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SprintRay Inc. Technology Pricing Terms and Conditions (“Terms”) for Europe

Effective as of 29.07.2022 [Valid only in the EU.] I Archived versions

 

INTRODUCTION

These Terms are the only terms or conditions which apply to contracts between SprintRay US Inc., our subsidiaries, or affiliates, as applicable (“SprintRay”), and any Customer (“our Customer” / “Customer”) for purchases of Design Services (“Design Services”), except to the extent where we have expressly otherwise agreed in writing. These Terms apply to all aspects of the relationship between SprintRay and Customer from the time that Customer first accesses our systems or uses our software, whether to place an order for Services (“Customer Orders”), or to provide patient information for the purpose of placing such orders, or to obtain access to SprintRay branding or marketing materials. No other terms shall apply to the relationship between SprintRay and our Customer for the purchase of Products or Services, whether implied or otherwise, except to the extent of other terms expressly agreed to in writing by SprintRay.

CUSTOMER SYSTEM ACCESS

If Customer uses SprintRay software, accesses our Information Technology (IT) systems, including any SprintRay website, SprintRay’s online store and/or the SprintRay Rayware software (together “SprintRay Systems”), Customer does so with the permission of SprintRay, for the purpose of a good faith relationship with SprintRay, for ordering Products or Services offered by SprintRay from time to time. Use of Rayware software is subject to the terms of the SprintRay software license. These Terms govern Customer’s use of SprintRay Systems and the processes and requirements for ordering Products and Services and Customer agrees to be bound by them in consideration for SprintRay providing Customer with access to the SprintRay Systems.

Customer Orders are placed or submitted using SprintRay Systems and are considered to be placed or submitted, pending acceptance by SprintRay, upon payment and acceptance of the Terms and Conditions. The price applicable to a Customer Order will be the price current at the time the Customer Order is placed. Customer Orders are accepted by SprintRay sending the Customer a confirmation email or as indicated on the SprintRay Systems.

IDENTIFICATION OF SPRINTRAY’S CUSTOMER

SprintRay’s Customer is the licensed doctor whose SprintRay customer identity number (allocated to a single individual only) is used to access the password protected SprintRay Systems (“Customer Doctor”). Customer represents and warrants that Customer is, and at all times during Customer’s use of the SprintRay Systems and Design Services, will continue to be, duly licensed to practice dentistry and in good standing under the laws of the State in which Customer is using the SprintRay Systems and Design Services, and will maintain his or her practice and professional duties in accordance with the current medical standards in the community. If a practice, partnership, corporate body or other legal entity for or with which the Customer Doctor works is named on SprintRay invoice(s) and/or that practice pays SprintRay’s invoices, then SprintRay is entitled to assume that it is the Customer Doctor who uses SprintRay’s Systems and places Customer Orders with the authorization of, for and on behalf of such practice, partnership, corporate body or other legal entity (the “Practice”). Under these circumstances, the Practice will also be SprintRay’s Customer and the Customer Doctor and the Practice will be bound by these terms and jointly and severally liable for any and all obligations set forth herein which are obligations of the Customer.

The Customer Doctor and the Practice must read and understand these Terms before downloading any materials or software, uploading Patient information or placing any Customer Order, because in each case, a contract will be formed, and Customer will be bound by these Terms which will govern that contract. Customer and any agent, employee, consultant or other representative of the Customer (each a “Customer Agent”) are bound by the contents of this document. It is, therefore, the responsibility of the Customer or Customer Agent placing the Customer Order, to communicate the contents of this document to all employees and other staff of their Practice.

LIMITATION OF LIABILITY

These Terms contain limitations on and exclusions to SprintRay’s liability. Customer acknowledges that the medical, dental or professional skill of Customer and/or Customer Agents is critical in the assessment of the fitness of the Design Services and, specifically, the fitness of the Design for the intended treatment. SprintRay makes no representations as to the appropriateness of its Design Services or SprintRay Systems, or as to the accuracy of any information provided through or in connection with the Design Services or SprintRay Systems, relative to diagnostic or treatment options for any specific patient, and Customer and Customer Agents should rely on their own medical, dental and/or professional judgment in making diagnostic and treatment decisions with respect to their patients. Customer acknowledges that they and Customer Agents are not relying on SprintRay in any way with respect to such decisions, and that Customer is solely liable to their patient for accurate diagnosis, choice of treatment, medical recommendations or advice, appropriate specifications for treatment design, any medical, dental or orthodontic end-product designed by Customer for patients (“End-Product”) using the Design Services and/or SprintRay systems , patient care plan, smile design, and any derivative thereof, without limitation.

ALL SERVICES PROVIDED BY SPRINTRAY TO CUSTOMER VIA THE SPRINTRAY SYSTEMS INCLUDING, WITHOUT LIMITATION, ALL DESIGN SERVICES AND FINAL DESIGNS ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. SPRINTRAY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SPRINTRAY MAKES NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILTY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY, ACCESSIBILITY OR AVAILABILITY OF THE SPRINTRAY SYSTEMS OR ANY CONTENT POSTED ON OR OTHERWISE ACCESSIBLE VIA THE SPRINTRAY SYSTEMS. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT SPRINTRAY IS NOT LIABLE FOR ANY INJURY OR DAMAGES CAUSED BY ANY END-PRODUCT PRODUCED OR DESIGNED USING THE SPRINTRAY SERVICES OR ANY DESIGN SERVICES RENDERED TO CUSTOMER.

IN NO EVENT SHALL SPRINTRAY OR ANY OF ITS THIRD-PARTY LICENSORS BE LIABLE TO CUSTOMER, CUSTOMER’S PATIENTS OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIALOR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF INFORMATION OR DATA, TRANSACTION LOSSES, OPPORTUNITY COSTS, INTERRUPTION OF BUSINESS OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO CUSTOMER’S USE OF THE SPRINTRAY SYSTEMS, THE DESIGN SERVICES, OR THE CONTENT, DATA, OR INFORMATION ACCESSED VIA THE SPRINTWAY SYSTEMS OR ANY RELATED SYSTEMS OR OTHERWISE PROVIDED IN CONNECTION WITH THE DESIGN SERVICES, OR DISRUPTION OR DELAY IN THE PROVISION OF SERVICES, REGARDLESS OF THE FORM OF CLAIM OR ACTION, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILTY, STATUTE OR OTHERWISE, AND REGARDLESS OF WHETHER OR NOT SUCH DAMAGES WERE FORESEEN, UNFORESEEN OR FORESEEABLE, EVEN IF SPRINTRAY OR ITS THIRD-PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.

In no event shall SprintRay’s aggregate liability to Customer in connection with Customer’s use of the SprintRay Systems or any Design Services rendered to Customer, whether arising from breach of contract, tort (including negligence) or otherwise, exceed the total amount paid by Customer to SprintRay under the applicable Customer Order(s).

INDEMNITY

Customer agrees to defend, indemnify and hold harmless SprintRay and its affiliates, licensors and service providers, and its and their respective employees, officers, directors, members, attorneys, agents, representatives, successors and assigns (each, an “Indemnitee”) from and against any and all claims, causes of action, demands, liabilities, damages, judgments, awards, losses, penalties, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to Customer’s or any Customer Agent’s use of the SprintRay Systems, Design Services or receipt of any Customer Order.

INVOICE PAYMENT DATE

Services are rendered on a “Pay as U Go” model. Customer’s credit card is charged upon submission of the Customer Order and acceptance of the Terms and Conditions.

ART AND ADVERTISING STANDARDS

Any use by Customer of SprintRay trademarks, logos or copyright materials is under a non-exclusive license as set out in and subject to SprintRay Marketing Standards and Advertising Agreement which may be amended from time to time.

DATA PROTECTION

1. DEFINITIONS

1.1. “Applicable Data Protection Laws” means all applicable laws and regulations relating to the processing of personal data and privacy, the GDPR and any enactment, statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated and the terms “controller”, “personal data”, “processor”, “processing” and “process” shall have the meanings given to those terms in such data protection laws and regulations.


1.2. “Customer Personal Data
” means any personal data which SprintRay processes in connection with these terms and conditions, in the capacity of a processor on behalf of the Customer.


1.3. “Data Protection Losses
” means all liabilities, including all:

a) costs (including legal costs), claims, demands, actions, settlements, interest, charges, procedures, expenses, losses and damages (including relating to material or non-material damage); and

b) to the extent permitted by applicable law:

  1. administrative fines, penalties, sanctions, liabilities or other remedies imposed by a Supervisory Authority;
  2. compensation which is ordered by a Supervisory Authority to be paid to a data subject; and
  3. the reasonable costs of compliance with investigations by a Supervisory Authority.

1.4.GDPR” means the General Data Protection Regulation ((EU) 2016/679).

2. DATA PROTECTION

2.1. For the purposes of this Data Protection Clause, the terms “data subject” and “personal data breach” shall have the meaning given to them in the Applicable Data Protection Laws.

2.2.
The Customer shall own all right, title and interest in and to all of the Customer Personal Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Personal Data. SprintRay shall not be responsible for any loss, destruction, alteration or disclosure of Customer Personal Data caused by any third party.

2.3.
Both Parties will comply with all applicable requirements of Applicable Data Protection Laws. This Data Protection Clause is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under Applicable Data Protection Laws.

2.4.
The Parties have determined that, for the purposes of Applicable Data Protection Laws:

a) the Customer shall act as controller of the Customer Personal Data; and

b) SprintRay shall process the Customer Personal Data as a processor on behalf of the Customer.

Should the above determination change, then each Party shall work together in good faith to make any changes which are necessary to this Data Protection Clause.

2.5. The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to SprintRay and lawful collection of the same by the Customer for the duration and purposes of these terms and conditions.

2.6.
In relation to the Customer Personal Data, Schedule [1] sets out the scope, nature and purpose of processing by SprintRay, the duration of the processing and the types of Personal Data and categories of data subject.

2.7. SprintRay shall, in relation to Customer Personal Data:

a)
process that Customer Personal Data only on the documented instructions of the Customer, unless SprintRay is required by applicable laws to otherwise process that Customer Personal Data. Where SprintRay is relying on applicable laws as the basis for processing Customer Processor Data, SprintRay shall notify the Customer of this before performing the processing required by the applicable laws unless those applicable laws prohibit SprintRay from so notifying the Customer on important grounds of public interest. SprintRay shall inform the Customer if, in the opinion of SprintRay, the instructions of the Customer infringe the Data Protection Laws;

b)
implement appropriate technical and organisational measures (in particular those required under the GDPR) to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, having regard to the state of technological development and the cost of implementing any measures;

c)
ensure that any personnel engaged and authorised by SprintRay to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;

d) assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to SprintRay), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

e)
notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;

f)
at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of this Agreement unless SprintRay is required by applicable law to continue to process that Customer Personal Data. For the purposes of this Clause (f)Customer Personal Data shall be considered deleted where it is put beyond further use by SprintRay; and

g)
maintain records to demonstrate its compliance with this Data Protection Clause.

2.8.
The Customer hereby provides its prior, general authorisation for SprintRay to:

a) appoint processors to process the Customer Personal Data, provided that SprintRay:

  1. shall ensure that the terms on which it appoints such processors comply with the Applicable Data Protection Laws and are consistent with the obligations imposed on SprintRay in this Data Protection Clause.
  2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of SprintRay; and
  3. shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to SprintRay’s reasonable satisfaction, that the objection is due to an actual or likely breach of the Applicable Data Protection Laws, the Customer shall indemnify SprintRay for any losses, damages, costs (including legal fees) and expenses suffered by SprintRay in accommodating the objection;

b) transfer Customer Personal Data outside of the EEA as required for the purpose of SprintRay providing the Services, provided that SprintRay shall ensure that all such transfers are effected in accordance with the Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of SprintRay, including any request to enter into standard data protection clauses adopted by the European Commission from time to time.

3. WARRANTIES


3.1
The Customer warrants to SprintRay that:

a) Personal Data sourced by the Customer for use in connection with the Design Services shall comply in all respects, including in terms of its collection, storage and processing (which shall include the Customer providing all of the required fair processing information to, and obtaining all necessary consents from data subjects in connection with the Design Services and such consent shall be confirmed to SprintRay on request), with the Applicable Data Protection Laws;

b)
all instructions given by it to SprintRay in respect of Personal Data shall at all times be in accordance with the Applicable Data Protection Laws;

c)
it is satisfied that:

  1. SprintRay’s processing operations are suitable for the purposes for which the Customer proposes to use the Design Services and engages SprintRay to process the Personal Data; and
  2. SprintRay has sufficient expertise, reliability and resources to implement technical and organisational measures that meet the requirements of the Applicable Data Protection Laws; and

d) It will respond to enquiries from data subjects and any relevant data protection Supervisory Authority concerning the processing of the Personal Data by the Customer, unless the Parties have agreed that SprintRay will so respond, in which case the Customer will still respond to the extent reasonably possible and with the information reasonably available to it if the Customer is unwilling or unable to respond. Responses will be made within a reasonable time and in accordance with the Applicable Data Protection Laws.

3.2. The Customer shall indemnify and keep indemnified SprintRay in respect of all Data Protection Losses suffered or incurred by, awarded against or agreed to be paid by, SprintRay and any sub-processor of the SprintRay arising from or in connection with any:

a) non-compliance by the Customer with Applicable Data Protection Laws;

b) processing carried out by SprintRay or any sub-processor pursuant to any processing instruction from the Customer that infringes Applicable Data Protection Laws; or

c)
breach by the Customer of any of its obligations, warranties and representations under this Agreement,

except to the extent SprintRay is liable under this Data Protection Clause.

3.3. The Customer acknowledges that SprintRay is reliant on the Customer for directions as to the extent to which SprintRay is entitled to use and Process the Customer Personal Data.

LAW AND JURISDICTION APPLICABLE TO THESE TERMS

Law. Customer and SprintRay agree that these Terms, and any other contracts between the parties, and any dispute or claim arising out of or in connection with any such contract or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the State of California.

Jurisdiction. Customer and SprintRay agree that any and all disputes or claims arising out of or relating to these Terms or Customer’s use of the SprintRay Systems or Design Services, except for indemnity claims asserted by SprintRay or its Indemnitees, shall be brought in the United States District Court for the Central District of California or, in the event that such court lacks subject-matter jurisdiction, in a state court of the State of California. SprintRay and its Indemnitees may in their discretion assert indemnity claims in the foregoing courts or in any other court or forum having jurisdiction over such claims. Customer waives any right it may have to object to jurisdiction or venue, or to assert the doctrine of forum non conveniens, in any proceedings brought in accordance with this paragraph.