Jazz Purchase Agreement
When you confirm your Jazz Imaging order, you acknowledge that you have read this agreement and agree to be bound by its terms. If the party named 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 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.
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 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.
SOLO is guaranteed to integrate 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 9.5.1 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 15-21
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 use with the Sensor. 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 Jazz Imaging Software and the Sensor, 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 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.
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 Sensor.
30 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 30 days of receipt of the Sensor and fees (minus shipping costs) will be refunded. This offer is available to new customers only for the first sensor under this agreement. Multiple or subsequent sensors returned under the 30-day performance guarantee are subject to a $500 restocking fee.
Standard Warranty. Jazz Imaging warrants that the Purchased Sensor and Software will perform in substantial compliance with its published specifications for one year. 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. In the event of Sensor damage Jazz Imaging reserves the right to invoice customer for repair or replacement, not to exceed $1999, using the credit card on file.
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’s 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. Optionally, you may pay for expedited shipping of replacement Sensors.
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.
Accessories (including holders, sheaths and USB extension cables) shipped with the Sensor are warranted for manufacturing defects for 30 days. 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 and expressly disclaims all warranties whether express or implied, written or oral, with respect to the the Sensor, including warranty of merchantability or fitness for a particular purpose. The maximum liability of Jazz Imaging arising out of providing the Sensor 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. This limitation shall not apply to (a) third party claims for bodily injury caused by Jazz Imaging negligence or defect in the Sensor, (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; or (ii) replace or modify the Sensor or Software to avoid infringement. 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 Sensor:
Default and Remedies. If you do not pay any payment due 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 agreement 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 agreement.
Governing Law. This 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 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 agreement or in connection with any other agreement, contract or account with Jazz Imaging.
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Document Name: Jazz Purchase Agreement
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