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 and software 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 CLASSIC? Jazz CLASSIC is a client-server based imaging software used for acquiring, enhancing and diagnosing images for dental professionals. Jazz CLASSIC is made available on an ongoing, subscription basis only pursuant to the terms hereof. Jazz Imaging has the right to modify this agreement upon 30 days prior written notice.
Continuous internet connectivity is not required to use Jazz CLASSIC, but your Software will be required to be connected to the internet at least once every 30 days so that the software can acquire subscription status.
License to Software. Jazz Imaging grants to you, as licensee, a limited, non-exclusive, non-transferable license to use the Jazz CLASSIC Software application(s) and all maintenance updates and certain updates thereto (the “Software”).
Each license of the Software allows for one installation on a stand alone computer or server 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.
You have no ownership rights in the 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.
You have unrestricted ownership of all images acquired by the Software, including after a subscription is canceled.
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 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.
Subscription Term or Expiration. The Software subscription will continue to renew for 30 days each time a Jazz Sensor is used with the Software. If a Jazz Sensor is not used within 30 days the Software may cease to acquire images. Jazz Imaging may terminate your subscription for the Software at any time if you fail to pay or cancel your Sensor subscription with Jazz Imaging.
Use of Compatible Computer. In order to use the Software, you must provide at your own expense a computer meeting requirements in the Jazz Classic 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 Software only at the address provided during purchase and you agree not to move, copy or move the Software without approval from Jazz Imaging.
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.
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.
Compliance with Laws; Privacy. Jazz Imaging collects or uses personal and diagnostic information in connection with your use of the Jazz CLUB Service. Jazz Imaging values and respects your privacy. Please see the privacy policy for details of how and under what circumstances Jazz Imaging collects and uses such personal information.
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.
