TDA SOFTWARE AS A SERVICE AGREEMENT
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES, AS DEFINED HEREIN. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL
ALSO GOVERN THE FREE TRIAL.
IMPORTANT – READ THIS TDA SOFTWARE AS A SERVICE AGREEMENT CAREFULLY BEFORE CONTINUING REGISTRATION.
This Software as a Service Agreement (this “Agreement”) is made and entered into by and between the Dawson Center, L.L.C., a Florida limited liability company, d/b/a The Dawson Academy (“TDA”), and the individual or entity purchasing the
Services defined herein. This Agreement was last updated on February 13, 2015. It is effective between You and TDA as of the date of You accepting this
Agreement.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM 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 AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS
AFFILIATES. 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 MAY NOT USE
THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for
purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. Definitions.
a. “You” and “Your” refers to the individual or entity that has ordered software as a service from TDA (sometimes also refereed to herein as “Our”, “We” or
“Us”) or an authorized distributor or authorized reseller of TDA by making such purchase online (by accepting terms in an electronic ordering platform),
over the telephone, or in person (such online order, telephone order, or in person order hereinafter referred to as and “Order”), each of which such Order
shall incorporate the terms of this Agreement.
b. “Software as a service” consists of system administration, system management, and system monitoring activities that TDA performs for TDA programs, and
includes your right to use the TDA programs, and receive support services (if any) for such TDA programs, as well as any other services provided by TDA
which may be set forth in the Order (collectively, the “Services”).
c. “Program documentation” refers to the program user manual as well as any other materials provided by TDA as part of the Services, if any.
d. “TDA programs” refers to the software products owned or distributed by TDA or by its authorized distributors or resellers, to which TDA grants you
access as part of the Services, including program documentation, and any program updates provided as part of the Services.
e. “Users” shall mean those individuals authorized by you or on your behalf to use the Services, subject to any limitations defined in the Order.
f. “Your data” refers to the data provided by you that resides in your services environment.
2. Applicability of Agreement. This Agreement is meant to accompany and provide the applicable terms and conditions of the Order that this
Agreement accompanies.
3. Rights Granted. Upon TDA’s acceptance of your order and for the duration of the Services term defined in the Order, you have the
nonexclusive, non-assignable, worldwide limited right to use the Services solely for your internal business operations and subject to the terms of the
Agreement and the Order, including your payment and/or subscription obligations. You may allow your users to use the Services for this purpose and you are
responsible for your users’ compliance with this Agreement. The Services are provided as described in, and subject to, the services policies referenced in
the Order.
You acknowledge that TDA has no delivery obligation and will not ship copies of the TDA programs to you as part of the Services. You agree that you do not
acquire under the Agreement any license to use the TDA programs specified in the Order in excess of the scope and/or duration of the Services. Unless
otherwise extended or renewed in accordance with TDA’s services ordering procedures (which are subject to change from time to time), upon the end of the
term specified in the Order or the earlier termination of this Agreement as set forth below, your right to access or use the TDA programs specified in the
Order and the Services shall terminate.
4. Ownership and Restrictions
. You retain all ownership and intellectual property rights in and to your data. TDA or its licensors retain all ownership and intellectual property rights
to the Services and TDA programs. TDA, or its licensees or assignees as applicable, retains all ownership and intellectual property rights to anything
developed and delivered under the Agreement, including without limitation, all copyrights, trademarks, trade names, logos, know-how, concepts, logic and
specifications.
Third party technology, images, data, methods, and procedures (“third party content”) that may be appropriate or necessary for use with some TDA programs
is specified in the program documentation or Order as applicable. Your right to use such third party content is governed by the terms of third party
content agreements between such third party and TDA and this Agreement shall not alter the terms of such agreements and shall not be deemed to grant you
any rights in or license to such third party content, except as expressly provided by this Agreement or TDA in connection with the provision of the
Services.
You hereby agree not to
:
Remove or modify any program markings or any notice of TDA’s or its licensors’ proprietary rights;
Make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations;
Modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services or the TDA programs (the foregoing prohibition
includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or
support, and/or assist a third party in building or supporting, products or services competitive to the TDA programs; and
License, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise
commercially exploit or make the Services, TDA programs or materials available, to any third party other than, as expressly permitted under the terms of
this Agreement.
The rights granted to you under the Agreement are also conditioned on the following:
The rights of any user approved to use the Services pursuant to the Order (e.g., on a “named user” basis) cannot be shared or used by more than one
individual (unless such right is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any
right to access or use the TDA program or the Services);
Except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or
transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means;
You agree not to remove any product identification or notices of proprietary restrictions; and
You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services, the TDA programs and the third party content.
5. Warranties, Disclaimers and Exclusive Remedies
. TDA warrants that the Services will perform in all material respects in accordance with the services policies referenced in the Order. If the Services
provided to you for any given month during the services term were not performed as warranted, you must provide written notice to TDA as specified in the
Order no later than five (5) business days after the last day of that particular month or within such other period stated in the Order.
YOU ASSUME FULL RESPONSIBILITY FOR THE SELECTION OF THE PARTICULAR TDA SERVICE AND ACCESS TO THE PARTICULAR TDA PROGRAM TO ACHIEVE YOUR INTENDED PURPOSES,
FOR THE PROPER USE OF THE PROGRAM/SERVICE AND FOR VERIFYING THE RESULTS OBTAINED FROM THE PROGRAM/SERVICE. TDA DOES NOT WARRANT THAT THE FUNCTIONS
CONTAINED IN THE TDA PROGRAMS ARE FIT FOR ANY PARTICULAR PURPOSE OR THAT THE OPERATIONS OF THE TDA PROGRAMS ARE FIT FOR ANY PARTICULAR PURPOSE.
NEITHER THE TDA PROGRAMS NOR THE SERVICES SHALL BE DEEMED OR ARE INTENDED TO BE THE PRACTICE OF MEDICINE OR DENTISTRY. YOU ACKNOWLEDGE AND AGREE THAT THE
TDA PROGRAMS AND SERVICES ARE INTENDED SOLELY TO ORGANIZE YOUR DATA IN A MANNER YOU DESIRE TO ASSIST YOUR PRACTICE OF MEDICINE, DENTISTRY, ADMINISTRATIVE
SERVICES, SALES AND MARKETING OR SIMILAR SERVICES.
TDA DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT TDA WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT
TDA DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS,
DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. TDA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE
RESULTING FROM SUCH PROBLEMS.
YOU AGREE AND ACKNOWLEDGE THAT TDA CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF PATIENT INFORMATION OR OTHER INFORMATION
TRANSMITTED, UPLOADED, OR STORED USING THE TDA PROGRAMS OR THE SERVICES AND SHALL NOT BE HELD LIABLE FOR ANY DAMAGES RESULTING FROM YOUR USE OR MISUSE OF
THIS INFORMATION. FURTHERMORE, YOU AGREE TO INDEMNIFY TDA FROM ANY CLAIM, ACTION, OR CAUSE, TORT OR OTHERWISE, THAT MAY BE BROUGHT AGAINST YOU AND/OR TDA
IN THE EVENT THAT YOUR PATIENT INFORMATION IS COMPROMISED DUE TO YOUR NEGLIGENCE OR FAILURE TO USE OR CONTROL SECURE ID’S AND PASSWORDS.
YOU AGREE AND ACKNOWLEDGE THAT YOU HAVE OBTAINED SIGNED INFORMED CONSENT DOCUMENTS, INCLUDING THE AUTHORIZATION TO UPLOAD PHOTOGRAPHS AND RECORDS TO TDA’S
SYSTEMS (INCLUDING SYSTEMS ADMINISTERED BY THIRD PARTIES ON BEHALF OF TDA), FROM YOUR PATIENTS. YOU AGREE AND ACKNOWLEDGE THAT YOUR USAGE OF YOUR PATIENTS’
INFORMATION DOES NOT VIOLATE ANY LAWS INCLUDING BUT NOT LIMITED TO HIPAA, PATIENTS’ RIGHTS TO PRIVACY, AND/OR PATIENTS’ RIGHTS RELATING TO PUBLICITY. YOU
AGREE AND ACKNOWLEDGE THAT IN NO EVENT SHALL TDA, INCLUDING ITS AFFILIATES, AGENTS AND LICENSORS, BE LIABLE TO ANY INDIVIDUAL FOR ANY DECISION MADE OR FOR
ACTION TAKEN BY THOSE WHO RELY ON THE TDA PROGRAMS OR SERVICES FOR ANY REASON.
FOR ANY BREACH OF THE ABOVE WARRANTIES, TDA WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE APPLICABLE
SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO TDA, AND THE
REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND TDA’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THIS AGREEMENT.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING, BUT NOT
LIMITED TO, WARRANTIES THAT THE SERVICES ARE FIT FOR A PARTICULAR PURPOSE, OR FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS.
6. Trial Use
. TDA may offer free trials of the Services from time to time on a limited basis. Any such free trial is provided “AS IS” during the free trial period and
any warranties in this Agreement or the Order do not apply to such free trial services. Services will be available to You on a trail basis free of charge
until (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any Purchased Service
subscriptions ordered by You for such Service(s).
Any data you enter into the service(s) during your free trial will be permanently lost unless you purchase a subscription to the same service(s) as those
covered by the trial, or, export such data before the end of the trial period.
Before your free trial period expires, we may contact you and invite you to purchase the service via one of our appointed distributors, resellers or direct
sales personnel. By subscribing to the free trial, you expressly acknowledge and agree that we may pass the contact details that you have provided to such
distributor, reseller or sales personnel. If you wish to continue to receive the service, please contact TDA, distributor or reseller to arrange payment.
If you do not purchase the service, your right to access or use the TDA programs specified in the Order and the Services shall terminate.
7. Indemnification
. If a third party makes a claim against either you or TDA (“recipient” which may refer to you or TDA depending upon which party received the Material),
that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or TDA (“provider”
which may refer to you or TDA depending on which party provided the Material), and used by the recipient infringes its intellectual property rights, the
provider, at its sole cost and expense, will defend the recipient against the claim and indemnify the recipient from the damages, liabilities, costs and
expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the provider, if the recipient does the following:
Notifies the provider promptly in writing, not later than 30 days after the recipient receives notice of the claim (or sooner if required by applicable
law);
Gives the provider sole control of the defense and any settlement negotiations; and
Gives the provider the information, authority, and assistance the provider needs to defend against or settle the claim.
If the provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the provider may
choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for
continued use, or if these alternatives are not commercially reasonable, the provider may end the license for, and require return of, the applicable
Material and refund any unused, prepaid fees the recipient may have paid to the other party for such Material. If such return materially affects TDA’s
ability to meet its obligations under the relevant order, then TDA may, at its option and upon 30 days prior written notice, terminate the order. The
provider will not indemnify the recipient if the recipient alters the Material or uses it outside the scope of use identified in the provider’s user
documentation or services policies or if the recipient uses a version of the Materials which has been superseded, if the infringement claim could have been
avoided by using an unaltered current version of the Material which was provided to the recipient. The provider will not indemnify the recipient to the
extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the
provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the service (e.g., a third party
Web page accessed via a hyperlink). TDA will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with
any products or services not provided by TDA. TDA will not indemnify you for infringement caused by your actions against any third party if the Services as
delivered to you and used in accordance with the terms of the Agreement would not otherwise infringe any third party intellectual property rights. TDA will
not indemnify you for any infringement claim that is based on: (1) intellectual property rights that you were made aware of prior to the effective date of
the Agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the Agreement. This section provides the
parties’ exclusive remedy for any infringement claims or damages.
In addition, you agree to indemnify, defend and hold harmless TDA and each of its affiliates, subsidiaries, licensors, members, and agents, their
respective employees, agents, and assigns against any and all damages, liabilities, costs, expenses, claims, actions, causes, torts or otherwise, whether
brought by users, patients or a third party, relating to your breach of any covenant or warranty in this Agreement or your performance of services to or
for such users, patients or third parties, including but not limited to the practice of clinical dentistry.
8. Provision of Purchased Services.
We will (a) make the Service(s) available to You pursuant to this Agreement and the applicable Order Documents, (b) provide Our standard support for the
Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the Service(s)
available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall
schedule to the extent practicable during the weekend hours between 9:00 p.m. Friday (Eastern time) and 6:00 a.m. Monday), and (ii) any unavailability
caused by circumstances beyond Our reasonable control including, for example, an act of God, act of government, fire, flood, earthquake, civil unrest, act
of terror, strike or other labor problem (other than one involving Our employees), internet service provider failure or delay, or denial of service attack.
9. Term and Termination
. Services provided under this Agreement shall be provided for the period defined in the Order unless earlier terminated in accordance with the Agreement.
The term of the Services and any renewal terms are collectively defined as the “services term”. At the end of the services term, all rights to access or
use the Services, including the TDA programs listed in the Order, shall end.
If either of us breaches a material term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, then the
breaching party is in default and the non-breaching party may terminate the applicable services term under which the breach occurred. If TDA ends the
services term as specified in the preceding sentence, you must pay within 10 days all amounts which have accrued prior to such end, as well as all sums
remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses. If TDA ends the Services under the Indemnification section
(Section 7 above), you must pay within 10 days all amounts remaining unpaid for Services plus related taxes and expenses. The non-breaching party may agree
in its sole discretion to extend the 10-day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if
you are in default under the Agreement, you may not use the Services ordered or the TDA programs.
In addition, TDA may immediately suspend your password, account, and access to or use of the Services (i) if you fail to pay TDA as required under this
Agreement and do not cure within the 10 day cure period, or (ii) if you violate any provision of this Agreement. Any suspension or termination by TDA of
the Services under this paragraph shall not excuse you from your obligation to make payment(s) under this Agreement.
At your request, and for a period of up to 60 days after the termination of the applicable Order, TDA may permit you to access the Services solely to the
extent necessary for you to retrieve a file of your data then in the services environment or for such longer period as may be required by law.
You agree and acknowledge that except as may otherwise be required by law, TDA has no obligation to retain your data and that your data may be
irretrievably deleted after 60 days following the termination of the Order.
You agree and acknowledge that Sections 4, 5, 7, 9-13, 15, 17, and 19-22 (as well as others which by their nature are intended to survive) shall survive
termination or expiration of this Agreement indefinitely.
10. Fees and Taxes
. You agree to pay for all Services ordered as set forth in the applicable Order. All fees due under this Agreement are non-cancelable and the sums paid
nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that TDA must pay based on the Services you
ordered, except for taxes based on TDA’s income. You will reimburse TDA for reasonable expenses related to providing any on-site portion of the Services,
if any, as set forth in the Order. Fees for Services listed in an Order are exclusive of taxes and expenses. All amounts invoiced hereunder are due and
payable within 30 days of the date of the invoice.
You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the Order;
provided, however, the preceding sentence does not relieve TDA of its obligation to deliver Services that you have ordered per the terms of this Agreement.
In the event that You have purchased a monthly subscription to the Services, payment is due on the first day of each month. If payment is not made by the 5 th day of the month, TDA reserves the right to terminate the Services. If You set up automatic payments via credit card or other bank transfer
or authorization and such payment is denied to TDA by the bank or other company issuing You credit, TDA will notify you of such occurrence and You shall
have five (5) days from the date of such notification to correct the issue and make such payment. If such payment is not made within five (5) days of
notification, TDA reserves the right to terminate the Services. After the termination of Services, the subscription rate to be charged upon reactivation of
the Services shall be the current rate of Services being offered and shall not necessarily be equal to the amount You paid prior to such termination.
11. Nondisclosure.
By virtue of this Agreement, the parties may have access to information that is confidential to one another (“confidential information”). We each agree to
disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the terms
and pricing under this Agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of
disclosure.
A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the
other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or
indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is
independently developed by the other party.
We each agree to hold each other’s confidential information in confidence indefinitely. Also, we each agree to disclose confidential information only to
those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under this Agreement. TDA will
protect the confidentiality of your data residing in the services environment in accordance with the TDA security practices specified in the services
policies referenced in the Order. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement in any legal proceeding
arising from or in connection with this Agreement or from disclosing the confidential information to a governmental entity as required by law.
12. Entire Agreement
. You agree that this Agreement (including the information which is incorporated into this Agreement by written reference and including reference to
information contained in a URL or referenced policy), is the complete agreement for the Services ordered by you, and that this Agreement supersedes all
prior or contemporaneous agreements or representations, written or oral, regarding such Services. If any term of this Agreement is found to be invalid or
unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the
Agreement. It is expressly agreed that the terms of the Agreement, including any ordering document, shall supersede the terms in any purchase order or
other non-TDA document. This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or
accepted online by authorized representatives of you and of TDA.
13. Limitation of Liability.
YOU AGREE THAT YOU USE THE SERVICES AT YOUR OWN RISK. NEITHER YOU, TDA OR ANY AFFILIATE OR LICENSOR OF TDA SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. TDA’S MAXIMUM
LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL
IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO TDA FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE
TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST TDA SHALL BE REDUCED BY ANY REFUND OR
CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY. NOTWITHSTANDING THE FOREGOING,
TDA DOES NOT LIMIT ITS LIABILITY IN RELATION TO FRAUD, DEATH, OR PERSONAL INJURY.
14. Export.
Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Services. You agree that such
export control laws govern your use of the Services (including technical data) and any services deliverables provided under this Agreement, and you agree
to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information,
software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these
laws, or will be used for any purpose prohibited by these laws.
15. Miscellaneous.
TDA is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us.
We each will be responsible for paying our own employees, including employment related taxes and insurance.
You shall obtain at your sole expense any rights and consents from third parties necessary for TDA and its subcontractors to perform the Services under the
Agreement.
The Agreement is governed by the substantive and procedural laws of Florida and you and TDA agree to submit to the exclusive jurisdiction of, and venue in,
the courts in Pinellas County, Florida in any dispute arising out of or relating to the Agreement.
If you have a dispute with TDA or if you wish to provide a notice under the Indemnification section of this software as a service agreement, or if you
become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: The Dawson Academy, Attention: CEO. TDA may give
notice applicable to TDA’s software as a service customer base by means of a general notice on the TDA portal for the Services, and notices specific to you
by electronic mail to your e-mail address on record in TDA’s account information or by written communication sent by first class mail or pre-paid post to
your address on record in TDA’s account information.
You may not assign the Agreement or give or transfer the Services or an interest in them to another individual or entity.
TDA may audit your use of the Services. You agree to cooperate with TDA’s audit and provide reasonable assistance and access to information. Any such audit
shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your
use of the Services in excess of your rights. If you do not pay, TDA may, in addition to other legal remedies available to it, end your Services and/or the
Agreement.
Licensors and agents of TDA are intended to be third-party beneficiaries of this Agreement as indicated, including, without limitation, the limitations on
liability and indemnification obligations set forth herein.
16. Force Majeure.
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical,
internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any
export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of
a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does
not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services.
17. Your Data.
In performing the Services, TDA will comply with the TDA’s Services Privacy Policy, which is available at
http://www.___________.com/html/services-privacy-policy.html and incorporated herein by reference. The Services Privacy Policy is subject to change at
TDA’s discretion; however, policy changes will not result in a material reduction in the level of protection provided for your data during the period for
which fees for the Services have been paid. The services policies referenced in your Order specify our respective responsibilities for maintaining the
security of your data in connection with the Services.
You agree to provide any notices and obtain any consents related to your use of the Services and TDA’s provision of the Services, including those related
to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality,
integrity, legality, reliability, appropriateness and ownership of all of your data.
18. HIPAA.
TDA complies with all applicable provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). This Agreement is intended to
constitute a Business Associates agreement in accordance with HIPAA. In the course of providing the Services, TDA may need to access, view, or download
computer files from the TDA systems or TDA programs that might contain Personal Data. Personal Data may be stored or transferred across TDA systems or
third-party systems. “Personal Data” includes information relating to an individual, from which that individual can be directly or indirectly identified.
Personal Data can include both personal health information (e.g., images, charts, doctor’s orders, health-related data, and medical or patient record
number) and non-health information (e.g., date of birth and gender). “Covered Entity” shall generally have the same meaning as the term “covered entity” at
45 CFR 160.103, and in reference to the party to this Agreement, shall mean you, individually or, if executed on behalf of an entity, your entity.
TDA will process Personal Data only to the extent necessary to fulfill its service obligations under this Agreement and as required in compliance with
applicable law. Notwithstanding the foregoing, you agree not to send TDA any Personal Data, except in the ordinary course of your use of the TDA programs
and Services.
In addition to the foregoing, TDA agrees to:
Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;
Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 of HIPAA with respect to electronic protected health information, to prevent use
or disclosure of protected health information other than as provided for by the Agreement;
Report to covered entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including
breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware;
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
protected health information on behalf of the business associate agree to the same restrictions, conditions, and requirements that apply to the business
associate with respect to such information;
Make available protected health information in a designated record set to the Covered Entity as necessary to satisfy covered entity’s obligations under 45
CFR 164.524;
Make any amendment(s) to protected health information 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 covered entity’s obligations under 45 CFR 164.526;
Maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy covered entity’s
obligations under 45 CFR 164.528;
Not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity; and
Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA.
You agree to:
Notify TDA in writing of any limitation(s) in the notice of privacy practices of covered entity under 45 CFR 164.520, to the extent that such limitation
may affect TDA’s use or disclosure of protected health information;
Notify TDA of any changes in, or revocation of, the permission by an individual to use or disclose his or her protected health information, to the extent
that such changes may affect TDA’s use or disclosure of protected health information;
Notify TDA of any restriction on the use or disclosure of protected health information that TDA has agreed to or is required to abide by under 45 CFR
164.522, to the extent that such restriction may affect business associate’s use or disclosure of protected health information;
Not to request TDA to use or disclose protected health information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done
by you.
Upon termination of this Agreement for any reason, TDA, with respect to protected health information or Personal Data received from you, or created,
maintained, or received by TDA on your behalf, shall (i) retain only that protected health information which is necessary for TDA to continue its proper
management and administration or to carry out its legal responsibilities; (ii) return to you or, at TDA’s election, destroy the remaining protected health
information that the TDA still maintains in any form; and (iii) continue to 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 the protected health information, other than as provided for in this
Section, for as long as TDA retains the protected health information.
19. Restrictions on Use of the Services.
You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any
purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is
false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail,
“junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate
applicable laws, ordinances or regulations. In addition to any other rights afforded to TDA under the Agreement, TDA reserves the right to remove or
disable access to any material that violates the foregoing restrictions. TDA shall have no liability to you in the event that TDA takes such action. You
agree to defend and indemnify TDA against any claim arising out of a violation of your obligations under this section.
20. Services Tools.
TDA may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the Services and to help resolve your TDA service
requests. The tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot
service requests or other problems in the service. Data collected by the tools (excluding production data) may also be used to assist in managing TDA’s
product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the
tools, and (b) you will not use or restore the tools from any backup at any time following termination of the Agreement.
21. Statistical Information.
TDA may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such
information does not incorporate your data and/or identify your confidential information or include your company’s name. TDA retains all intellectual
property rights in such information.
22. Third Party Web Sites, Content, Products and Services.
The Services may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers,
affiliates and sponsors of such third parties. TDA is not responsible for any third party Web sites or third party content provided on or through the
Services and you bear all risks associated with the access and use of such Web sites and third party content, products and services.