SSL] encryption, or most current industry standard encryption, intrusion detection or similar barriers) and password protected access to the Customer’s Confidential Information and Customer Data. Sirona will encrypt Customer Data at rest and in transit.

7.5 Data Transmission.  Sirona shall use secure methods of communication (e.g., HTTPS or SFTP or equivalent) with respect to the electronic transmission of system and application data to Customer and/or any other parties expressly designated by Customer.

7.6 Security Incident Response. In the event a data breach occurs with respect to Customer Data, subject to applicable law, Sirona shall notify the appropriate Customer contact by telephone and shall (1) cooperate with Customer to investigate and resolve the data breach, (2) implement remedial measures on Sirona systems if necessary, and (3) document responsive actions taken related to the data breach, including any post-incident review of events and actions taken to make changes in business practices in providing the Service, if necessary.

7.7 Disclaimer.  CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES MAY CHANGE OVER TIME.  EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7 ABOVE, SIRONA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.  SIRONA HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8. Indemnification.

8.1 Indemnification by Sirona. Subject to this Agreement, Sirona shall at its expense defend Customer and its officers, directors and employees (“Customer Indemnified Parties”) against any claim made or brought against any Customer Indemnified Party by a third party alleging that the Service as provided to Customer hereunder infringes the intellectual property rights of a third party (each, a “Customer Claim”), and shall pay any damages finally awarded by a court or agreed to by Sirona in a settlement with respect to such Customer Claim; provided, that Customer (a) promptly gives written notice of the Customer Claim to Sirona; (b) gives Sirona sole control of the defense and settlement of the Customer Claim (provided that Sirona may not agree to any settlement that imposes any liability or obligation on Customer); and (c) provides to Sirona, at Sirona’s cost, all reasonable assistance.  Sirona shall have no obligation under this Section 8.1 or otherwise regarding claims that arise from or relate to (i) Customer’s use of the Service other than as contemplated by this Agreement, (ii) any modifications to the Service made by any entity other than Sirona, (iii) any combination of the Service with services or technologies not provided or approved by Sirona, or (iv) Customer’s use of the Service or portion thereof after Sirona has terminated this Agreement or such portion of the Service in accordance with this Section 8.1. If in Sirona’s opinion a Customer Claim is likely to be made, or if an existing Customer Claim may cause Sirona liability, Sirona may in its discretion (x) obtain a license to enable Customer to continue to use the potentially infringing portion of the Service, (y) modify the Service to avoid the potential infringement, or (z) if the foregoing cannot be achieved after using reasonable commercial efforts, terminate the Agreement or the license to the infringing portion of the Service and refund the amount of any pre-paid fees applicable to the portion of the terminated Services to be provided after the termination date.

8.2 Indemnification by Customer.  Subject to this Agreement, Customer shall at its expense defend Sirona and its officers, directors and employees (“Sirona Indemnified Parties”) against any claims made or brought against any Sirona Indemnified Party arising from or related to (i) Customer’s or any User’s use of the Service, (ii) Sirona’s use of any Customer Data in accordance with this Agreement or Customer’s use of the Service in violation of any law or regulation or in a manner not contemplated in this Agreement, or (iii) Customer’s negligence or willful misconduct giving rise to injury, death or tangible property damage (each, a “Sirona Claim”) and shall pay any damages finally awarded by a court or agreed to by Customer in a settlement with respect to such Sirona Claim; provided, that Sirona (a) promptly gives written notice of the Sirona Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Sirona Claim (provided that Customer may not agree to any settlement that imposes any liability or obligation on Sirona); and (c) provides to Customer, at Customer’s cost, reasonable assistance in connection therewith.

9. Limitation of Liability. IN NO EVENT SHALL SIRONA BE LIABLE FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, DAMAGES RELATED TO DIAGNOSIS OR TREATMENT DECISIONS, DAMAGES RELATED TO THE SERVICE’S INTERPRETATION OF IMAGES OR CUSTOMER’S RELIANCE ON THE RESULTS OF THE SERVICES, FAILURE TO ACHIEVE COST SAVINGS OR THE FAILURE OR INCREASED EXPENSE OF OPERATIONS, OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH, WITHOUT LIMITATION, THIS AGREEMENT, THE SIRONA SERVICES, REGARDLESS OF WHETHER SUCH LOSSES OR DAMAGES ARE CHARACTERIZED AS ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SIRONA’S TOTAL LIABILITY TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO SIRONA HEREUNDER IN THE THEN-PRIOR TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER.

10. Term & Termination.

10.1 Term of Agreement.  This Agreement commences on the Effective Date and continues in effect for the period specified on the applicable Order (the “Initial Term”), or until otherwise terminated in accordance with this Section 10. After the Initial Term, this Agreement will automatically renew for additional periods specified in the appliable Order or if not specified, for one (1) year periods (each, a “Renewal Term”) unless a Party provides written notice of non-renewal at least one hundred eighty (180) days prior to the end of the then-current Initial Term or Renewal Term, as applicable.  The Initial Term and any Renewal Term are collectively referred to herein as the “Term.”

10.2 Termination for Cause.  A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors that is not dismissed or stayed within ninety (90) days. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Sirona prior to the effective date of termination.

10.3 Customer Data Following Termination or Expiration.  Upon expiration or termination of this Agreement (or of the applicable User subscription), Sirona shall have no obligation to maintain or provide any Customer Data (or the applicable User Data) and shall thereafter, unless legally prohibited, delete all Customer Data (or the applicable User Data) in its systems or otherwise in its possession or under its control.  Notwithstanding the foregoing or any other provision of this Agreement, Sirona may use in perpetuity any anonymized data which is derived from Customer Data but does not identify Customer or any specific User or include any PHI.

10.4 Survival. The following provisions shall survive termination or expiration of this Agreement: Sections 1, 4, 5 (excluding Section 5.2), 6, 7.7, 8, 9, 10.3, 10.4 and 11.

11. General Provisions.

11.1 Relationship of the Parties.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.  There are no third-party beneficiaries to this Agreement.

11.2 Logo.  Sirona may use Customer’s name and logo in Sirona’s lists of customers provided that such use will comply with Customer’s standard trademark guidelines provided by Customer to Sirona.

11.3 Force Majeure.  Neither party shall be liable to the other for any failure or delay in performance of its obligations under this Agreement (other than obligations to make payment) arising out of any event or circumstance beyond the reasonable control of such party.

11.4 Notices.  All notices under this Agreement shall be in writing and shall be deemed to have been given upon:  (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email.

11.5 Waiver.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.6 Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party.  Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets that relate to this Agreement.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.7 Governing Law.  This Agreement shall be governed by the laws of California.  The state and federal courts located in San Francisco, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.  Each party hereby consents to the exclusive jurisdiction of such courts provided that nothing in this Section 11.7 prohibits either party from seeking or obtaining in any jurisdiction injunctive or similar relief in connection with the enforcement of this Agreement.

11.8 Entire Agreement.  This Agreement, including all exhibits and addenda hereto and any Order, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.  In the event of any conflict between the provisions in the main body of this Agreement and any Order or any exhibit hereto, the terms of the main body of this Agreement shall prevail to the extent of such conflict, except and to the extent the Order or any exhibit hereto expressly identifies by Section any specific provision of the main body of this Agreement that the parties intend to override.  Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions are hereby rejected and shall be null and void.