“DentalMaster” hereinafter referred to as Mdsimulation LTD.
THIS MASTER SUBSCRIPTION AGREEMENT (the “Agreement”) is effective as of the date of Customer’s Order Form (“Effective Date”) and is by and between the customer identified on the applicable Order Form and “DentalMaster”. The parties agree as follows:
As a “DentalMaster” subscription holder, “DentalMaster”will provide the Customer with the following:
- License to use “DentalMaster” Cloud. DirectInfo and Medconsult software
- Support services, including user support, updates and patches related to the Software, as described herein and in exhibit B (the “Support”)
- Support Review, as described in exhibit B
- The right to order consulting, development and training services (Professional Services), as described in exhibit B
(collectively the “Order”) as set forth in the Order Form.
2. CUSTOMER’S OBLIGATIONS
The Customer shall contribute to facilitating “DentalMaster” performance of its duties under the Agreement.
Hereunder, the Customer agrees to act in a cooperative manner and upon request to supply “DentalMaster” with information necessary for the performance of the agreed Orders. If the requested information is not made available to “DentalMaster” within 3 days of request “DentalMaster” will act on the available information or wait until the information is made available. Such delay does not affect the Customer’s payment obligation under the Agreement.
The Customer is obliged to procure Support in accordance with the terms of the Agreement for all its use of “DentalMaster” software.
If it is clear that the Customer has been under-reporting the extent of use of “DentalMaster” software the underreporting is to be considered a material breach of the Agreement. If so, “DentalMaster” may cancel the agreement and/or claim the Customer for past non-payment at the agreed prices multiplied by a factor of two. Future payment shall take place in accordance with the agreed unit prices.
The Customer shall pay all fees as stated in the Order Form or as otherwise obliged to. Fees and expenses listed in the Order Form are exclusive of taxes and expenses.
The Customer agrees to pay any sales, value-added, source/withholding or similar taxes imposed by applicable law. This shall imply that “DentalMaster” shall receive, free from liability for any withholding tax, a net amount equal to the amount “DentalMaster” would have received and retained without the withholding tax.
In addition, Customer shall reimburse “DentalMaster” for agreed expenses related to providing any additional Services. If not otherwise agreed, payment shall be on a time and material basis.
Documented and reasonable travel and lodging expenses are billed additionally
Customer shall pay fees and expenses within thirty (30) days of invoice, without deduction or setoff.
Customer shall pay interest, at a rate equal to 1.5% per month on any amount that remains unpaid thirty (30) days after invoice date, compounded quarterly.
If Customer fails to pay fees within thirty (30) days of invoice, “DentalMaster” may suspend its performances under the Agreement until payment, including interest on late payment is received by “DentalMaster”. The obligation to pay the agreed fees will for the duration of the Agreement not be affected by any such suspension.
“DentalMaster” may adjust the fees upon the renewal of the contract (section 8), upon thirty (30) days’ notice.
Payment must take place by wire transfer or other electronic means of bank transfer. If the customer chooses to use another form of payment, e.g. paper checks, an additional fee will be levied per payment.
4.1. Confidential information
“Confidential Information” is any information disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with the Services, and clearly marked as confidential or identified in writing to the Receiving Party as confidential at the time of disclosure.
4.2. Restrictions and obligations
The Receiving Party shall: (a) only disclose the other party’s Confidential Information to employees or contractors with a need to know, (b) not disclose Confidential Information to any third party without Disclosing Party’s prior consent; and (c) not use or reproduce Confidential Information except as required to accomplish the purpose of the Agreement. However, the Receiving Party may disclose Confidential Information in accordance with a judicial or other binding governmental order.
All Confidential Information shall remain the property of the Disclosing Party and shall be returned (or, at the Disclosing Party’s option, destroyed) within ten (10) business days upon written request.
5. INTELLECTUAL PROPERTY RIGHTS – LICENSE GRANT
Neither party transfers any copyright and other intellectual property rights under the Agreement to the other party. However, the Customer is licensed to use the Software as stipulated in the “DentalMaster” EULA and the Order Form.
6. SERVICE WARRANTY AND DISCLAIMER
“DentalMaster” warrants that the Services will be performed in a professional manner consistent with industry standards. The Customer must notify “DentalMaster” of any deficiencies without undue delay, and always within 15 days from performance of the defective Service, if the claim is not to lapse.
In case of breach of warranty, “DentalMaster” sole obligation, and Customer’s exclusive remedy, shall be for “DentalMaster” to re-perform the deficient Service. If “DentalMaster” cannot substantially correct a breach in a commercially reasonable manner, the Customer may terminate the relevant Service and claim the fees paid for the relevant Service reimbursed. Such reimbursement will cover only fees related to the period between the Customer’s notification and the day Service is terminated.
Except as provided in the paragraph above (breach) the Services are provided to Customer “as-is” without any warranties of any kind, express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, integration, non-infringement, title, performance or accuracy or any implied warranties arising from statute, course of dealing, course of performance, or usage of trade.
The Software warranty is stipulated in exhibit A.
7. LIMITATION OF LIABILITY
Neither party is liable under the Agreement for any indirect, reliance, punitive, consequential, special, exemplary, or incidental damages of any kind and however caused. “DentalMaster” maximum liability for any claim arising out of or related to the Agreement shall be limited to the amount of the total fees paid to “DentalMaster” under the Agreement by Customer during the twelve (12) months preceding any such claim.
The provisions of this section 7 allocate risks under the Agreement between Customer and “DentalMaster”. “DentalMaster” fees for the Software and Services reflect this allocation of risks and limitation of liability.
8. TERM AND TERMINATION
The Agreement is effective for the period stated in the Order Form, for the individual Software or Service in question, calculated from the Effective Date. Thereafter, the Agreement shall automatically be renewed for another year, unless terminated by either “DentalMaster” or Customer with at least ninety (90) days prior written notice before the end of any one period.
Either party may terminate the Agreement in the event of material breach of contract that is not cured within thirty (30) days of written notice.
Any regulation that by its nature is meant to survive the Agreement (e.g. fees, non-disclosure, and limitation of liability) shall remain effective after termination.
a) The Agreement shall be governed by the laws of Israel. For all disputes arising out of the Agreement, the parties consent to the jurisdiction of the courts of Tel-Aviv, Israel. If required for collection purposes or other enforcement, “DentalMaster” may, at its sole discretion, elect the jurisdiction and courts of the Customer, or arbitration.
b) Unless otherwise specified in the Agreement, all notifications shall be in writing and shall be sent via email or mail (via registered or certified, return receipt requested), to the address stated on the Order Form. All notifications shall be effective upon receipt.
c) Either party shall issue written notice of any claim or complaint they may have without undue delay (never exceeding 15 days), calculated from the time the claimant was or should have become aware of the circumstances forming the basis for the claim. Other than claims for subscription fees and interest thereon, neither party may bring any claim based on or arising under this Agreement (whether relating to the Software or Services) more than twelve (12) months after the cause of action accrues.
d) During the term of the Agreement the Customer agrees to have the Customer’s name and logo included for marketing purposes on “DentalMaster” customer list and website. “DentalMaster” shall comply with any use policies provided by the Customer.
e) The Customer may not transfer any of its rights under the Agreement without the prior and express written consent of “DentalMaster”.
f) “DentalMaster” may, due to organizational needs, transfer its rights and obligations under the Agreement to other companies within “DentalMaster” group of companies. A company is a member of “DentalMaster” group of companies if “DentalMaster” holds a controlling stake in the company. The right to payment under the Agreement may be freely assigned. Such assignment does not release “DentalMaster” from its obligations under the Agreement.
g) All amendments to the Agreement must be in writing, executed by both parties and expressly state that they are amending the Agreement.
h) Customer Purchase Orders shall be for the sole Customer internal purpose of confirming quantities, prices and describing the Order as it is stipulated in the Order Form. Purchase Orders or other terms presented by the Customer deviating from the Order Form shall not be effective between the parties unless expressly accepted by “DentalMaster” in writing. The Customer shall in all events be deemed to have accepted the terms of the Agreement upon its first use of the Software or Service, if no such express acceptance is issued by “DentalMaster”.
i) Force majeure. Neither party shall be liable for failures or delays in performance due to causes beyond its reasonable control, which it could not reasonable foresee or mend the consequences of, including, fire, earthquake, flood, storm, natural disaster, accident, pandemic, labor disputes, civil disobedience, act of terrorism or act of government. However, the inability to meet financial obligations is expressly excluded. Both parties hereto agree to use their best efforts to minimize the effects of such failures or delays.
j) Entire agreement. This Agreement shall govern all of Customer’s purchases of Software and Services subscription from and after the Effective Date. The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
10. ORDER OF PRECEDENCE
In the event of any inconsistencies between the documents making up the Agreement, the following order of precedence shall apply:
- Order Form
- This Agreement document
- Exhibits (A and B)
EXHIBIT A – SOFTWARE
1. FREE LICENSE
Included for informational purposes only:
Redistribution and use in source and binary forms, with or without modification, are not allowed.
THIS SOFTWARE IS PROVIDED BY THE AUTHOR AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL AUTHOR OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
2. “DentalMaster” LICENSE
2.1. The Software
The following “DentalMaster” License (“DPL”) shall apply to the “DentalMaster” software, which includes:
- DentalMaster Cloud
- PreConsult(collectively the “Software”).
2.2 Consecutive license grant (subscription)
The Software is licensed on a consecutive basis (subscription). As a paying subscriber to the Support the Customer is entitled to a license to the Software as stated herein and in the Order Form, as renewed in accordance with the Agreement document section 8. Other licensing of the Software than consecutive licensing is subject to separate written agreement.
Subject to the terms of this (“DPL”), the Agreement and payment of the correct subscription fees, “DentalMaster” hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable and limited license to install, use, and study the Software for use within its organization on the number of Servers (virtual or physical) for the duration stated in the Order Form and section 2.2.1.
2.2.3. License restrictions
Customer may not (and may not allow any third party):
a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from any encrypted or encoded portion of the Software, in whole or in part, except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions (provided, Customer provides “DentalMaster” with thirty (30) days prior written notice and all reasonably requested information to allow “DentalMaster” to assess Customer’s claim and, at “DentalMaster” sole discretion, to provide alternatives that reduce any adverse impact on “DentalMaster” intellectual property or other rights);
b) sell, sublicense, rent, lease, distribute, market, or commercialize for any purpose, including timesharing or service bureau purposes: (i) the Software, (ii) any modified version or derivative version of the Software, or (iii) any “DentalMaster” software, whether modified or not, licensed under an open source license;
c) create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights that violate any technical restrictions in the Software;
d) remove any product identification, proprietary, copyright or other notices contained in the Software;
e) modify or create a derivative work of any portion of the Software;
f) install any new or additional copies of any open source version of “DentalMaster” software on the Customer’s computers or
g) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.
4. INTELLECTUAL PROPERTY RIGHTS
“DentalMaster” and its suppliers do not transfer any copyrights or other intellectual property rights relating to the Software to the Customer. Such rights are protected by intellectual property legislation in most jurisdictions and by international treaties. “DentalMaster” and its suppliers retain all rights to the Software that are not expressly granted to the Customer through this “DPL”.
“DentalMaster” may terminate the “DPL” if the Customer fails to comply with the terms of this “DPL”, hereunder fails to pay the stipulated fees. In the event of such termination, the Customer shall immediately stop using the Software and Support, return any received media and documentation, and destroy or permanently delete any installed versions of the Software (including documentation), and confirm such destruction or deletion in writing within 7 days.
“DentalMaster” warrants that the Software will operate in all material respects as described in the applicable software documentation.
Except as provided in the paragraph above and to the maximum extent permitted by law, “DentalMaster” disclaims any warranty for the Software. The Software and any related documentation is provided on an “as is” basis without warranty of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose or non-infringement. Hereunder the parties acknowledge that “DentalMaster” does not warrant for the absence of any errors in the Software, and that any such errors do not constitute a contractual defect.
6. THIRD-PARTY TERMS
For third-party software that is made available to the Customer by “DentalMaster”, the current terms of the relevant third party software supplier shall apply.
EXHIBIT B – SERVICES
This exhibit describes the two categories services offered under the Agreement and specified in the Order Form (the «Services»).
Category 1: Support
Upon payment of the correct subscription fees under the Agreement (including Order Form) the Customer is entitled to enjoy the Support (see section 1).
Category 2: Professional services
As a subscription holder, the Customer may also procure professional services at an additional charge (see section 2).
1.1. Support services
During the subscription period “DentalMaster” will provide the Customer with support as described in this section 1 (“Support”).
Support consists of:
a) updates and new versions of the Software when such updates are made generally available to “DentalMaster” customers,
b) advice on use of the Software,
c) assistance to identify solutions or workarounds to problems with the Software,
d) advice on the configuration of the Software,
via email, chat and/or phone as described below in section 1.2 for the relevant support levels.
1.2. Support levels
See Order Form for applicable support level.
|Support element||Support Level|
|No of support requests||5 per year**|
|Availability||Business hours (9am-5pm)|
|Support Review||Optional *|
|Access to knowledge base||Yes|
|On-site consultancy||Optional *|
* Subject to additional payment.
**We do not guarantee the time delay for response times.
1.3. Severity levels
Severity A means that the Software does not work and no work-around exists. Applicable to production use only.
Severity B means that the Software’s main functions or processes are materially affected, causing significant impact to the Customer’s use. Applicable to production use only.
Severity C means limited impact on some of the Software’s functions or processes, without stopping the Customer’s use of the Software. Applicable both to production use and testing.
Severity D means Customer inquiry concerning product installation, configuration, use and performance, or a request for feature development.
1.4. Support Review
Support Review includes either initial:
a) review of the Customer’s existing setup and environment, or
b) assistance with initial product installation, configuration, and tuning.
Both review services may be supplied subject to applicable fees. Please inquire with our online support at DentalMaster.com.
|Review as described in a) above||Optional*|
|Assistance, as described in b) above||Optional*|
Subject to additional payment.
1.5. Support request
The Customer must report each support request via email to firstname.lastname@example.org, our Online support or Whatsapp Number .
If the request is a Severity A or B request, the Customer must also notify “DentalMaster” via phone at +32 2 5881911 or https://api.whatsapp.com/send/?phone=32475249287&text&app_absent=0.
1.6. Supported Software Versions
“DentalMaster” will only provide Support for the latest version of the Software except in the following cases:
- Minor versions (as determined by “DentalMaster”) of the Software: Supported for 30 days after a new version has been released.
- Major version (as determined by “DentalMaster”) of the Software: Supported for 12 months after a new major version (as determined by “DentalMaster”) has been released.
If Customer reports an error in the Software that is corrected in a later released version of the Software Customer is required to upgrade.
2. PROFESSIONAL SERVICES
As an active and paying subscription holder under the Agreement, “DentalMaster” may offer the Customer Professional Services on a time and material basis. Such services may include:
a) General advice
b) Setup Services
c) Custom development
d) Training Services
Such services will be described and agreed upon in a separate agreement (Statement of Work) attached to an Order Form between “DentalMaster” and the Customer.