ANY REDISTRIBUTION OR RENTAL OF THE PRODUCT LICENSED HEREUNDER IS ABSOLUTELY
PROHIBITED
BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE ORTHOCAD 3D
MODELING BROWSER (THE "PRODUCT"), THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT
("LICENSEE") HEREBY CONSENTS TO BE BOUND BY AND BECOMES A PARTY TO THIS
AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE
BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND LICENSEE MUST NOT INSTALL
OR USE THE SOFTWARE. IF YOU CLICK THE ACCEPTANCE BUTTON BELOW, YOU HEREBY
REPRESENT THAT YOU ARE AUTHORIZED TO BIND THE PERSON OR ENTITY THAT WILL BE
USING THE PRODUCT TO THE TERMS OF THIS AGREEMENT.
1. PARTIES TO THIS LICENSE AGREEMENT. As used in this Agreement, "Cadent" or
"Licensor" shall mean Cadent Ltd., its subsidiaries, affiliates, employees,
officers and agents. As used in this Agreement "User" or "Licensee" shall mean
the dental practitioner or dental laboratory, their subsidiaries, affiliates,
employees, officers and agents, in each case that access or use the Product.
2. LICENSEE RESPONSIBLE FOR THE SECURITY OF PATIENT DATA. For any health
information or other patient data (together "Data") which Licensee transfers to
Licensor, Licensee hereby agrees to obtain the individual's permission to
transfer his or her Data prior to its transfer to Licensor. The User of the
Product accepts responsibility for maintaining the security of their access and
password and the User is responsible for maintaining the confidentiality of any
data accessed on this site. The User agrees that Licensor may provide the User's
password and other User information to any party who can correctly answer
certain security questions previously set by the User. Licensee hereby agrees to
comply with all applicable laws, including, without limitation laws regarding
the Data.
3. LICENSE GRANT. Subject to the terms and conditions hereof, Licensor grants
Licensee a limited, non-exclusive, non-sublicenseable, perpetual (subject to
Licensor's right to terminate this Agreement pursuant to Section 6 hereof) and
non-transferable license to Use, solely for its own internal business purposes,
the executable code version of the Product, provided, further, that any copy of
the Product must contain all of the original proprietary notices. For purposes
of this Agreement, "Use" of or to "Use" the Product is limited to the
installation, access and use thereof by Licensee solely for Licensee's own
regular internal business purposes to view digital models of Licensee's own
patients in the course of Licensee's regular dental practice only in conjunction
with Cadent's orthodontic-modeling services and otherwise consistent with the
terms and conditions of this Agreement. This license does not entitle Licensee
to receive from Cadent hard-copy documentation, technical support, telephone
assistance, or enhancements or updates to the Product. Licensee may not
sublicense or redistribute the Product or use it for service bureau purposes.
4. RESTRICTIONS. Except as otherwise expressly permitted in this Agreement,
Licensee may not (and may not permit any third party to) : (i) modify or create
any derivative works of the Product or documentation, including translation or
localization; (ii) decompile, disassemble, reverse engineer, or otherwise
attempt to derive the source code for the Product; (iii) redistribute, encumber,
sell, rent, lease, sublicense, or otherwise transfer any rights in or to the
Product or any portions thereof; (iv) remove or alter any trademark, logo,
copyright or other proprietary notices, legends, symbols or labels in the
Product; or (v) publish any results of benchmark tests run on the Product to a
third party without Cadent's prior written consent. Without limiting the
forgoing, Licensee may only use the Product in accordance with the terms and
conditions of any documentation or purchase order related to such Product and
supplied by Licensor.
5. FEES. The fees for the Product shall be as set forth in a separate purchase
order. between Licensor and Licensee.
6. TERMINATION. Without prejudice to any other rights, Licensor may terminate
this Agreement effective upon notice to Licensee if Licensee breaches any of its
terms and conditions as determined by Licensor in its sole good faith
discretion. In addition, for any reason or no reason, licensor may terminate
this license upon 30 days prior notice to licensee. Upon termination, all
licenses granted herein shall immediately terminate and Licensee shall destroy
all copies of the Product.
7. PROPRIETARY RIGHTS. As between Licensee and Licensor, all title, ownership
rights, and intellectual property rights in the Product and derivative works
thereof are and shall remain the exclusive property of Cadent and/or its
suppliers or licensors and Licensee shall have no rights or interests therein
other than the limited license expressly granted herein. Licensee acknowledges
such ownership and intellectual property rights and will not take any action to
jeopardize, limit or interfere in any manner with Cadent's or its suppliers'
ownership of or rights with respect to the Product or any aspects thereof. The
Product is protected by copyright and other intellectual property laws and by
international treaties. Title and related rights in the content accessed through
the Product is the property of the applicable content owner and is protected by
applicable law. The license granted under this Agreement gives Licensee no
rights to such content.
8. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED FREE OF CHARGE, AND,
THEREFORE, ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT
LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A
PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND
PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD THE PRODUCT PROVE
DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS SUPPLIERS OR
RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN ADDITION, THE
SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT HAVE INHERENT LIMITATIONS, AND
LICENSEE MUST DETERMINE THAT THE PRODUCT SUFFICIENTLY MEETS ITS REQUIREMENTS.
THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO
USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
THIS PRODUCT INCLUDES A DATABASE CONTAINING PARAMETER INFORMATION FOR
ORTHODONTIC APPLIANCES PRODUCED AND DISTRIBUTED BY VARIOUS MANUFACTURERS (THE
"LIBRARY"), AS IDENTIFIED THEREIN. THE DATA FOUND IN THE LIBRARY WAS EITHER
PROVIDED BY THE MANUFACTURER OF THE BRACKET OR GENERATED BY CADENT THROUGH
REVERSE ENGINEERING OF A COMMERCIALLY AVAILABLE PRODUCT, ALSO AS INDICATED IN
THE LIBRARY. CADENT HAS NO CONTROL OVER A MANUFACTURER'S DESIGN AND PRODUCTION,
AND CAUTIONS USERS THAT THE MANUFACTURERS MAY, WITH OR WITHOUT NOTICE, MODIFY
THEIR EXISTING PRODUCTS, DEVELOP, DESIGN OR RELEASE NEW PRODUCTS OR DISCONTINUE
PRODUCTS, AT ANY TIME. THEREFORE CADENT PROVIDES NO WARRANTY, EXPRESS OR
IMPLIED, THAT THE INFORMATION CONTAINED IN THE LIBRARY IS CURRENT OR ACCURATE,
AND CADENT SHALL HAVE NO LIABILITY WHATSOEVER ARISING OUT OF OR RELATING TO USE
OF THE LIBRARY. ALTHOUGH CADENT HAS TAKEN CARE TO MEASURE THE PARAMETER DATA FOR
THOSE PRODUCTS IT HAS REVERSE ENGINEERED, IT CANNOT GUARANTEE AND SHALL BEAR NO
RISK RELATED TO THE ACCURACY OF THE MEASUREMENTS. THE USER IS CAUTIONED AND
ADVISED TO CONTACT THE MANUFACTURER TO OBTAIN ACCURATE AND CURRENT PARAMETER
DATA AND TO VERIFY THAT THE PARAMETER DATA IN THE LIBRARY IS CORRECT.
CERTAIN APPLIANCE PRODUCTS IDENTIFIED HEREIN ARE IDENTIFIED ACCORDING TO THE
BRAND NAME AND MODEL NUMBER ASSIGNED TO THE PRODUCT BY THE MANUFACTURER OF THAT
PRODUCT. IN CERTAIN CASES, THE PRODUCT IDENTIFICATION INCLUDES A TRADEMARK (OR
MORE THAN ONE TRADEMARK) OF THE MANUFACTURER OF THAT PRODUCT.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF
OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS
OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL
OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF,
AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE)
UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER
ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE
FEES LICENSEE PAID FOR THIS LICENSE (IF ANY). CADENT IS NOT RESPONSIBLE FOR ANY
LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS
ACCESSED THROUGH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, CONTENT IN THE
LIBRARY) AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT OR THE USE OF THE
PRODUCT IN RELIANCE ON SUCH CONTENT.
10. HIGH RISK ACTIVITIES. The Product is not fault-tolerant and is not designed,
manufactured or intended for use or resale as on-line control equipment in
hazardous environments requiring fail-safe performance, such as in the operation
of nuclear facilities, aircraft navigation or communication systems, air traffic
control, direct life support machines, or weapons systems, in which the failure
of the Product could lead directly to death, personal injury, or severe physical
or environmental damage ("High Risk Activities"). Accordingly, Licensor and its
suppliers specifically disclaim, and Licensee acknowledges and accepts such
disclaimer, any express or implied warranty of fitness for High Risk Activities.
Licensee agrees that Licensor and its suppliers will not be liable for any
claims or damages arising from the use of the Product in such applications.
11. U.S. GOVERNMENT END USERS. The Product is a "commercial item," as that term
is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer
software" and "commercial computer software documentation," as such terms are
used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48
C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users
acquire the Product with only those rights set forth herein.
12. MAINTENANCE AND ACCESS. Licensee agrees that Cadent may perform periodically
any type of reasonable actions determined by Cadent in its discretion in order
to update and to maintain the Product on Licensee's system. Such actions may
include, among others, automatically assessing the version of the Product in use
by the Licensee and providing updates of the Product or any parts thereof to
Licensee. Licensee grants Cadent permission to access the Product on Licensee's
system for such purposes and to remotely ascertain the version and configuration
of the Product, web browser and operating system in use on Licensee's computer
system. Licensee will be promptly be notified of any such actions by Cadent.
13. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between
the parties concerning the subject matter hereof. (b) This Agreement may be
amended only by a writing signed by both parties. (c) Except to the extent
applicable law, if any, provides otherwise, this Agreement shall be governed by
the laws of the State of New Jersey. (d) Unless otherwise agreed in writing, all
disputes relating to this Agreement (including any dispute relating to
intellectual property rights) shall be subject to final and binding arbitration
in New Jersey, with the losing party paying all costs of arbitration. (e) This
Agreement shall not be governed by the United Nations Convention on Contracts
for the International Sale of Goods. (f) If any provision in this Agreement
should be held illegal or unenforceable by a court having jurisdiction, such
provision shall be modified to the extent necessary to render it enforceable
without losing its intent, or severed from this Agreement if no such
modification is possible, and other provisions of this Agreement shall remain in
full force and effect. (g) The controlling language of this Agreement is
English. If Licensee has received a translation into another language, it has
been provided for Licensee's convenience only. (h) A waiver by either party of
any term or condition of this Agreement or any breach thereof, in any one
instance, shall not waive such term or condition or any subsequent breach
thereof. (i) The provisions of this Agreement which require or contemplate
performance after the expiration or termination of this Agreement shall be
enforceable notwithstanding said expiration or termination. (j) Licensee may not
assign or otherwise transfer by operation of law or otherwise this Agreement or
any rights or obligations herein. (k) This Agreement shall be binding upon and
shall inure to the benefit of the parties, their successors and permitted
assigns. (l) Neither party shall be in default or be liable for any delay,
failure in performance (excepting the obligation to pay) or interruption of
service resulting directly or indirectly from any cause beyond its reasonable
control. (m) The relationship between Licensor and Licensee is that of
independent contractors and neither Licensee nor its agents shall have any
authority to bind Licensor in any way. (n) If any dispute arises under this
Agreement, the prevailing party shall be reimbursed by the other party for any
and all legal fees and costs associated therewith. (o) If any Cadent
professional services are being provided, then such professional services are
provided pursuant to the terms of a separate Professional Services Agreement
between Cadent and Licensee. The parties acknowledge that such services are
acquired independently of the Product licensed hereunder, and that provision of
such services is not essential to the functionality of such Product. (p) The
headings to the sections of this Agreement are used for convenience only and
shall have no substantive meaning. (q) Licensor may use Licensee's name in any
customer reference list or in any press release issued by Licensor regarding the
licensing of the Product and/or provide Licensee's name and the names of the
Product licensed by Licensee to third parties.
14. LICENSEE OUTSIDE THE U.S. If Licensee is located outside the U.S., then the
provisions of this Section shall apply. Licensee is responsible for complying
with any local laws in its jurisdiction which might impact its right to import,
export or use the Product, and Licensee represents that it has complied with any
regulations or registration procedures required by applicable law to make this
license enforceable.
15. EXPORT RESTRICTIONS. Licensee acknowledges and agrees to comply with all
export and re-export restrictions and regulations of the Department of Commerce
of the United States or other applicable United States agency or authority.
Without limiting the foregoing or any other provisions of this Agreement,
Licensee agrees not to download, transmit or transfer (or authorize anyone to
download, transmit or transfer) the Product or any portions thereof into (or to
a national resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria,
or any other country to which the United States has embargoed goods.