Dental Management System (DMS) Legal Agreements

Dental Management System (DMS)
PLEASE READ THISAGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING THE TERMS OF SERVICE, YOUR LEGAL RIGHTS AND REMEDIES.
1.WHEREAS

Definitions:

“Application” means
the service known as DMS (Dental Management System). Service which contains two parts:
1. Financial Solution: Calculate dental professional earning.
2. Dental Professional Portal: Dentist can have their personal and professional information.

“Customer” means a party that engages Silicon to provide the Application whether on a trial basis or not under this Agreement

“Application Service Provider (ASP)” means business providing computer-based services to customers over a network; such as access to a particular software application using a standard protocol HTTP.

1. Silicon Technix Limited (Silicon) provides access to the Application described herein in its capacity as an Application Service Provider.

2. The Customer wishes to access the Application described herein as hosted by Silicon under a non-exclusive License, from a remote location, in return for the payment of a monthly fee and subject to the terms and conditions of this Agreement.

2.OVERVIEW
This Agreement is entered into by and between Silicon and the Customer, and is made effective as of the date of the Customer’s use of the Application or the date of electronic acceptance. This Agreement sets forth the general terms and conditions of your use of the Application.
Whether the Customer is simply browsing or using this Application, the use of this and electronic acceptance of this Agreement signifies that the Customer has read, understand, acknowledge and agree to be bound by this Agreement, along with the following policies and the applicable product agreements.

3.THE SERVICE
3.1 Silicon shall, with effect from the Commencement Date, provide
the Application to the Customer on a non-exclusive basis for the duration of the Term of this Agreement and in accordance with the terms and conditions of this Agreement.
3.2 Silicon shall provide access to the Application through the ASP Infrastructure and shall use its best and reasonable endeavours to ensure that such access is available, without interruption, 24 hours a day, 7 days a week, 365 days a year. This undertaking shall be subject to the exceptions contained in Clauses 5, 12, 18 and 19 of this Agreement.

4.TERM
4.1 The Application will be provided by Silicon during the term of this Agreement (the “Term”), which shall commence on the Commencement Date and will continue unless otherwise terminated in accordance with Clause 19 of this Agreement.
4.2 The Term may be renewed on the same terms and conditions as set out in this Agreement for a further period, upon the mutual consent of both Parties.

Fees and Payment

4.3 The Fee due for the Application is specified on www.dentalmanagementsystem.com.
4.4 The Customer shall pay to Silicon the Feein advance.
4.5 The Fees can be refunded within 20 days if the Customer is not satisfied.
4.6 Silicon reserves the right to vary the Fee from time to time as it may deem appropriate. The Customer shall receive 30 days’ written notice of any such variation. Such variations shall take effect upon expiry of such notice.

5.TRAINING
Silicon will provide the tutorials and articles for the guidance of the Customer. In the event that the Customer requires training in order to use the Application, it shall be the responsibility of the Customer to ensure that all Users are appropriately trained and to bear any costs associated with such training.

6. SECURITY
6.1 Silicon shall ensure that at all times the ASP Infrastructure includes Data Security and Secured Logins.The encryption algorithms like Triple DES and MD5 are applied on the data where needed to secure the data too.
6.2 Silicon shall make Monthly backups of all data on the ASP server. Such backups will be made to server. Customer can take back up any time. The cost ofauto backup will be borne by the Customer.

7. MAINTENANCE
7.1 Silicon shall be responsible for all maintenance and upgrades to the ASP Infrastructure which may from time to time be required.
7.2 Subject to the provisions of Clause 12, the Customer shall be responsible for all maintenance and upgrades to the ASP Infrastructure which may from time to time be required.
7.3 Whenever possible, Silicon shall use its best and reasonable endeavours to undertake maintenance work outside of the Customer’s business hours.

8. SOFTWARE LICENCES

8.1 The Customer shall use the Application under a non-exclusive, non-transferrable licence, as set out in this Agreement. This licence permits a maximum number of Users (licensed purchased by the Customer) to access the Application at any given time and such access is only permitted through Web Application
8.2 The Application provided by Silicon is the property of Silicon.

9. APPLICATION AND ASP INFRASTRUCTURE TERMS OF USE
9.1 A maximum number of licensed Users may access the Application through the ASP Infrastructure at any given time.
9.2 Users’ access to the Application and the ASP Infrastructure shall be controlled by means of User Name and Password.
9.3 Should the Customer require an increased maximum number of Users, such an increase shall be permitted at the exclusive discretion of Silicon. Silicon reserves the right to increase Fees proportionately, in the event of an increase in the maximum number of Users.
9.4 The Customer shall use the Application exclusively for the purposes of carrying on its business of dental management.
9.5 Silicon shall monitor the Customer’s use of the Application and ASP Infrastructure from time to time to ensure compliance with the terms and conditions of this Agreement.
9.6 The Customer may only access the Application to this Agreement. No access to other parts of the ASP Infrastructure shall be permitted in the absence of express written permission from Silicon.
9.7 The Customer is exclusively responsible for its use of the Application, including the conduct of individual Users and must ensure that all use is in accordance with this Agreement. The Customer shall notify Silicon immediately of any breaches of this Agreement.
9.8 Access to the Application is only permitted through Web Application, via the ASP Infrastructure. Under no circumstances may the Customer download, store, reproduce or redistribute the Application or any other part of the ASP Infrastructure, without first obtaining the express written permission of Silicon.
9.9 The Customer’s use of the Application and ASP Infrastructure may, from time to time, be governed by statutory or regulatory rules and requirements external to the terms and conditions of this Agreement. It shall be the Customer’s exclusive responsibility to ensure that their use of the Application is in compliance with any such laws.
9.10 The Customer’s use of the Application shall be subject to the following limitations, any of which may be waived by Silicon giving their express written consent:
9.10.1 The Customer may not use or redistribute the Application or the ASP Infrastructure for the purpose of conducting the business of an Application Service Provider;
9.10.2 The Customer may not redistribute or reproduce the Application or the ASP Infrastructure through any network; and
9.10.3 The Customer may not allow any unauthorised third party to access the Application or the ASP Infrastructure.
9.11 Neither the Customer, nor anyone on their behalf may, in the absence of written consent from Silicon:
9.11.1 Make changes of any kind to the Application or the ASP Infrastructure; or
9.11.2 Attempt to correct any fault or perceived fault in the Application or the ASP Infrastructure.

10. CUSTOMER COMPUTER SYSTEMS

10.1 The SSL Certificate will be downloaded at the Customer’s computer upon the agreement by the Customer once he is ready to use the Web Application for his business.

11. SUPPORT
11.1 Silicon shall provide Email and Ticketing Systems support services during their normal business hours of09:00 to 17:00 Monday to Friday, such business hours to exclude public holidays. The support provided by Silicon shall relate only to the Application and ASP Infrastructure. Any problems which are related to Customer Computer Systems must be resolved by the Customer’s own support staff.
11.2 In addition to the standard support provided for in sub-Clause 11.1, Silicon shall also provide telephone, email and live online support services outside of their normal business hours of 09:00 to 17:00. Such additional support services shall be available at additional cost to the Customer at the rates.
11.3 When seeking support, the Customer shall use its best and reasonable endeavours to provide the fullest information possible to aid Silicon in diagnosing any faults in either the Application or the ASP Infrastructure.
11.4 Silicon shall aim to resolve all support problems within 48 Business Hours or as soon as possible thereafter where resolution in that time is not possible.
11.5 Whenever possible, Silicon shall provide a workaround solution to the Customer to enable the Customer’s continued use of the Application or to enable use that is as close to normal as is possible under the prevailing circumstances.

12. INTELLECTUAL PROPERTY
12.1 All the Intellectual Property Rights subsisting in the Application and the ASP Infrastructure, including any supporting software and documentation are the property of Silicon.
12.2 The Intellectual Property Rights subsisting in any supporting software of which Silicon is not the owner, may be the property of third parties.
12.3 The Customer shall not either during the term or after the expiry of this Agreement permit or cause to occur any infringement of any Intellectual Property Rights. Use by the Customer and its employees of the Application shall be only within the terms of this Agreement.
12.4 The Customer shall not, in the absence of Silicon’s written consent, reproduce, adapt, translate, reverse-engineer, or make available to any third party any of the Application, any part of the ASP Infrastructure, or any other material associated with this Agreement where such activity goes beyond the scope of actions permitted by the terms and conditions of this Agreement.
Where the Customer either suspects or is aware of any breach of Intellectual Property Rights, it shall be under a duty to inform Silicon of such breach immediately.

13. CUSTOMER DATA
13.1 All Intellectual Property Rights subsisting in Customer Data generated by the Application is and shall remain the property of the Customer.
13.2 Certain Customer Data may belong to third parties. In such cases, the Customer warrants that all such Customer Data is used with the consent of relevant third parties.

14. CONFIDENTIALITY
14.1 CONFIDENTIALITY
The Customer shall not disclose to any third party the business of Silicon, details regarding the Application, including, without limitation any information regarding the Source Code of the Application, or Silicon’s business (the “Confidential Information”),(ii) make copies of any Confidential Information or any content based on the concepts contained within the Confidential Information for personal use or for distribution unless requested to do so by Silicon, or (iii) use Confidential Information other than solely for the benefit of Silicon.

15. LIABILITY
15.1 Silicon shall not be liable to the Customer for any indirect or consequential loss the Customer may suffer even if such loss is reasonably foreseeable or if Silicon has been advised of the possibility of the Customer incurring it.
15.2 Notwithstanding any other provision in this Agreement, Silicon’s liability to the Customer for death or injury resulting from Silicon’s own negligence or that of their employees, agents or sub-contractors shall not be limited.

16. INDEMNITY
16.1 The Customer will fully indemnify Silicon against all costs, expenses, liabilities, losses, damages and judgments that Silicon may incur or be subject to as a result of any of the following:
16.1.1 The Customer’s misuse of the Application, ASP Infrastructure or any other element of the service provided;
16.1.2 The Customer’s breach of this Agreement; or
16.1.3 The Customer’s negligence or other act of default.
16.2 Silicon shall be under no obligation to indemnify the Customer against any costs, expenses, liabilities, losses, damages and judgments that the Customer may incur or be subject to arising out of any matter covered by this Agreement.

17. FORCE MAJEURE
17.1 Neither the Service Provider nor the Customer shall be liable for breaching this Agreement where that breach results from Force Majeure.
17.2 Force Majeure refers to any event that is beyond the reasonable control of the parties and includes, but is not limited to: power failure, internet service provider failure, industrial action, civil unrest, theft, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

18. TERMINATION
18.1 Silicon reserves the right to terminate this Agreement or to suspend the Application in the following circumstances:
18.1.1 If the Customer fails to pay Fees due under Clause 4 of this Agreement;
18.1.2 If the Customer is in breach of the terms of this Agreement;
18.1.3 If the Customer becomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
18.1.4 If the Customer is unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
18.1.5 If the Customer has a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
18.2 The Customer reserves the right to terminate this Agreement in the following circumstances:
18.2.1 If Silicon is in breach of the terms of this Agreement;
18.2.2 If Siliconbecomes the subject of a voluntary arrangement under Section 1 of the Insolvency Act 1986;
18.2.3 If Siliconis unable to pay its debts within the definition of Section 123 of the Insolvency Act 1986; or
18.2.4 If Siliconhas a receiver, manager, administrator or administrative receiver appointed over all or a substantial part of its undertakings, assets, or income; has passed a resolution for its winding up; or is the subject of a petition presented to a court for its winding up or for an administration order.
18.3 Within 20 Business Days of the termination of this Agreement in accordance with this Clause 19 or the expiry of this Agreement, the Customer shall uninstall or otherwise remove any means of access to the Application and ASP Infrastructure including, but not limited to, client software supplied by Silicon for that sole purpose. Immediately following taking such action, the Customer shall inform Silicon in writing that such action has been taken. Silicon shall have the right to dispatch a representative to the Customer’s premises for verification purposes.

19. NOTICES
19.1 All notices under this Agreement shall be in writing.
19.2 Notices shall be deemed to have been duly given:
19.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
19.2.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
19.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
19.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
19.3 In each case notices should be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

20. RELATIONSHIP OF PARTIES
Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between Silicon and the Customer.

21. ASSIGNMENT
Neither Party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld.

22. SEVERANCE
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.

23. ENTIRE AGREEMENT
23.1 This Agreement embodies and sets forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement. Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.
23.2 Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the Parties.

24. NO WAIVER
The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

25. NON-EXCLUSIVITY
The relationship between the Parties under this Agreement is and shall remain non-exclusive. Both parties are free to enter into similar relationships with other parties.

26. DISPUTE RESOLUTION (ARBITRATION)
26.1 It is agreed that where any dispute or difference relating to this Agreement arises between the Parties that matter shall be referred to the arbitration of a single arbitrator with appropriate qualifications and practical experience to resolve the particular dispute.
26.2 The arbitrator shall be agreed by the Parties or in the event of failure to agree shall be appointed by the President for the time being of the Law Society of England and Wales.
26.3 The arbitration shall take place in London and shall be in accordance with the Arbitration Act 1996 or any re-enactment or modification of that Act for the time being in force.
26.4 The Parties shall promptly furnish to the arbitrator all information reasonably requested by him relating to the particular dispute, imposing appropriate obligations of confidence.
26.5 The Parties shall require the arbitrator to use all reasonable endeavours to render his decision within 30 days following his receipt of the information requested or if this is not possible as soon thereafter as may reasonably be practicable. The Parties shall co-operate fully with the arbitrator to achieve this objective.
26.6 The Parties shall share the fees and expenses of the arbitrator equally. The decision of the arbitrator shall be final and binding upon both Parties.
26.7 The Parties agree to exclude any right of application or appeal to the courts of England and Wales concerning any question of law arising in the course of the arbitration.

27. LAW AND JURISDICTION
27.1 This Agreement shall be governed by the laws of England and Wales.
27.2 Any dispute between the Parties relating to this Agreement shall fall within the jurisdiction of the courts of England and Wales.