Jazz CLUB Subscription Agreement
When you confirm your Jazz Imaging order, you acknowledge that you have read this subscription agreement and agree to be bound by its terms. If the party named as the subscriber in the order confirmation is a corporation, institution or other legal entity, you represent that you are authorized on behalf of such entity to bind such entity to this subscription agreement. This is an agreement between you (the individual, corporation, institution or other legal entity identified in the order confirmation via the Jazz Imaging website) and Jazz Imaging. Jazz Imaging reserves the right to refuse acceptance of your order and the terms of this agreement.
Authorization to Purchase Jazz Imaging manufactures and distributes medical devices regulated by the Food and Drug Administration. They are authorized for purchase and use only by actively licensed and trained dental medical professionals. Execution of this agreement certifies that you are a Board licensed dental professional.
What is the Jazz CLUB? The Jazz CLUB Service (or the “Service”) consists of (i) lease of you of one or more Jazz SOLO Dental Intraoral X-ray Sensor (or the “Sensor”) owned by Jazz Imaging and (ii) the grant by Jazz Imaging to you of a license to the Jazz Imaging software application for use with such Sensor(s). The Service includes a standard warranty, as long as you subscribe.
The order confirmation will identify (a) the model of the sensor that you are leasing and (b) the subscription price. In the case of one and two year subscription terms as described below under “One and Two Year Subscription Term Plans”, the subscription price will be fixed for the duration of such term.
The Jazz CLUB Service is made available on a subscription basis only pursuant to the terms hereof.
Continuous internet connectivity is not required to use the Jazz CLUB Service, but your Sensor will be required to be connected to the internet at least once every 30 days so that the Sensor and software can acquire subscription status.
Jazz Imaging has the right to modify this subscription agreement upon 30 days prior written notice (in the case of monthly subscriptions) or at each renewal of a one or two year subscription plan. If you do not agree to any such modified agreement, then you may cancel your subscription as described below under “Monthly Subscription Term” or provide notice of non-renewal (as described below under “One and Two Year Subscription Term Plans.”
Lease of Sensors. Jazz Imaging is leasing Sensor(s) to you for duration of this subscription. Ownership of the Sensor is not being transferred from Jazz Imaging to you. You must return Sensor(s) to Jazz Imaging upon termination of the subscription. You are solely responsible for proper care and use of the Sensor during the subscription period. The initial Sensor per this agreement will be new, but replacements may be either new or refurbished sensors that have passed Jazz Imaging Quality Standards.
You will bear all risk of loss (including theft or damage due to fire, flood or other casualty loss) with respect to the Sensor from the date of your receipt from Jazz Imaging until the Sensor is returned to Jazz Imaging. All Sensors returned to Jazz Imaging must be in the same condition as originally provided to you except for normal wear and tear. If you do not return the Sensor(s) in the same condition (except for normal wear and tear), Jazz Imaging reserves the right to charge you a per Sensor “damaged equipment” fee in the amount of Fourteen Hundred Ninety Nine Dollars ($1,499). An extended protection plan is available to cover casualty loss at an extra charge.
Jazz Imaging will remotely disable the service upon failure to pay the periodic service fee, termination of your subscription or in the case of loss or theft.
License to Software. Jazz Imaging grants to you, as licensee, a limited, non-exclusive, non-transferable license to use the Jazz Imaging software application(s) and all maintenance updates and certain updates thereto (the “Jazz Imaging Software” or the “Software”).
Each License of Harmony Software allows for one installation on a stand alone computer or server with up to 10 client computers within a single physical location. Hardware must meet the approved hardware list published on the Jazz Imaging website. Software upgrades that introduce major additional functionality are not licensed hereunder, but may be offered at an additional charge.
Fusion Software is guaranteed to integrate the Jazz SOLO sensor with the following Imaging Applications and revisions at the time of sale. Jazz Imaging does not guarantee or warrant performance if you upgrade to another revision or version of these Imaging Applications.
Dexis 9 – V 9.4.5 and earlier
Dexis 10 – V10.1.2.70 and earlier
Dexis 11 – V184.108.40.206 and earlier
Schick CDR DICOM V5
Gendex GxPicture – V3.0.0 to 3.6.0
Eaglesoft Imaging V 15-19
Carestream 6.14 and newer
XDR V 220.127.116.11 and earlier
Sota Imaging Cliosoft
Curve Dental Cloud
You have no ownership rights in the Jazz Imaging Software. Rather, you have a license to access and use the Software for the duration of the subscription. Ownership of the Software and all intellectual property rights therein shall remain at all times with Jazz Imaging (or if applicable a third party licensor). Any access or use of the Software by any other person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.
The Jazz Imaging Software contains material that may be protected by patent, copyright and trade secret law, and by international treaty provisions. All rights not granted to you herein are expressly reserved by Jazz Imaging (or, if applicable, a third party licensor).
You agree not to publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on the Software or any part thereof. You acknowledge that the Jazz Imaging Software contains proprietary trade secrets of Jazz Imaging or if applicable a third party licensor, and you agree to maintain the confidentiality of the App software using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information, but in no event less than reasonable care.
One and Two Year Subscription Term Plan. Jazz Imaging offers one and two year subscription term plans. For these plans, the subscription period will commence on the date of Sensor shipment to you and will continue for a period of one or two years thereafter, as the case may be. Subscriptions may be paid on a monthly or annual basis.
Subscriptions will continue to renew on the selected monthly or annual basis unless you or Jazz Imaging provide written notice at least 10 calendar days prior to the end of such term. Jazz Imaging may terminate your subscription at any time for any reason (e.g., failure to pay subscription price when due or failure to periodically register via the Jazz Imaging website). If you terminate at least 10 days prior to the end of the current billing cycle, then your subscription will terminate on the last day of such billing cycle. Otherwise your subscription will terminate at the end of the next billing cycle. You are responsible for payment of the subscription price up through the last day of the applicable billing cycle.
Termination or Expiration. If you choose to terminate the Jazz CLUB Service prior to the end of the term, Jazz Imaging shall charge $80 per month of the remaining period of the term. Termination of this Agreement by you must be done in writing and delivered to Jazz at email@example.com or 800 Charcot Ave, Suite 100, San Jose, CA 95131.
If you terminate the contract or it is terminated by you or Jazz Imaging for any reason, then you will return the Sensor(s) to Jazz Imaging. Jazz Imaging will provide you with a prepaid shipping label. If you do not return the Sensor(s) within 30 days after termination or expiration, Jazz Imaging reserves the right to charge you a per Sensor “lost equipment” fee in the amount of Nineteen Hundred Ninety Nine Dollars ($1,999).
Jazz Imaging reserves the right to terminate this agreement if you fail to meet terms of this agreement or if you establish a history of handling or misusing sensors in a way that cause premature failure outside of expected rates.
Subscription Payment Terms; Taxes. Payment for one and two year subscription terms may be made each month, referred to as a monthly billing cycle, or in an annual payment. The incentive for an annual payment is one free month for each one year term. If the annual payment option is selected for one and two year subscription term plans, the subscription payment for each year is payable at the commencement of the year. Jazz Imaging requires auto-payment by either credit card or ACH transfer.
The subscription price does not include applicable sales, excise, use, or other taxes in effect or later levied. Jazz Imaging will invoice you for those taxes, and you will pay those taxes in accordance with the terms of the invoice. Jazz Imaging may require you to provide credit card information to Jazz Imaging or its authorized contractor to charge your credit card account for periodic subscription payments.
Use of Compatible Computer. In order to use the Jazz CLUB Service, you must provide at your own expense a computer meeting requirements in the Jazz SOLO User Manual. The service does not include the required computer.
Jazz Imaging does not provide any maintenance or repair services for compatible computers. You bear the sole responsibility to maintain and repair compatible computers at your own expense. Likewise, Jazz Imaging does not provide anti-virus software as part of the Service. You bear the sole responsibility to purchase and manage all virus issues in connection with compatible smart devices. Further, the Jazz CLUB Service does not include any security software for the computer. You bear the sole responsibility to manage and maintain firewalls or other appropriate security for data residing on compatible computer.
Location. You will keep and use the Sensor and Software only at the address provided during purchase and you agree not to move them without approval from Jazz Imaging. Jazz Imaging will not unreasonably deny approval.
Support. 24-7 self-help support is available online at www.jazzimaging.com/support. Remote support experts are available during normal business hours (Pacific time) at 1.567.234.JAZZ (5299) to assist with installation, hardware or software issues related to Jazz Imaging Sensors and Software. Training shall also be provided for Jazz Imaging Sensors and Software for up to 5 hours per subscription.
14 Day Performance Guarantee (for new customers only). If you are not satisfied with the Jazz Imaging Sensor or Service for any reason, simply notify Jazz Imaging at any time within 14 days of the commencement of the subscription period and return the Sensor within such 14 day period, and fees (minus shipping costs) will be refunded hereunder. This offer is available to new customers only for the first sensor under this agreement. Multiple or subsequent sensors returned under the 14-day performance guarantee are subject to a $500 restocking fee.
Standard Warranty. Jazz Imaging warrants to you that the Sensor, Software and Jazz CLUB Service will perform in substantial compliance with its published specifications during the subscription period. The warranty does not apply: (i) if the Sensor is contaminated with blood or other potentially infectious substances; (ii) if the Sensor or Software are used with equipment other than the list of compatible computers published in the Jazz SOLO User’s Manual; (iii) in the event of alteration or improper storage, handling, use or maintenance of the Sensor by anyone other than Jazz Imaging or its authorized representatives; (iv) to any damage caused by an external source, regardless of nature; and (v) for damage due to neglect or misuse of the Sensor.
If a Sensor fails to meet published specifications, you may request an RMA to return the Sensor to Jazz Imaging so that Jazz Imaging may repair or replace the Sensor. Jazz Imaging’ obligations under the warranty are limited, at Jazz Imaging’ option, to repair or replacement. Replacement Sensor may be new or refurbished, but will meet published specifications.
Jazz Imaging will ship a replacement sensor within one business day with two or three day shipping in the continental United States and provide you with a pre-paid shipping label for returning a failed Sensor on the RMA. If the RMA Sensor is not returned within 14 days an invoice for Nineteen Hundred Ninety Nine dollars ($1999) will be sent for the RMA sensor. If the invoice is not paid or the RMA Sensor returned within 30 days of the original RMA request, both Sensors will be deactivated.
Optionally, you may pay for expedited shipping of replacement Sensors.
Accessories (including holders, sheaths and USB extension cables) shipped with the Sensor are warranted for manufacturing defects during the subscription period. However, these items are considered consumables and will need replaced periodically at your expense.
Limitation of Liability. Jazz Imaging makes no other guarantees or warranties of any kind relating to the Jazz CLUB Service and expressly disclaims all warranties whether express or implied, written or oral, with respect to the Jazz CLUB Service and the Sensor, including warranty of merchantability or fitness for a particular purpose. The maximum liability of Jazz Imaging arising out of providing the Jazz CLUB Service or its use, whether based on warranty, contract, indemnity, tort or otherwise, shall not exceed all payments received by Jazz Imaging from you under this agreement during the one year period prior to the event giving rise to the claim. This limitation shall not apply to (a) third party claims for bodily injury caused by Jazz Imaging negligence or defect in the Jazz CLUB Service, (b) out of pocket costs incurred by you to provide patient notifications required by law, to the extent such notices are caused by unauthorized disclosure of personal health information by Jazz Imaging and (c) fines/penalties levied against you by government agencies citing unauthorized disclosure by Jazz Imaging of personal health information as the basis for such fines/penalties.
In no event shall Jazz Imaging be liable for special, incidental or consequential damages including without limitation lost revenues or profits, business interruption, loss of data or the cost of substitute products or services.
Patent Infringement Claims. Jazz Imaging shall indemnify, defend, and hold you harmless against any new claim that the Sensor or the Jazz Imaging Software infringes, misappropriates, or violates any third party intellectual property right, whether patent, copyright, trademark, or trade secret, provided that you: (a) provide Jazz Imaging prompt written notice of the claim; (b) grant Jazz Imaging full and complete information and assistance necessary for Jazz Imaging to defend, settle, or avoid the claim; and (c) give Jazz Imaging sole control of the defense or settlement of the claim.
If a Sensor or the Jazz Imaging Software is found or believed by Jazz Imaging to infringe such a claim or you have been enjoined from using the Sensor and/or the Jazz Imaging Software pursuant to an injunction issued by a court of competent jurisdiction, Jazz Imaging may, at its option: (i) procure the right for you to use the Sensor and Software; (ii) replace or modify the Sensor or Software to avoid infringement; or (iii) refund to you a portion of the subscription price upon the return of the Sensor. Jazz Imaging shall have no obligation for any claim of infringement arising from modifications to the Sensor or the Software by you or your agents; use of the Sensor or the Software other than in accordance with the specifications or applicable written instructions; use of the Sensor or Software with any other product, including tablets or other smart devices regardless of whether such tablets or other smart devices are on the approved list; if infringement would have been avoided by the use of a current unaltered release of the Sensor or Software; or use of the Sensor or Software after Jazz Imaging has advised you, in writing, to stop use of Jazz CLUB Service in view of the claimed infringement. Jazz Imaging will not be liable for any claim where the damages sought are based directly or indirectly upon the amount of use of the Jazz CLUB Service. The terms in this section state Jazz Imaging’ entire obligation and liability for claims of infringement, and your sole remedy in the event of a claim of infringement.
Your use of the Jazz CLUB Service does not enable or allow Jazz Imaging to access protected health information (as such term is defined in the HIPAA Privacy Rule).
General Terms. The following additional terms shall be applicable to your subscription to the Jazz CLUB Service:
Default and Remedies. If you do not pay any subscription payment by the due date or if you break your agreement with us you will be in default. If you are ever in default we may do any one or all of the following (a) deactivate the Sensor; (b) terminate this agreement; (c) charge you 10% interest on any amount not paid when due or the maximum rate permitted by applicable law, whichever is less. In any action initiated to enforce the terms hereof following your default, Jazz Imaging shall be entitled to recover as part of its damages all costs and expenses, including reasonable attorneys’ fees, in connection with such action. If the sensor is deactivated you agree that Jazz Imaging will not be responsible for any consequential indirect or incidental damages whatsoever.
Force Majeure. Each party shall be excused from performing its obligations (except for payment obligations) arising from any delay or default caused by events beyond its reasonable control including, but not limited to, acts of God, acts of third parties, acts of any civil or military authority, fire, floods, war, embargoes, labor disputes, acts of sabotage, riots, accidents, delays of carriers, subcontractors or suppliers, voluntary or mandatory compliance with any government act, regulation or request, shortage of labor, materials or manufacturing facilities.
Assignment. You have no right to sell, transfer, assign or sublease the Sensor or any rights or obligations under the subscription without the prior written consent of Jazz Imaging. Any attempted assignment without such consent shall be of no force or effect. Jazz Imaging reserves a right to charge a fee for approval of any assignment. If assignment is approved by Jazz Imaging, the assignee will assume all right and obligations under the subscription.
Governing Law. This subscription agreement shall be governed by the laws of the state where the Jazz CLUB Service will be accessed and used, without regard to that state’s choice of law principles, and expressly excluding application of the Uniform Computer Information Transactions Act (“UCITA”), in any form. EACH PARTY, KNOWINGLY AND AFTER CONSULTATION WITH COUNSEL, FOR ITSELF AND ITS SUCCESSSORS AND ASSIGNS, WAIVES ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM ARISING WITH RESPECT TO THIS AGREEMENT OR ANY MATTER RELATED IN ANY WAY THERETO.
Entire Agreement. This Subscription Agreement and the order confirmation constitute the entire understanding and agreement by and between the parties with respect to the transactions contemplated hereby, and supersede any previous understandings or agreements between the parties, whether written or oral, regarding the transactions contemplated hereby. No additional terms, conditions, consents, waivers, alterations, or modifications shall be binding unless in writing and signed by the parties. Additional or different terms and conditions, whether stated in your purchase order or other document issued by you, are specifically rejected and shall not apply to the transactions contemplated hereby.
Severability. If any provision of this Agreement is deemed to be illegal, unenforceable, or invalid, in whole or in part, the validity and enforceability of the remaining provisions shall not be affected or impaired, and shall continue in full force and effect.
Performance. The failure of you or of Jazz Imaging at any time to require the performance of any obligation hereunder will not affect the right to require such performance at any time thereafter.
Obligations. Your obligations are independent of any other obligations you may have under any other agreement, contract or account with Jazz Imaging. You will not exercise any right of offset in connection with this subscription agreement or in connection with any other agreement, contract or account with Jazz Imaging.
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Document Name: Jazz CLUB Subscription Agreement
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