Service Agreement

THIS AGREEMENT made and entered into effective TODAY , by and between Teledentistry.com, Inc. a Delaware Corporation and Teladentist PC, Inc. (hereinafter referred to, collectively, as “Teledentistry.com”) and YOU (“hereinafter referred to, collectively, as “DENTAL PRACTICE” WITNESSETH: Whereas, Teledentistry.com is the owner of certain practice management software, including “Teledentistry.com” and related applications designed for dental practices along with providing teledentistry services from licensed dentists;  Whereas, DENTAL PRACTICE is a dental practice with offices in; Whereas, the Parties have agreed that Teledentistry.com shall provide certain marketing tools, software and applications for the benefit of DENTAL PRACTICE under the terms and conditions of this Agreement. NOW THEREFORE, in consideration of the mutual covenants and promises set forth herein, the Parties agree as follow:

1. Practice Management Solution: com shall provide to DENTAL PRACTICE the following Services:
   1. Patient routing, answering and booking services through Teledentistry.com’s exclusive software and application. For purposes of this Agreement, the Service shall include, various Web, email and data base services or other designated websites or IP addresses made available to DENTAL PRACTICE;
   2. Overflow option of emergency dental services through Teladentist PC, Inc’s licensed dentists;
   3. Grant of Access to the Service.eledentistry.com hereby grants to DENTAL PRACTICE a perpetual, non-exclusive, royalty-free, worldwide license (the “Access to Service”) to use the Teledentistry.com software and applications.
      1. DENTAL PRACTICE shall not: (i) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Applications or any part thereof; (ii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software, Applications or any part thereof; (iii) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Applications, including any copy thereof; (iv) sublicense or transfer the Software or Applications; (v) copy the Software or Applications; or (vi) use the Software or Applications in violation of any applicable law.

• Notwithstanding anything to the contrary herein, all rights not specifically granted in the Access to Service shall be reserved and remain always with Teledentistry.com.

1. Proprietary Rights. DENTAL PRACTICE acknowledges and agrees that the copyright, patent, trade secret, and all other Intellectual Property Rights of whatever nature in the Software and Applications are and shall remain the property of Teledentistry.com, and nothing in this Agreement should be construed as transferring any aspects of such rights to DENTAL PRACTICE or any third Party. DENTAL PRACTICE further agrees that Teledentistry.com shall own and retain all right, title, and interest to all enhancements, improvements, and derivatives of the Software, Applications, and to all Intellectual Property Rights related thereto. DENTAL PRACTICE acknowledges and agrees that Teledentistry.com is and shall remain the owner of all copies made by DENTAL PRACTICE.

2. Payment obligations: DENTAL PRACTICE shall pay Teledentistry.com the following amounts in exchange for the Practice Management Solution:

149. Practice Management Solution – $149.00 per each dental practice location per month for inclusion of each location within the Practice Management Solution. All monthly payments shall be made by the fifth day of each month; $99.00 per dental practice location per month is the pricing if five (5) or more dental practice locations are included in the Practice Management Solution. Certain exclusions to the above may apply in the case of group buying discounts, promo codes and other such special promotions.
150. Overflow option – in the event that DENTAL PRACTICE utilizes any service of Teladentist PC, Inc.’s network of dentists to provide dental service for any patient, DENTAL PRACTICE shall pay Teledentistry.com $60.00 per patient encounter. All such payments shall be made by the fifth day of each month.

• Dentist/Patient Relationship. DENTAL PRACTICE acknowledges, understands and agrees that upon the

3. routing of any patient to any dentist within DENTAL PRACTICE, there is the creation of a Dentist/Patient relationship. This relationship requires for DENTAL PRACTICE to undertake any and all reasonable actions in the diagnosis and treatment of the any Patient.  DENTAL PRACTICE hereby affirmatively represents that any dentist within its practice or organization shall be duly licensed in the state of their operation ; shall have no limitations on his/her ability to practice dentistry; and shall carry all necessary types of insurance including, but not limited to, malpractice insurance.
4. Term. The term of this agreement shall be month to month.  The term shall automatically renew on a month-by-month basis unless notice is provided at least thirty (30) days prior to the end of any term.  Either Party may terminate this agreement for cause upon ten (10) days’ written notice.
   1. Cause shall be defined as the occurrence of any of the following: {i} disclosure of the Software to a third Party, whether directly or indirectly, and whether inadvertently or otherwise; {ii} the breach by DENTAL PRACTICE of any of the terms contained herein, which is not cured within ten (10) days after notice; (iii} the cessation of business by DENTAL PRACTICE or any successor or assignee to whom the Software has been properly transferred; or (iv) DENTAL PRACTICE, or any successor or assignee to whom the Software has been properly transferred, makes an assignment of its business for the benefit of creditors, a petition in bankruptcy is filed by or against such Party, a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or part of such Party’s property, or such Party is adjudicated bankrupt.
   2. Consequences of Termination.
      1. Termination of this Contract shall not affect any rights (whether at law or in equity) with respect to any breach of this Contract occurring prior to or following such termination.
      2. Upon termination of this Contract, Teledentistry.com shall be paid: (i) all amounts due and owing to Teledentistry.com; and (ii) all property owned by Teledentistry.com shall be removed from DENTAL PRACTICE’s property following notice to DENTAL PRACTICE.

• DENTAL PRACTICE agrees that immediately upon termination of this Agreement, whether or not DENTAL PRACTICE receives notice of such termination, the Access to Service shall be immediately terminated and DENTAL PRACTICE shall not have any further rights to use the Software or Application. Upon a termination, DENTAL PRACTICE shall immediately return all copies of the Software, Application and access thereto to Teledentistry.com and certify that no additional copies were made.

5. HIPAA Business Associate Agreement
   1. Definitions
      1. Catch-all definitions:

The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Breach Notification, Data Aggregation, Designated Record Set, De-Identified Information, Disclosure (Disclose), Electronic Protected Health Information, Electronic Transactions Rule, Enforcement Rule, Genetic Information, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Sale, Secretary, Security Incident, Security Rule, Subcontractor, Transaction, Unsecured Protected Health Information, and Use.

1. Specific definitions:

(a) “Business Associate” shall generally have the same meaning as the term “Business Associate” at 45 C.F.R. § 160.103, and in reference to the party to this agreement, shall mean Teladentistry.com. (b) “Covered Entity” shall generally have the same meaning as the term “Covered Entity” at 45 C.F.R. § 160.103, and in reference to the party to this Agreement, shall mean DENTAL PRACTICE. (c) “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Part 160 and Part 164. (d) “HITECH Act” shall mean the Health Information Technology for Economic and Clinical Health Act.

1. Obligations and Activities of Business Associate

Business Associate agrees to: (i) Not Use or Disclose Protected Health Information other than as permitted or required by the Agreement or as Required by Law; (ii) Use appropriate safeguards, and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent Use or Disclosure of Protected Health Information other than as provided for by the Agreement; (iii) Report to Covered Entity any Use or Disclosure of Protected Health Information not provided for by the Agreement of which it becomes aware, including Breaches of Unsecured Protected Health Information as required at 45 C.F.R. § 164.410, and any Security Incident of which it becomes aware; (iv) In accordance with 45 C.F.R. §§ 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information; (v) Make available Protected Health Information in a Designated Record Set to DENTAL PRACTICE as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.524, including furnishing upon Covered Entity’s request or direction an electronic copy of Protected Health Information that is maintained in a Designated Record Set; (vi) Make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Covered Entity pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.526; (vii) Maintain and make available the information required to provide an accounting of Disclosures to DENTAL PRACTICE as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.528. (viii)  To the extent the Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 C.F.R. Part 164 (“Privacy of Individually Identifiable Health Information”), comply with the requirements of such Subpart E that apply to the Covered Entity in the performance of such obligation(s); (ix) Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules; (x) Not participate in any Sale of Protected Health Information; (xi) Not Use or Disclose Genetic Information for underwriting purposes in violation of the HIPAA Rules; (xii) Comply with the Electronic Transaction Rule and any applicable corresponding requirements adopted by HHS with respect to any Electronic Transactions conducted by Business Associate on behalf of Covered Entity in connection with the services provided under this Agreement.

1. Representations of Business Associate

Business Associate agrees that it is directly liable under the HIPAA Rules and the HITECH Act and is subject to civil and, in some cases, criminal penalties for making Uses and Disclosures of Protected Health Information that are not authorized by this Agreement or Required by Law. Business Associate also acknowledges that it is liable and subject to civil penalties for failing to safeguard Electronic Protected Health Information in accordance with the HIPAA Security Rule.

1. Permitted Uses and Disclosures by Business Associate

Business Associate shall not Use or Disclose Protected Health Information relating to Covered Entity, except as expressly permitted under and consistent with this Section 4. (i) Business Associate may Use or Disclose Protected Health Information as Required by Law. (ii) Business Associate agrees to make Uses and Disclosures and requests for Protected Health Information consistent with Covered Entity’s Minimum Necessary policies and procedures, a copy of which has been furnished to Business Associate. (iii) Business Associate may not Use or Disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity.

1. Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions
2. Notification of Breach

If Business Associate discovers a Breach of Protected Health Information, the Business Associate shall, following the discovery of the Breach of Unsecured Protected Health Information, notify the Covered Entity of such breach in accordance with this Section.

1. A Breach is treated as discovered by Business Associate on the first day on which such breach is known to Business Associate or, by exercising reasonable diligence, would have been known to Business Associate. Business Associate shall be deemed to have knowledge of a Breach if the Breach is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the Breach, who is an employee, officer, or other agent of Business Associate.
2. Business Associate shall provide the notification required under this Section without unreasonable delay and in no case later than 60 calendar days after discovery of the Breach.
3. The notification shall include, to the extent possible, the identification of each individual whose Unsecured Protected Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired, used, or disclosed during the Breach.
4. Business Associate shall provide the Covered Entity with any other available information that the Covered Entity is required to include in notification to the individual under 45 C.F.R. § 164.404(c) at the time of the notification by Business Associate, and any information that is not then available promptly after such information becomes available. Information to be provided includes, to the extent possible:

(i) A brief description of what happened, including the date of the Breach and the date of the discovery of the Breach, if known; (ii) A description of the types of Unsecured Protected Health Information that were involved in the Breach (such as whether full name, social security number, date of birth, home address, account number, diagnosis, disability code, or other types of information were involved); and (iii) A brief description of what Business Associate is doing to investigate the Breach, to mitigate harm to Individuals, and to protect against any further Breaches.

6. Confidentiality
   1. The Parties shall hold all Confidential Information received from each other as confidential, and shall not use or disclose it to others. The Parties shall maintain security measures designed to: (i) protect the security and confidentiality of the Confidential Information; (ii) protect against any anticipated threats or hazards to the security or integrity of such Confidential Information; and (iii) protect against unauthorized access to or use of such Confidential Information.
   2. In the event that a Party is legally requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or, in the opinion of counsel, by law) to disclose any Confidential Information, then that Party shall promptly notify the other of such request or requirement prior to disclosure so that the affected Party may seek an appropriate protective order and waive compliance with the terms of this Contract.  No license to either Party under any trademark, patent, copyright, or any other Intellectual Property Right is either granted or implied by the conveying of Confidential Information to the receiving Party.  All Confidential Information (including tangible copies and computerized or electronic versions thereof) shall remain the property of the disclosing Party.
   3. Within ten (10) days following the receipt of a written request referencing this Contract and this paragraph from the disclosing Party, receiving Party shall deliver to disclosing Party all tangible materials containing or embodying the Confidential Information. That portion of Confidential Information which has been incorporated into analyses, compilation, comparisons, studies, or other documents prepared by receiving Party or its subcontractors shall be held by receiving Party and kept confidential as provided above or shall be destroyed.
   4. The Parties understand and agree that money damages would not be a sufficient remedy for unauthorized discloser and that each affected Party shall be entitled to seek injunctive or other equitable relief to remedy or forestall any such disclosure or threatened disclosure. Such remedy shall not be deemed to be the exclusive remedy for any breach of this Contract but shall be in addition to all other rights and remedies available at law or in equity. The Parties further acknowledge and agree that the covenants contained herein are necessary for the protection of legitimate business interests and are reasonable in scope.  Neither Party shall release any information for publication or advertising purposes relative to the other Party without the prior written consent.
   5. The Parties shall restrict the knowledge of all Confidential Information to as few as possible of its employees and subcontractors who are directly connected with the Access to Service furnished under this Contract and who have a definite need for such knowledge. Each such person or groups of persons shall be under an obligation of confidentiality no less stringent than that set forth herein, and the disclosing Party shall be solely responsible for Losses associated with its breach of this Article. Each Party will review and verify its personnel’s continued need for access and level of access to Confidential Information on a semi-annual basis.
   6. Neither Party shall have access to any control or operating systems or sensitive electronic or hard data of the other without: (i) prior written consent; and (ii) agreement to comply with the terms of any policies and procedures as required by the disclosing Party. Such written authorization may subsequently be revoked at any time in its sole discretion. 
   7. Each Party shall immediately notify the other, in writing and shall immediately remove its personnel’s access to any Confidential Information when: (i) any such personnel no longer requires electronic or physical access to the Confidential Information, or (ii) the Party reasonably believes such personnel poses a threat to the Confidential Information.
7. Indemnification

Each Party shall indemnify, hold harmless, pay defense costs, and, upon  request, defend, its respective Affiliates and its and their respective officers, directors, employees, parent companies, agents, representatives, subsidiaries, Affiliates, successors, and assigns (collectively “Indemnified Parties”) against all Losses, whether caused by or related to the other Party or its subcontractors or any of their respective employees and agents arising from:

1. Any negligent or willful act or omission by either Party, its subcontractors, or any of their respective employees or agents in connection with their performance of this Contract.
2. Any infringement or misappropriation claim or proceeding related to the Software or Application.
3. Any breach of Article 4 (Confidentiality).
4. Federal, state, and local taxes, penalties and interest (including, but not limited to, any amount paid in professional fees related to such taxes, penalties, and interest) with respect to:
   1. Withholding taxes provided in connection with the Software and/or Applications;
   2. Domestic Sales and Use Taxes; and

• Taxes imposed or withheld on the Software and/or Applications hereunder.

The above indemnification obligations shall not be limited by virtue of workers’ compensation acts, disability benefit acts, or other employee benefit acts in claims made by an employee of a Party, or an independent contractor. Under any circumstances, neither Party shall be able to recover consequential damages, including, without limitation, lost profits, exemplary, special, indirect, incidental or punitive damages.  Teledentistry.com’s liability shall be limited to direct damages and shall not exceed the Fee paid by DENTAL PRACTICE to Teledentistry.com.

8. Representations and warranties
9. Warranty of Title and Exclusive Remedies. Teledentistry.com warrants that it has good title to the Software and Applications and all rights necessary to grant the Access to Service hereunder. DENTAL PRACTICE shall notify Teledentistry.com of the assertion of any claim that the Software or DENTAL PRACTICE’s use thereof under this Agreement violates the Intellectual Property Rights of any other Party, and shall cooperate with Teledentistry.com in the investigation and resolutions on any such claim. Teledentistry.com shall have no liability for any claim of infringement of Intellectual Property Rights due to DENTAL PRACTICE’s modification or conversion of the Software and/or Application and/or the subsequent use of the modification or conversion or use of combination of the Software and/or Application with programs or data not supplied by Teledentistry.com.
10. Warranty Disclaimer. THE WARRANTIES IN SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER CONDITIONS AND WARRANTIES FOR THE SOFTWARE AND ANY MAINTENANCE AND SUPPORT. TELEDENTISTRY.COM MAKES NO OTHER CONDITIONS, GUARANTEES, OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIMS ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE SOFTWARE PROVIDED MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. TELEDENTISTRY.COM ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE SOFTWARE.
11. DENTAL PRACTICE EXPRESSLY UNDERSTANDS AND AGREES THAT TELEDENTISTRY.COM SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF OWNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR THE INABILITY TO USE THE SOFTWARE OR APPLICATION OR ANY OTHER MATTER RELATING TO THE SOFTWARE OR APPLICATION.
12. Miscellaneous:

 

1. Sole Agreement: This Agreement contains the Parties’ sole and entire agreement regarding the subject matter hereof, and supersedes any and all other agreements between them with respect to the specific subject matter hereof;
2. No Other Representations. The Parties acknowledge and agree that no Party has made any representations: (a) concerning the subject matter hereof, or (b) inducing the other Party to execute and deliver this Agreement, except those representations specifically referenced herein. Each Party has relied on its own judgment in entering into this Agreement. The Parties further acknowledge that any verbal statements or representations that may have been made by either of them to the other that have not been set forth in this Agreement are void and of no effect. No Party has relied on any such statements or representations in entering into this Agreement;
3. Modification. Any waivers or modifications of this Agreement, or of any covenant, condition, or limitation contained herein, are valid only if in a writing that is separately signed by the Parties;
4. Waivers. One or more waivers or modifications of any covenant, term, or condition in this Agreement by any Party shall not be construed by any other Party as a waiver or modification applicable to any subsequent breach of the same covenant, term or condition. Evidence of any such waiver or modification may not be offered or received in evidence in any proceeding, arbitration, or litigation between the Parties arising out of or affecting this Agreement, or a Party’s rights or obligations under it.  This limitation does not apply if the waiver or modification is in writing and duly executed by the waiving Party;
5. Construction. The Parties to this Agreement have been represented by competent counsel. This Agreement is therefore deemed to have been jointly prepared by the Parties, and the Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not apply in the interpretation of this Agreement.  The provisions of this Agreement will be interpreted in a reasonable manner to give effect to the intent of the Parties;
6. Attorney’s Fees. If an arbitration or other proceedings are instituted by any Party to enforce any of the terms or conditions of this Agreement against any other Party hereto, the prevailing Party in such proceedings shall be entitled, as an additional item of damages, to such reasonable attorneys’ and other professional fees (including but not limited to expert witness fees) and court costs or costs of such other proceedings as may be fixed by any court of competent jurisdiction, or other judicial or quasi-judicial body having jurisdiction thereof, whether or not such litigation or proceedings proceed to a final judgment or award;
7. Counterparts. This Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original, but such counterparts shall together constitute and be one and the same instrument;
8. Severability. If any part, clause, or condition of this Agreement is held to be partially or wholly invalid, unenforceable, or inoperative for any reason whatsoever, such determination shall not affect any other provision or portion hereof, which shall continue to be effective as though such invalid, inoperative, or unenforceable part, clause or condition had not existed;
9. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors. This Agreement may not be assigned or otherwise transferred by either Party, and any attempted assignment or transfer will be void and of no force or effect whatsoever;
10. Governing Law. All questions concerning this Agreement, its construction and the rights and liabilities of the Parties hereto shall be interpreted and enforced in accordance with the laws of the State of Nevada as applied to contracts which are executed and performed entirely within the state.;
11. Arbitration. In the event that there shall be a dispute over this matter, the parties agree to submit this matter to binding arbitration utilizing the American Arbitration Association Commercial Arbitration Rules.  Any such Arbitration shall be conducted with Clark County, Nevada.
12. Paragraph Headings. The paragraph headings of this Agreement are included for purposes of convenience only, and shall not affect the construction or interpretation of any of its provisions;
13. Capitalized Terms. Except as otherwise expressly provided herein, all capitalized terms defined in this Agreement shall have the meanings ascribed to them herein;
14. Gender and Number. Whenever required by the context, the singular shall include the plural, the plural shall include the singular, and the masculine gender shall include the neuter and feminine genders and vice versa;
15. Notices. Any and all notices and demands relating to this Agreement shall be in writing and shall be validly given or made if served personally or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, or if delivered by a nationally-recognized next-day delivery service that keeps records of deliveries and attempted deliveries (such as FedEx), or if sent by facsimile transmission, which transmission is verified by the recipient or which transmission is immediately followed-up by one of the other methods of delivery permitted hereby. Notices shall be transmitted as follows: In person: 6127 South Rainbow Blvd, Suite 100, Las Vegas, NV. 89118? Via email: support@teledentistry.com
16. Execution. The Parties agree to execute such additional documents and to take such additional actions as are reasonably necessary or desirable to carry out the purposes hereof.  The Parties also agree, acknowledge and represent that all corporate authorizations have been obtained for the execution of this Agreement and for the compliance with each and every term hereof.  Each undersigned officer represents that he or she has the authority to execute this Agreement on behalf of the Party for whom he or she is signing.
17. No Partnership. Nothing contained herein or in any schedule, attachment, or exhibit hereto shall create any partnership, joint venture or other business association between the Parties hereto.
18. Third Party Beneficiaries. No term or provision of this Agreement is intended to be, or shall be, for the benefit of any Person, firm, organization or corporation not a Party hereto, and no such other Person, firm, organization or corporation shall have any right or cause of action hereunder.