DENTAL CAREER ACADEMY, LLC & DIRECT DENTAL CAREER ACADEMY, LLC

TERMS AND CONDITIONS

 

THESE TERMS AND CONDITIONS CREATE A BINDING CONTRACT BETWEEN YOU, THE INDIVIDUAL OR ENTITY (“CUSTOMER”) AND DENTAL CAREER ACADEMY, LLC & DIRECT DENTAL CAREER ACADEMY, LLC (“DCA”, "DDCA") (THE “AGREEMENT”).  PLEASE READ THE ENTIRE AGREEMENT CAREFULLY.

1. Introduction. This Agreement governs Customer’s access and use of DCA & DDCA’s training modules designed to provide training for dental office personnel, including any new versions, updates, revisions, improvements and modifications of the same (“Training Modules”) via remote access through DCA & DDCA’s Systems (defined below)) (collectively, the “Services”).

2. Definitions. Capitalized terms used in this Agreement have the meaning set forth in this Section 2 or elsewhere in this Agreement.

a. “Access Credentials” means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

b. “Account” means the online account established with DCA & DDCA throughDCA & DDCA’s  Systems to access and use the Services.  

c. “Authorized User” means (i) if Customer is an individual, then that individual; or (i) if Customer is a corporation, governmental organization or other legal entity, then the officers, directors, members, employees, or contractors of that Customer.

d. “Customer Data” means any information or data or other content in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services.

e. “Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.

f. “DCA & DDCA Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by DCA, DDCA or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of DCA & DDCA or its designee.

g. “DCA, DDCA Materials” means the Training Modules, Documentation and DCA & DDCA Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by DCA, DDCA or any Subcontractor (defined below) in connection with the Services or otherwise comprise or relate to the Services, Training Modules or DCA & DDCA Systems.  For the avoidance of doubt, DCA & DDCA Materials do not include Customer Data.

h. “DCA & DDCA Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of DCA, DDCA or any Subcontractor.

i. “DCA & DDCA Systems” means the information technology infrastructure used by or on behalf of DCA & DDCA in providing the Services, including all computers, software, websites, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by DCA, DDCA or through the use of third-party services.

j. “Documentation” means any manuals, instructions or other documents or materials that DCA & DDCA provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or DCA & DDCA Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

k. “Effective Date” shall mean the earlier of the acceptance of this Agreement by Customer or the first access or use of the Services by Customer or any Authorized User of Customer, in DCA & DDCA’s sole discretion.

l. “Force Majeure Event” means any event or circumstances beyond a party’s reasonable control, including acts of God, flood, fire, earthquake or explosion, disease and pandemic, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of laws or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or shortages of adequate power or telecommunications or transportation.

m. “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to: (i) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any: (A) computer, software, firmware, hardware, system or network; or (B) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby; or (ii) prevent Customer or any Authorized User from accessing or using the Services or DCA & DDCA Systems as intended by this Agreement. Harmful Code does not include any DCA & DDCA Disabling Device.

n. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

o. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.

p. “Representatives” means, with respect to a party, that party’s and its affiliates’ officers, directors, members, employees, agents, consultants, independent contractors, service providers, sublicensees, subcontractors and legal advisors.

q. “Resultant Data” means information, data and other content that is derived by or through Customer’s or an Authorized User’s access or use of the Services.

r. “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services or Training Modules that are not proprietary to DCA or DDCA.

3. Services

a. Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, DCA & DDCA shall use commercially reasonable efforts to provide to Customer and its Authorized Users access to the Services and this Agreement in accordance with the Documentation and terms and conditions hereof, except for: (i) scheduled downtime or other reasonably required maintenance; (ii) Service downtime or degradation due to a Force Majeure Event; (iii) any other circumstances beyond DCA & DDCA’s reasonable control, including Customer’s or any Authorized User’s use of Third Party Materials or the acts or omissions of a Subcontractor or other Persons besidesDCA & DDCA, misuse of the Services, or use of the Services other than in compliance with the express terms of this Agreement and the Documentation; and (iv) any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Services as permitted by this Agreement.

b. DCA & DDCA Systems. DCA & DDCA has and will retain sole control over the operation, provision, maintenance and management of the Services and DCA & DDCA Materials, including the: (i) DCA & DDCA Systems; (ii) selection, deployment, modification and replacement of the Training Modules; and (iii) performance of Service maintenance, upgrades, corrections and repairs.

c. Customer Systems. Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and DCA & DDCA Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or DCA & DDCA; (ii) results obtained from any use of the Services or DCA & DDCA Materials; and (iii) conclusions, decisions or actions based on such use.

d. Revisions. DCA & DDCA may from time to time in its sole discretion make any changes to the Services and DCA & DDCA Materials that it deems necessary or useful to: (i) maintain or enhance (A) the quality or delivery of DCA & DDCA's services to its customers, (B) the competitive strength of or market for DCA’s services, or (C) the Services’ cost efficiency or performance; or (ii) to comply with applicable Law.

f. Subcontractors. DCA & DDCA may from time to time in its sole discretion engage third parties to perform or provide the Services (each, a “Subcontractor”).

g. Service Support. Provided Customer and all Authorized Users are in compliance with this Agreement, the Services include basic customer support services via email for issues arising as a direct result of DCA & DDCA Materials in accordance with the DCA & DDCA standard service support policies, whichDCA & DDCA may amend from time to time in its sole discretion.

h. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. DCA & DDCA HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.

4. Authorization, Limitations and Accounts.

a. Authorization. Subject to and conditioned on Customer’s payment of the Fees (defined below) and compliance and performance in accordance with all other terms and conditions of this Agreement, DCA & DDCA hereby authorizes Customer to access and use, solely in the United States and during the Term (defined below), the Services and such DCA & DDCA Materials as DCA & DDCA may supply or make available to Customer solely for the Permitted Use (defined below) by and through Authorized Users in accordance with the Documentation and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and non-transferable.

b. Account. To access and use the Services, Customer must first create an Account with unique Access Credentials utilizing DCA & DDCA Systems for each Authorized User. Customer shall establish separate Accounts, each with a unique set of Access Credentials, for each Authorized User.

c. Permitted Use. Authorized Users are permitted to use the Services for dental office training purposes solely for the benefit of Customer (“Permitted Use”). Any use other than the Permitted Use is prohibited.

d. Limitations. Customer shall not, and shall not permit any Authorized User or other Person to, access or use the Services or DCA & DDCA Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, any applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not and shall not permit any Authorized User or other Person to, except as this Agreement expressly permits: (i) copy, modify or create derivative works or improvements of the Services or DCA & DDCA Materials; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or DCA & DDCA Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (iii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or DCA & DDCA Materials, in whole or in part; (iv) bypass or breach any security device or protection used by the Services or DCA & DDCA Materials or access or use the Services or DCA & DDCA Materials other than by an Authorized User through the use of the Account and then valid Access Credentials; (v) input, upload, transmit or otherwise provide to or through the Services or DCA & DDCA Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; (vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, DCA & DDCA Systems or DCA & DDCA's provision of services to any Person, in whole or in part; (vii) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or DCA & DDCA Materials, including any copy thereof; (viii) access or use the Services or DCA & DDCA Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Person (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other DCA & DDCA customer), or that violates any applicable law; (ix) access or use the Services or DCA & DDCA Materials for purposes of competitive analysis of the Services or DCA & DDCA Materials, the development, provision or use of a competing service or product or any other purpose that is toDCA & DDCA's detriment or commercial disadvantage; (x) otherwise access or use the Services or DCA & DDCA Materials beyond the scope of the authorization granted under Section 4.a.

5. Customer Obligations.

a. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Documentation, all Customer Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as DCA & DDCA may reasonably request to enable DCA & DDCA to exercise its rights and perform its obligations under and in connection with this Agreement.

b. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 4.d or other provisions of this Agreement, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and DCA & DDCA Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) immediately notify DCA & DDCA of any such actual or threatened activity.

c. Non-Solicitation. During the Term and for three (3) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by DCA & DDCA or any Subcontractor. In the event of a violation of this Section 5.c, DCA & DDCA will be entitled to liquidated damages equal to the compensation paid by DCA & DDCA to the applicable employee or contractor during the prior twelve (12) months.

d. Effect of Customer Failure or Delay. DCA & DDCA is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).

e. Customer Security.  

i. Customer has and will retain sole responsibility for: (A) all Customer Data, including its content and use; (B) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (C) Customer Systems; (D) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (E) all access to and use of the Services and DCA & DDCA Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

ii. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (A) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services or DCA & DDCA Systems; and (B) control the content and use of Customer Data, including the uploading or other provision of Customer Data to DCA & DDCA or DCA & DDCA Systems.

6. Fees; Payment Terms.

a. Fees and Payment. The “Initial Fee” as set forth in the DCA & DDCA Materials shall be invoiced and due immediately upon the commencement of the Term. A “Monthly Fee” of at least ninety-nine dollars ($99.00) or as otherwise set forth in the DCA & DDCA Materials shall be due and charged to Customer’s credit card on file with DCA & DDCA (“Credit Card”) once a month during the Term. The Initial Fee and Monthly Fee are collectively referred to as the “Fees” herein. Customer shall pay all Fees when due. Customer shall make all payments hereunder in U.S. dollars and shall make payments via Credit Card or other method as DCA & DDCA may specify in writing or via the DCA & DDCA Materials from time to time. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, DCA & DDCA may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. Customer shall reimburse DCA & DDCA for all costs incurred by DCA & DDCA in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees. If Customer fails to pay any Fees when due, DCA & DDCA may suspend or terminate provision of the Services or Customer’s or its Authorized User’s Account(s) until all past due amounts and applicable interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension, and such suspension of Services shall not relieve Customer of its obligations to pay any fees set froth hereunder. All amounts payable to DCA & DDCA under this Agreement shall be paid by Customer to DCA & DDCA in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.

b. Fee Increases. DCA & DDCA may increase Fees at the end of each Term, or prior to any Renewal Term, by providing written notice to Customer or via the DCA & DDCA Materials prior to the increase in Fees.

c. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on DCA & DDCA's income.

7. Intellectual Property Rights; Reservation of Rights

a. Services and DCA & DDCA Materials. All right, title and interest in and to the Services and DCA & DDCA Materials, including all Intellectual Property Rights therein, are and will remain with DCA & DDCA and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or DCA & DDCA Materials (including Third-Party Materials) except as expressly set forth in Section 4.a or the applicable third-party license, in each case subject to Section 4.d and the other terms and conditions of this Agreement. All other rights in and to the Services and DCA & DDCA Materials (including Third-Party Materials) are expressly reserved by DCA & DDCA and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to DCA & DDCA an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

b. Customer Data As between Customer and DCA & DDCA, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto. Notwithstanding the foregoing, Customer hereby grants all such rights and permissions in or relating to Customer Data: (a) to DCA & DDCA, its Subcontractors and the DCA & DDCA Personnel as are necessary or useful to perform the Services; and (b) to DCA & DDCA as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.

8. Confidentiality.

a. Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 8.b, ”Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing, all DCA & DDCA Materials and the terms and conditions of this Agreement are the Confidential Information.

b. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

c. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for as long as it has possession of or access to Disclosing Party’s Confidential Information: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (ii) except as may be permitted herein not disclose or permit access to Confidential Information other than to its Representatives who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations hereunder, and are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth herein; (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and (iv) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 8.

d. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights herein; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.d, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s outside legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

9. Term; Termination; Suspension of Services; Early Termination Fees.

a. Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect on a month-to-month basis (the “Initial Term”).

b. Automatic Renewal. This Agreement will automatically renew for another one-month term unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal via the DCA & DDCA Systems, as indicated thereon, prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”). Notice of non-renewal sent to DCA & DDCA via any other method shall not be effective, including via facsimile or fax, U.S. mail, express mail, or electronic mail.

c. Termination. In addition to any other express termination right set forth elsewhere in this Agreement: (i)DCA & DDCA may immediately terminate this Agreement, effective on written notice or notice via DCA & DDCA Systems to Customer, if Customer: (A) fails to pay any amount when due under this Agreement; or (B) breaches any of its other obligations under this Agreement; and (ii) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

d. Effect of Expiration of Termination; Early Termination Fees. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (i) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate; (ii) DCA & DDCA shall immediately cease all use of any Customer Data or Customer’s Confidential Information and return or destroy such information upon Customer’s written request; (iii) Customer shall immediately cease all use of any Services or DCA & DDCA Materials and certify to DCA & DDCA in a signed written instrument that it has complied with the requirements of this Section 9.d; (iv) DCA & DDCA may disable all Customer and Authorized User access to the Services and DCA & DDCA Materials; and (v) Customer shall immediately owe and pay all amounts due under this Agreement for Services rendered prior to such expiration or termination. Customer shall not be owed any refunds of amounts or fees paid to DCA & DDCA under this Agreement (partial or otherwise), including when Customer cancels the Services during any month.

e. Suspension of Services. DCA & DDCA may, directly or indirectly, and by use of a DCA & DDCA Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or DCA & DDCA Materials, without incurring any resulting obligation or liability, if: (i) DCA & DDCA receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires DCA & DDCA to do so; (ii) DCA & DDCA is required to do so by applicable law; or (iii) DCA & DDCA believes, in its sole discretion, that: (A) Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; (B) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (C) this Agreement expires or is terminated. Suspension of the Services pursuant to this Section 9.e shall not relieve Customer of its obligations to pay all fees as set forth hereunder.

f. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 4.d, 6, 7, 8, 9, 10, 11 and 12.

10. Representations and Warranties; Limitation of Liability

a. Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

b. Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to DCA & DDCA that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by DCA & DDCA in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.

c. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 10, ALL SERVICES AND DCA MATERIALS ARE PROVIDED “AS IS” AND DCA & DDCA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND DCA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, DCA MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR DCA & DDCA MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, WILL PRODUCE ANY RESULTS (INCLUDING GETTING HIRED OR OBTAINING JOB POSITIONS RELATED TO THE TRAINING MODULES), OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

d. EXCLUSION OF DAMAGES. IN NO EVENT WILL DCA & DDCA, DCA & DDCA REPRESENTATIVES OR ANY OF THEIR LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER OR THE SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (ii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (iii) LOSS, DAMAGE OR LIABILITY ARISING FROM OR RELATED TO A CUSTOMER FAILURE; (iv) FAILURE TO OBTAIN OR MAINTAIN EMPLOYMENT OR EMPLOYEES; (v) DAMAGES THAT MAY BE CAUSED BY A USER WHILE EMPLOYED WITH OR BY A CUSTOMER; OR (v) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

e. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE, AGGREGATE LIABILITY OF DCA & DDCA, DCA & DDCA REPRESENTATIVES, AND THEIR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER OR THE SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY OR OTHERWISE, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO DCA & DDCA. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11. Indemnification.

a. DCA & DDCA  Indemnification. DCA & DDCA shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and permitted assigns (each, a ”Customer Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”) incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an Affiliate of Customer or a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that Customer’s use of the Services (excluding Customer Data and Third-Party Materials) in compliance with this Agreement (including the Documentation) infringes on a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (i) access to or use of the Services or DCA & DDCA Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Documentation or otherwise in writing by DCA & DDCA; (ii) modification of the Services or DCA & DDCA Materials other than: (A) by or on behalf of DCA & DDCA; or (B) withDCA & DDCA's written approval in accordance with DCA & DDCA’s written specification; (iii) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of DCA & DDCA; or (iv) act, omission or other matter described in Section 11.b, whether or not the same results in any Action against or Losses by any DCA & DDCA Indemnitee.

b. Customer Indemnification. Customer shall indemnify, defend and hold harmless DCA & DDCA and its Subcontractors, Representatives and affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “DCA & DDCA  Indemnitee”) from and against any and all Losses incurred by such DCA & DDCA Indemnitee in connection with any Action by a third party that arises out of or relates to any: (i) Customer Data, including any processing of Customer Data by or on behalf of DCA & DDCA in accordance with this Agreement; (ii) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including DCA & DDCA’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by DCA & DDCA; (iii) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (iv) acts or omissions by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement or the Services.

c. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant Section 11.a or 11.b, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably selected by Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11.c will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

d. Infringement Remedies. If any of the Services or DCA & DDCA Materials are, or in DCA & DDCA’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or DCA & DDCA Materials is enjoined or threatened to be enjoined, DCA & DDCA may, at its sole option and sole cost and expense: (i) obtain the right for Customer to continue to use the Services and DCA & DDCA Materials as materially contemplated by this Agreement; (ii) modify or replace the Services and DCA & DDCA Materials, in whole or in part, to seek to make the Services and DCA & DDCA Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and DCA & DDCA Materials, as applicable, under this Agreement; or (iii) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and DCA & DDCA Materials, and require Customer to immediately cease any use of the Services and DCA & DDCA Materials or any specified part or feature thereof, in which case Customer shall no longer be obligated to pay the Monthly Fee after such termination.

e. Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND DCA & DDCA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND DCA & DDCA MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.

12. Other Terms and Conditions.

a. Force Majeure. Except for Customer’s obligations to pay Fees hereunder, in no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any Force Majeure Event. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

b. Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

c. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

d. Cumulative Remedies. DCA & DDCA’s rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by DCA & DDCA shall not preclude or waive its right to use any or all other remedies. None of the terms and conditions of this Agreement or the rights and remedies provided hereunder limit any of DCA & DDCA’s other rights or remedies, whether at law, in equity or under this Agreement.

e. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

f. Amendment and Modification; Waiver No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

g. Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that DCA & DDCA may, without Customer’s consent, include Customer’s name and/or other indicia in its lists of DCA & DDCA’s current or former customers of DCA & DDCA in promotional and marketing materials.

h. Interpretation For purposes of this Agreement: (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (v) words denoting any gender include all genders. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

i. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

j. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 8 or, in the case of Customer, Sections 4.d or 5.b, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

k. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

l. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 12.l):

If To DCA: 

Dental Career Academy, LLC

ATTN: Owner

PO Box 5590

Eagle, CO 81631

If To DDCA: 

Direct Dental Career Academy, LLC

ATTN: Owner

PO Box 5590

Eagle, CO 81631

 

If To Customer:

Via the physical and email addresses and via the other contact information provided by Customer to DCA & DDCA via the DCA & DDCA Systems.

Notices sent in accordance with this Section 12.l will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the fifth (5th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

m. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

n. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without DCA & DDCA ’s prior written consent, which consent DCA & DDCA  shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which DCA & DDCA’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 12.n is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

o. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

DCA & DDCA PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPT AND COMPLY WITH THEM.  BY AUTHORIZING THE TRANSACTION, INCLUDING CHECKING THE BOX INDICATING YOU HAVE READ AND AGREE TO THIS AGREEMENT, AND CLICKING THE BUTTON TO COMPLETE THE TRANSACTION, OR AGREEING TO ANY OTHER MEANS PROVIDED FOR ACCEPTANCE, CUSTOMER (a) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (b) REPRESENT AND WARRANT THAT: (i) IF YOU ARE AN INDIVIDUAL, YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; OR (ii) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS.  IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DCA & DDCA  WILL NOT AND DOES NOT PROVIDE THE SERVICES TO CUSTOMER AND YOU MUST NOT ACCESS OR USE THE DCA & DDCA  MATERIALS.