Terms and Conditions - Jazz Imaging

OVERVIEW

This website is operated by Jazz Imaging. Throughout the site, the terms “we”, “us” and “our” refer to Jazz Imaging. Jazz Imaging offers this website, including all information, tools and services available from this site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

By visiting our site and/ or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.

SECTION 1 – ONLINE STORE TERMS

By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.

You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).

You must not transmit any worms or viruses or any code of a destructive nature.

A breach or violation of any of the Terms will result in an immediate termination of your Services.

SECTION 2 – GENERAL CONDITIONS

We reserve the right to refuse service to anyone for any reason at any time.

You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.

The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 3 – ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION

We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.

This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

SECTION 4 – MODIFICATIONS TO THE SERVICE AND PRICES

Prices for our products are subject to change without notice.

We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.

We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

SECTION 5 – PRODUCTS OR SERVICES (if applicable)

Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.

We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.

SECTION 6 – ACCURACY OF BILLING AND ACCOUNT INFORMATION

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

For more detail, please review our Returns Policy.

SECTION 7 – OPTIONAL TOOLS

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.

SECTION 8 – THIRD-PARTY LINKS

Certain content, products and services available via our Service may include materials from third-parties.

Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

SECTION 9 – USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS

If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, ‘comments’), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.

We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.

You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

SECTION 10 – PERSONAL INFORMATION

Your submission of personal information through the store is governed by our Privacy Policy.

SECTION 11 – ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

SECTION 12 – PROHIBITED USES

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

SECTION 13 – DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.

We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.

You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.

You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided ‘as is’ and ‘as available’ for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

In no case shall Jazz Imaging, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

SECTION 14 – INDEMNIFICATION

You agree to indemnify, defend and hold harmless Jazz Imaging and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

SECTION 15 – SEVERABILITY

In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

SECTION 16 – TERMINATION

The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.

These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

SECTION 17 – ENTIRE AGREEMENT

The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.

These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).

Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

SECTION 18 – GOVERNING LAW

These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of 770 Charcot Ave, San Jose, CA, 95131, United States.

SECTION 19 – CHANGES TO TERMS OF SERVICE

You can review the most current version of the Terms of Service at any time at this page.

We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

SECTION 20 – CONTACT INFORMATION

Questions about the Terms of Service should be sent to us at support@jazzimaging.com.

JAZZ CLUB SUBSCRIPTION AGREEMENT

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 for 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.

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. 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.

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.

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).

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 SoftwareJazz 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 9.4.5 and earlier	Dexis 10 – V10.1.2.70 and earlier	Dexis 11 – V11.2.2.18 and earlier
Schick CDR DICOM V5	Gendex GxPicture – V3.0.0 to 3.6.0	Eaglesoft Imaging V 15-21
Apteryx V4	Carestream 6.14 and newer	Dentrix Ascend
Sidexis XG	XDR V 3.2.11.6 and earlier	Sota Imaging Cliosoft
TigerView	EZ-Dent i	iDentalSoft
Planmeca	Curve Dental Cloud
Dexis 9 – V 9.4.5 and earlier	Dexis 10 – V10.1.2.70 and earlier	Dexis 11 – V11.2.2.18 and earlier
Schick CDR DICOM V5	Gendex GxPicture – V3.0.0 to 3.6.0	Eaglesoft Imaging V 15-21
Apteryx V4	Carestream 6.14 and newer	Dentrix Ascend
Sidexis XG	XDR V 3.2.11.6 and earlier	Sota Imaging Cliosoft
TigerView	EZ-Dent i	iDentalSoft
Planmeca	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.

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.

Subscription Term. Subscriptions will continue to renew on a monthly 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 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. Jazz Imaging requires auto-payment by credit card. 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 requires 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 compute

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.

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 the receipt of the sensor and return the Sensor within such 30 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 30-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. 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.

Accident Forgiveness – As a courtesy, Jazz Imaging agrees that it will forgive the first incident of accidental damage per the terms of the Standard Warranty. This courtesy applies to the first incident per office location. In the event accidental damaged is noted, Jazz Imaging will contact the office and provide recommendations of proper handling and usage of the Sensor. Accident Forgiveness applies to Jazz Club members only.

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.

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).

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.