EASYRX PRACTICE LICENSE AGREEMENT
THISLICENSE AGREEMENT (THIS "AGREEMENT") IS BETWEEN YOUR PRACTICE("PRACTICE") AND EASYRX, LLC. BY CLICKING THE "ACCEPT"BUTTON, PRACTICE ACKNOWLEDGES AND AGREES THAT IT HAS READ ALL OF THE TERMS ANDCONDITIONS SET FORTH BELOW, UNDERSTANDS ALL OF THE TERMS AND CONDITIONS OF THISAGREEMENT, AND AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THISAGREEMENT.
Theperson clicking the ACCEPT button hereby represents to EasyRx, LLC that he orshe is at least 18 years old and is competent and fully authorized to enterinto a binding agreement on behalf of Practice.
Subjectto the terms and conditions herein, EasyRx, LLC, (hereinafter, "EasyRx") herebygrants to Practice a non-exclusive license (hereinafter the"License") to use the EasyRx Software and any related documentationincluding without limitation any training materials that EasyRx makes availableto Practice (the "Documentation") in order to place and/or manageorders for orthodontic appliances from one or more labs and/or facilitate thetracking of in-house orders for orthodontic appliances to be made by thePractice itself. The Software resides on one or more servers under the controlof EasyRx (Software as a Service) and will be accessed by the Practice onlinevia the EasyRx website. EasyRx may change or discontinue any portion, featureor content of the Software at any time, with or without notice to Practice. Inits sole discretion, EasyRx may from time to time offer Help Desk assistance toPractice for routine questions related to the Software.
2. LICENSE FEES
Practicehereby authorizes EasyRx to charge the Practice credit card, debit card, PayPalaccount or similar account or payment mechanism that Practice designates forthe fees indicated for the specific license option that Practice selects. Allfees shall be paid in U.S. dollars. EasyRx reserves the right to change itsfees from time to time, but such changes shall be effective only for selectionsmade by Practice after the changes are announced. If Practice seeks to cancel apayment, EasyRx reserves the right to refuse to refund pre-paid fees and may,in addition, charge Practice for reasonable expenses related to thecancellation or attempted cancellation. Practice agrees to pay any sales or usetaxes related to its licensing of the Software. Practice is responsible andliable for any fees, including without limitation reasonable attorney andcollection fees, that EasyRx may incur in seeking to collect any balances duefrom Practice. Practice agrees that it will be billed for and will pay anyoutstanding balances if its license is terminated for any reason. Practice mustnotify EasyRx of any billing problems or discrepancies within sixty (60) daysafter they first appear on the credit card account statement or similarstatement. If Practice does not notify EasyRx within sixty (60) days, Practicewaives any right to dispute such problems or discrepancies.
Theterm of this License shall be until the earlier of (a) termination of thisLicense at any time upon written notice from the Practice to EasyRx, (b)termination of this License at any time upon written notice from EasyRx to the Practice.If EasyRx terminates this License for any reason other than breach of thisAgreement by Practice, Practice shall be entitled to a refund of prepaid feescovering any month beyond the month in which termination occurs. If thePractice terminates this License for any reason, EasyRx shall be entitled to aprorated amount of the fees for services rendered during the applicable monthlybilling cycle.
Upontermination of this Agreement, Practice shall immediately cease to use theSoftware and Documentation. The provisions of Sections 2 through 13 of thisAgreement shall survive the termination of this Agreement for any reason andmay be enforced after such termination.
5. PATIENT DATA
EasyRxdoes not claim any ownership rights in any patient information, data,photographs, x-rays, digital images or other materials that Practice originatesand uploads, transmits or otherwise makes available through the EasyRx system("User Content"). EasyRx shall make use of User Content solely inconnection with the EasyRx system and shall not sell User Content or otherwisedistribute it outside of the EasyRx system; provided, however that EasyRx hasthe right to sell or distribute non-identifying aggregated information or dataderived from the User Content. Upon termination of the License, if Practice haspaid all amounts due to EasyRx then EASYRX shall, upon written request fromPractice and payment of a $150 processing fee, provide to Practice a digitalcopy of the User Content.
6. PRACTICE RESPONSIBILITY
(a)Practice is responsible for all use of the Software and Documentation made underPractice's identification (or "User ID") or password.
(b)Practice is responsible for protecting and securing its access to the Softwareand Documentation and related passwords and data from unauthorized use anddisclosure.
(c)Practice shall not copy, distribute, disclose or sublicense the Software orDocumentation to any person or entity other than an employee or otherauthorized agent of Practice and solely for purposes of properly using theSoftware in accordance with this Agreement. Practice shall not reverseengineer, decompile or disassemble the Software.
(d)Practice covenants that it shall not utilize the Software or Documentation inany manner that is illegal or otherwise engage in any activity related to theSoftware or Documentation in any manner that violates the rights of EasyRx orany other person or entity. Practice is solely responsible for all materialsthat it and its employees and agents upload, email, post, or otherwise transmitvia the Software and will not transmit any materials that contain viruses orother harmful components. Any materials transmitted in violation of thisAgreement may be refused or removed by EasyRx in its sole reasonablediscretion.
(e)The EasyRx web site is served and maintained in the United States, and Practiceagrees not to export any items in violation of any export controls.
(f)If Practice becomes aware of or believes there has been any breach of securityrelated to the Software, Practice shall notify EasyRx immediately.
(g)Practice shall provide any necessary signatures (including without limitatione-signatures) or any proper abbreviations thereof (including without limitationinitials) to a lab when placing orders. Practice shall be responsible forprotecting and securing access to its signatures and abbreviations.
(i)Any disputes between the Practice and a lab must be resolved between those twoentities.
THESOFTWARE WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN THE DOCUMENTATION. IN THEEVENT OF A BREACH OF THE FOREGOING LIMITED WARRANTY, THE SOLE AND EXCLUSIVEREMEDY OF THE PRACTICE SHALL BE TO RECEIVE ACCESS TO REPAIRED OR REPLACEDSOFTWARE THAT CONFORMS TO THE FOREGOING WARRANTY. IF EASYRX CANNOT REPAIR ORREPLACE THE SOFTWARE, PRACTICE MAY TERMINATE THIS AGREEMENT AS SET FORTH INSECTION 3.
8. DISCLAIMER OF WARRANTIES
EXCEPT FOR ANY WARRANTY EXPRESSLY PROVIDED UNDER A LICENSE AGREEMENT, THE SERVICES, INFORMATION AND MATERIALS MADE AVAILABLE AT THIS WEB SITE ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE ORGANIZATION MAKES NO WARRANTIES THAT THE MATERIALS ARE ERROR-FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY DEFECTS WILL BE CORRECTED.
9. EXCLUSION OF DAMAGES
INNO EVENT SHALL EASYRX AND ITS AFFILIATES, AND ITS AND THEIR MEMBERS, OWNERS,MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, BE LIABLE FOR ANYINDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES RELATED IN ANY MANNER TO THESOFTWARE OR DOCUMENTATION OR THIS AGREEMENT.
10. LIMITED LIABILITY
THEAGGREGATE LIABILITY EASYRX AND ITS AFFILIATES, AND ITS AND THEIR MEMBERS,OWNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, IF ANY, ARISINGOUT OF ANY CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY CONNECTEDWITH THE SOFTWARE OR THIS AGREEMENT SHALL NOT EXCEED THE LICENSE FEE PAID BY PRACTICETO EASYRX.
Practicewill defend, indemnify and hold harmless EasyRx and its owners, officers,directors, employees and agents from any and all claims, costs, damages,expenses or losses imposed on, incurred by or asserted against EasyRx as aresult of or relating to, (a) any noncompliance by Practice with the terms andconditions of this Agreement, (b) the use of the Software or Documentation byPractice or by any person using Practice's user ID or password or (c) any UserContent.
EasyRxwill defend, indemnify and hold harmless Practice and its owners, officers,directors, employees and agents from and against any and all claims, costs,damages, expenses or losses imposed on, incurred by or asserted againstPractice as a result of or relating to any claims brought by third partiesalleging infringement or misappropriation of any intellectual property rightarising out of or relating to Practice's use of the Software in accordance withthe terms of this Agreement.
ThisAgreement represents the entire agreement between the parties with respect tothe subject matter hereof, and no modification hereof shall be effective unlesscontained in a writing executed by both parties. Waiver by either party of abreach of any provision hereof shall not be construed as a waiver of anysubsequent breach thereof or of any other provision. Any notice required hereinshall be sent by personal delivery, certified mail or by courier service to theparty entitled to receipt thereof at the address provided at the beginning ofthis Agreement or such other address as a party may give notice of inaccordance with the terms hereof, and shall be effective upon delivery. Thedetermination by a court of competent jurisdiction that any portion of thisAgreement is invalid or unenforceable on any ground shall not affect thevalidity and enforceability of any other portion of this Agreement.
13. APPLICABLE LAW; JURISDICTION AND VENUE
ThisAgreement shall be construed under, and governed by, the laws of the State of Georgia.The parties agree that jurisdiction and venue for any legal proceedings arisingfrom or in any way connected to this agreement will lie in the state courts ofthe County of Fulton, State of Georgia, and both parties hereby submit andconsent to the jurisdiction and venue of said courts.