Last Updated: September 1, 2026

SOFTWARE-AS-A-SERVICE AGREEMENT

This Software-as-a-Service Agreement (“Agreement”) is made and entered into by and between PDDS Buyer, LLC, a Delaware limited liability company (“Planet DDS”), and the customer identified on the applicable Order (“Customer” and each of Planet DDS and Customer, individually a “Party” or collectively, the “Parties”) as of the date of the applicable Order (as defined below) that incorporates this Agreement (the “Effective Date”). For purposes of this Agreement, “Planet DDS Party” means any affiliate of Planet DDS that may provide products or services hereunder or in connection with this Agreement. In consideration of the mutual promises and covenants in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows.

By signing and/or submitting an Order that incorporates this Agreement, Customer hereby accepts the terms of this Agreement. Any individual signing or submitting an Order on behalf of a Customer that is a company or other legal entity represents that he or she has the authority to bind Customer to this Agreement. If Customer does not agree to the terms of this Agreement, Customer is not permitted to use the Services. Any usage of the Services indicates acceptance of this Agreement in its entirety.

1. ACCESS TO SERVICES.

1.1 Services; License.

Subject to the terms of this Agreement, Planet DDS grants to Customer a limited (during the Term), non-exclusive, non-transferable right and license (“License”) to access and use the software services (the “Software Services”) set forth in an applicable order form or other agreement entered into by and between Planet DDS and Customer (each, an “Order”) for its internal business purposes. The Software Services may include Planet DDS’s online dental practice management, imaging, or patient communication software, and/or any other software services or other offerings made generally available by Planet DDS to its customers (including, for each, any subsequent updates, modifications, enhancements, or new versions).

1.2 Ancillary Services.

Subject to the terms of this Agreement, Planet DDS shall provide certain ancillary services, including, as applicable to the Software Services purchased by Customer: (i) standard customer support services as set forth on the attached Exhibit B – Support; (ii) any data conversion and implementation services set forth on an Order and further described in the Professional Services Scope of Work available at https://www.planetdds.com/terms/ (together with any other applicable addenda or other product or service specific terms, as the same may be updated from time to time, the “Product-Specific Terms”); and/or (iii) such other services as may be agreed upon by the Parties (“Ancillary Services” and, together with the Software Services, the “Services”). Customer may opt to purchase enhanced Ancillary Services or may incur additional charges in accordance with the rates set forth in the applicable Order, Product-Specific Terms and/or Documentation.

1.3 Updates.

Planet DDS may update, modify, or improve the Services and/or Documentation at any time and at Planet DDS’s sole discretion. Planet DDS may sometimes add or remove features, increase or decrease usage limits, offer new Services, or stop offering certain Services; Planet DDS does not guarantee that any particular feature or functionality will always be available through the Services. Customer agrees that its purchase of a License to use the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Planet DDS regarding planned functionality or features.

1.4 Beta Services.

Planet DDS may, in its sole discretion, make available to Customer from time to time services or functionality that is not generally made available to Planet DDS customers, is designated as beta, pilot, preview, or similar designation, and/or is made available at no charge (collectively, “Beta Services”). Unless otherwise set forth in an Order, (a) Planet DDS reserves the right to discontinue or modify the provision of any Beta Services at any time with or without notice, and (b) Section 13 (Availability), Exhibit B (Support), the first sentence of Section 4, and any warranties or service level commitments contained in any Product-Specific Terms do not apply to Beta Services.

1.5 Additional Terms.

Additional terms governing Customer’s use of the Services may be set forth in an Order and in the Product-Specific Terms applicable to such Services. Customer understands and agrees that it may only access and use the Services in a manner pursuant to Planet DDS’s published user guides, manuals, instructions, and/or specifications provided or made available to Customer (the “Documentation“). Customer additionally acknowledges the Planet DDS Privacy Policy (published at https://www.planetdds.com/privacy-policy/), the terms of which are incorporated by reference as if fully set forth herein.

1.6 Third-Party Applications and Integrations.

The Software Services are compatible with and support a variety of third-party applications and integrations. A list of Planet DDS approved third-party vendors, applications and integrations is available upon request. Notwithstanding the foregoing, Planet DDS disclaims any and all warranties, whether express or implied, with respect to any third-party applications or integrations not provided or made available by Planet DDS as part of the Software Services, Customer’s use of which is governed by the agreement between Customer and the third-party vendor, subject to the use restrictions set forth herein or in an agreement between Planet DDS and the third-party vendor. Planet DDS reserves the right to reject or terminate access to or by any third-party application or integration; provided, that Planet DDS shall use commercially reasonable efforts to provide reasonable advance notice to Customer of any such termination that, to the knowledge of Planet DDS, would materially impact Customer’s operations.

2. CUSTOMER OBLIGATIONS.

2.1.  Use Restrictions.

Customer acknowledges and agrees that, in the use of the Services, it will not:

  1. use the Services or permit the Services to be used to perform any file storage or other services for any third party;
  2. upload to, or otherwise transmit or communicate to or in connection with the use of the Services any data, material or communications that (i) infringe the intellectual property rights or other proprietary rights of any third party, (ii) are unlawful, obscene, harassing, abusive, threatening, vulgar, or otherwise objectionable, or (iii) contain software viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs or cancelbots;
  3. use or permit the use of any software, hardware, application or process that (i) interferes with the Services, (ii) interferes with or disrupts servers, systems or networks connected to the Services, or violates the regulations, policies or procedures of such servers, systems or networks, (iii) accesses or attempts to access another customer’s accounts, servers, systems or networks without authorization, or (iv) interferes with another Planet DDS customer’s use and enjoyment of the Services;
  4. tamper with, breach, or attempt to breach the security of the Services;
  5. modify, port, adapt, translate or create any derivative work based upon the Services or the Documentation;
  6. reverse engineer, analyze, decompile, disassemble, or otherwise derive or attempt to derive the source code of the Services;
  7. copy, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, use, offer on a service bureau basis, deliver or otherwise transfer the Services or Documentation, in whole or in part;
  8. remove or alter any proprietary notices, branding, disclaimers, or other legends contained in or displayed by the Services or Documentation;
  9. ship, transmit, transfer, or export the Services into any country not expressly approved by Planet DDS or use the Services in any manner prohibited by United States export laws, restrictions, or regulations;
  10. access or use the Services, or any data or information obtained through the Services, to develop, improve, train, or benchmark any product or service that is competitive with any of the Services, or provide access to the Services to any third party for such purpose; and
  11. access the Services by any method that violates the protocols of Exhibit A to this Agreement (including as such may be supplemented or otherwise modified in writing by Planet DDS).

2.2. Notwithstanding the foregoing, Customer may make copies of the Documentation for its own internal use in connection with its use of the Services. Customer may print out, or otherwise make, printed copies of the reports, numeric results, and other information or materials generated from Customer’s access and use of the Services for internal business purposes only.

2.3. Customer shall, in its use of the Services, abide by and comply with all applicable local, state, national and international laws and regulations (“Applicable Laws”), including, for the avoidance of doubt, the US Health Insurance Portability and Accountability Act of 1996, as amended, and all current rules and regulations relating thereto, and the TCPA and CAN-SPAM, and all relevant implementing rules, orders, and regulations of the Federal Trade Commission and Federal Communications Commission. Customer agrees and acknowledges that it, not Planet DDS, is responsible for any applicable vertical or industry-specific regulation compliance. The Services are intended for use solely in connection with the provision of dental and/or orthodontic care and the management of dental and/or orthodontic practices; Customer acknowledges that the Services are not suitable for, and agrees not to use the Services for, processing, storing, or maintaining other sensitive information, including without limitation, medical information related to gender affirming care, abortion, abortion-related services, or contraception. The Parties agree that no part of this Agreement shall be construed to induce or encourage the referral of patients or the purchase of health care services or supplies payable by federal healthcare programs, and Customer represents that its use of the Services is not subject to payment or reimbursement by such programs. In addition, Customer is solely responsible for: (a) collecting and maintaining its subscriber lists and other customer data in accordance with Applicable Laws; (b) providing notice and obtaining consent from any customer, prospective customer, or any other individual who interacts with Customer, its affiliates, or agents in connection with the Service as required under Applicable Laws for its use of the Services, including sending text messages; and (c) ensuring that all marketing and promotional activities that it conducts through the Services comply with Applicable Laws, including the content of its messages and campaigns. To the extent Planet DDS provides advice, guidance, templates, or suggestions via the Services, Ancillary Services, or otherwise, the foregoing are provided solely for convenience and Planet DDS does not assume any responsibility for Customer’s obligations under this Section, and Customer remains solely responsible for its own compliance. Customer should confer with its own independent legal counsel to determine whether marketing activities and content are sufficient for its purposes and meet its obligations under Applicable Laws.

3. OWNERSHIP.

As between Planet DDS and Customer, Customer agrees that the Services, as well as all related technology, software code, services, trademarks, service marks, logos, and all content displayed in the Services, as well as all of the Documentation (collectively, the “Planet DDS Materials”), constitute the intellectual property of and are owned by Planet DDS. As between Planet DDS and Customer, Customer agrees that Planet DDS retains title to and ownership of all right, title, and interest in the Planet DDS Materials, including all intellectual property and other proprietary rights therein (subject to the applicable limited licenses expressly granted by Planet DDS to Customer under this Agreement). If Customer submits any feedback or otherwise requests, suggests or recommends any changes to the Planet DDS Materials, including, without limitation, new features or functionality relating thereto, Customer hereby assigns to Planet DDS, and Planet DDS is free to use, without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in such feedback with respect to the Planet DDS Materials, for any purpose whatsoever; provided, for the avoidance of doubt, that Planet DDS is not required to implement any requested changes or otherwise use any such feedback. All rights not expressly granted herein are reserved by Planet DDS.

4. WARRANTIES; DISCLAIMERS.

Planet DDS represents and warrants that: (a) the Services will perform materially in accordance with the applicable Documentation; and (b) Planet DDS will perform all Ancillary Services in a professional and workmanlike manner consistent with generally recognized industry standards. Customer’s sole and exclusive remedy for the breach of the limited warranties provided herein shall be to request that Planet DDS correct the errors causing such non-performance in connection with Planet DDS’s standard support procedures. Planet DDS does not warrant that the Services will meet Customer’s requirements, that the Services will operate in combinations which Customer may select for use, that the use of the Services will be uninterrupted or error-free or that all errors with the Services will be corrected. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, CUSTOMER UNDERSTANDS THAT THE PLANET DDS MATERIALS AND ANY OTHER SERVICES ARE BEING PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. PLANET DDS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

5. LIMITATIONS ON LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TOTAL AND ENTIRE LIABILITY OF PLANET DDS AND THE PLANET DDS PARTIES IN THE AGGREGATE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF THE SERVICES WILL BE LIMITED TO THE AMOUNT OF FEES RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT IN THE MOST RECENT TWELVE (12) MONTH PERIOD. PLANET DDS AND THE PLANET DDS PARTIES SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER OR NOT PLANET DDS, THE PLANET DDS PARTIES AND/OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE). PLANET DDS AND THE PLANET DDS PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM ANY ALTERATION, DESTRUCTION OR LOSS OF ANY DATA OR INFORMATION INPUT, GENERATED OR OBTAINED FROM ACCESS AND/OR USE OF THE SERVICES, INCLUDING ANY REPORTS OR NUMERIC RESULTS, WHETHER OR NOT PLANET DDS AND THE PLANET DDS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF DAMAGES AND LIABILITIES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PLANET DDS AND CUSTOMER, AND THE PRICING FOR THE LICENSE REFLECTS SUCH LIMITATIONS.

6. REGISTERED AND LICENSED USERS.

In order for Customer to access and use the Services, Customer shall register an account with Planet DDS, provide Planet DDS with an email address of an individual who will manage Customer’s use of the Services (the “Administrator”), and complete the online signup process (to include providing valid payment information). The Administrator will have the authority to issue unique User IDs to additional Administrators or other authorized employees and agents of Customer (collectively, “Licensed Users”), subject to Exhibit A hereto. Where an Order provides for a specific number of user or seat licenses, this represents the maximum number of concurrent successful logins under such User IDs (each, a “Session”) authorized by the License granted hereunder. Should a Licensed User attempt to login to create a Session in excess of such number, Planet DDS may reject such login. For the avoidance of doubt, a single Licensed User may have multiple concurrent Sessions by, among other things, being logged-in to the Software Services on multiple devices simultaneously or logged into multiple concurrent sessions on the same device; each such concurrent login shall constitute a separate Session for purposes of determining the number of Sessions being utilized by Customer. The Services shall only be accessed by Licensed Users. Licensed Users shall be subject to all applicable terms and restrictions governing Customer’s access to and use of the Services (including, without limitation compliance with the Documentation and the use restrictions set forth in Section 2), and Customer is responsible and wholly liable for all acts or omissions committed by any Licensed Users. In the event Customer obtains a User ID and password for any Licensed User that is a contractor, agent or other non-employee, Customer shall additionally be responsible for ensuring that such persons have executed a HIPAA-compliant Business Associate Agreement governing their access to Customer Data. Planet DDS reserves the right to terminate or disable any User ID which Planet DDS reasonably believes is being used by any person in violation of this Agreement.

7. CUSTOMER DATA.

7.1. As between Customer and Planet DDS, Customer owns and will remain the sole and exclusive owner of all information and data it (or a Licensed User) inputs into the Services, including any protected health information subject to the BAA (“Customer Data”). Customer hereby grants to Planet DDS (and its service providers) a limited, non-exclusive, worldwide license to access and use Customer Data in order to provide the Services and as otherwise expressly permitted under this Agreement. Planet DDS will host and process Customer Data in accordance with Section 7.2. In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy shall be for Planet DDS to use commercially reasonable efforts to replace or restore the lost or damaged data from the latest backup of such Customer Data which Planet DDS has maintained in accordance with its standard archival procedures.

7.2. Planet DDS will host Customer Data in secure, U.S. based facilities. Planet DDS shall: (1) maintain adequate physical, electronic, and administrative security, at least to the level of industry standards; and (2) develop, implement and maintain comprehensive security policies and procedures (“Security Program”) with administrative, technical and physical safeguards to protect Customer Data against any unauthorized disclosure, access, or use and any anticipated or reasonably foreseeable threats or hazards to the security or integrity of such Customer Data. The Security Program shall be audited on an annual basis, and Planet DDS will make available to Customer a current SOC2 Type 2 attestation or similar audit report with respect to the Security Program. Additionally, each Party agrees to comply with and be bound by the Business Associate Agreement entered into in connection with this Agreement (the “BAA”), the terms of which are incorporated herein by reference.

7.3. In the course of providing the Services, Planet DDS may collect or generate data relating to the access to and use of the Services, including system logs, usage statistics, performance metrics, configuration data, and similar technical and operational data (“Usage Data“). Usage Data does not include Customer Data. Planet DDS may use Usage Data for any lawful business purpose, including to operate, maintain, monitor, and improve the Services, and to develop new products and features. In addition, Planet DDS may compile and distribute statistical analyses, benchmarking and reports utilizing Aggregated Data in accordance with applicable law (including, but not limited to the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, and any regulations issued pursuant thereto). For purposes of this Agreement, “Aggregated Data” means data and information derived from Usage Data, Customer Data, and/or the data of other Planet DDS customers, in an aggregated, de-identified form that does not contain or reveal personally identifiable information of Customer or any of Customer’s customers and does not reveal any information that would allow for the identification of Customer and/or Customer’s customers. As between Planet DDS and Customer, Planet DDS owns all right, title, and interest in and to Aggregated Data and Usage Data.

7.4. Nothing in this Section limits Customer’s responsibility for (i) maintaining the confidentiality of its credentials, passwords and encryption keys associated with its and its Licensed Users’ accounts, (ii) properly configuring and using the Services as required by Customer and taking its own steps to maintain appropriate security, protection and backup of Customer Data, (iii) all activities that occur with respect to its accounts regardless of whether the activities are undertaken by Customer, its Licensed Users, its employees or a third party (including its contractors or agents), (iv) Customer’s access and use of the Services in compliance with this Agreement and the applicable Documentation, (v) all Customer Data, and (vi) ensuring that the storage of Customer Data on the Services system is compliant with applicable privacy law requirements, including obtaining any necessary patient consents or authorizations. Planet DDS is not responsible for any alteration, compromise, corruption, or loss of Customer Data that arises from any access to, sharing or use of Customer’s accounts, credentials, passwords or encryption keys.

8. CONFIDENTIALITY.

8.1 Confidential Information.

Each Party acknowledges that, in connection with this Agreement, it may receive or have access to information of the other Party that is confidential and proprietary in nature, including technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and other information and materials (“Confidential Information“). Confidential Information shall not include information that is shown by competent evidence: (i) is in or enters the public domain without breach of this Agreement; (ii) was possessed by the receiving Party prior to first receiving it from the disclosing Party; (iii) was developed by the receiving Party independently and without use of or reference to the Confidential Information; or (iv) was received by the receiving Party from a third party without restriction on disclosure and without breach of a nondisclosure obligation. For the avoidance of doubt, (a) the Planet DDS Materials, the terms and conditions of this Agreement (including any Order), and, to the extent not publicly available, Planet DDS’s pricing shall be deemed Confidential Information of Planet DDS, and (b) Customer Data is not Confidential Information for purposes of this Section 8 and is instead governed by Section 7 and the BAA.

8.2 Protection of Confidential Information.

Each Party agrees to not, directly or indirectly, without the disclosing Party’s prior written consent, use the Confidential Information of the other Party for any purpose other than as expressly permitted under this Agreement; divulge, discuss, provide, transmit, copy, make available or otherwise communicate such Confidential Information to a third party; or permit any third party to use such Confidential Information. Each Party shall protect the other Party’s Confidential Information using the same degree of care it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care. Notwithstanding the foregoing, the receiving Party shall be permitted to disclose Confidential Information if such disclosure is required by law, provided that the receiving Party shall (i) give prompt notice of such requirement to the disclosing Party so that the disclosing Party will have the opportunity to seek a protective order or other appropriate remedy; and (ii) cooperate in the disclosing Party’s attempts to obtain confidential treatment of such Confidential Information.

9. TRADE NAMES AND TRADEMARKS.

Each Party hereby agrees that it shall not use or permit any third party to use, at any time, the other Party’s trademarks, trade names, or logos without written permission of the other Party; provided, that, unless Customer expressly instructs Planet DDS otherwise in writing, Planet DDS may use Customer’s trademarks, trade names, and logos in a nominative sense to identify Customer as a Planet DDS customer in its marketing materials and/or public customer lists.

10. NON-SOLICITATION OF EMPLOYEES.

Customer acknowledges that Planet DDS has extended significant time and energy recruiting, training, and retaining its employees. Customer agrees to not, directly or indirectly, during the term of this Agreement and for a period of twelve (12) consecutive months immediately following the termination of this Agreement by either Party for any reason, solicit for employment any employees of Planet DDS or any person who had been employed by Planet DDS during the then-prior three (3) month period, or otherwise interfere with the employment relationship between Planet DDS and any of its employees. This Section 10 does not preclude Customer from hiring any such employee of Planet DDS who responds to a general solicitation of employment through an advertisement not targeted specifically at Planet DDS or its employees.

11. INJUNCTIVE RELIEF.

Each Party acknowledges that a violation of Sections 1, 2, 3, 7, 8, 9, or 10  of this Agreement would cause irreparable harm to the other Party for which no adequate remedy at law exists, and each Party therefore agrees that, in addition to any other remedies available, the aggrieved Party shall be entitled to seek injunctive relief to enforce the terms of Sections 1, 2, 3, 7, 8, 9, or 10. The prevailing Party shall be entitled to recover all cost and expenses, including reasonable attorney’s fees incurred because of any such legal action.

12. HARDWARE AND SERVICE REQUIREMENTS.

Customer is solely responsible for acquiring, servicing, maintaining, and updating adequate equipment, computers, software, communications services (such as internet connectivity charges) and all other technology and services not owned or operated by or on behalf of Planet DDS, that enable Customer to access and use the Services, and for all expenses relating thereto (plus any applicable taxes). Customer agrees to access and use the Services in accordance with any and all operating instructions or procedures that may be issued by Planet DDS and amended by Planet DDS from time to time.

13. AVAILABILITY.

Customer acknowledges that functionality of the Services may at times be unavailable and outages may occur. Planet DDS will use commercially reasonable efforts to make the Services available to Customer twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (typically during weekend off-hours) and (ii) unplanned downtime beyond Planet DDS’s reasonable control. Notwithstanding the foregoing, Planet DDS reserves the right, in its sole discretion, to make unscheduled updates or upgrades to the Services.

14. INDEMNITY.

14.1 Indemnification by Planet DDS.

  1. Except as provided in this Section, Planet DDS will defend and indemnify Customer from and against any damages, liabilities, costs and expenses (including reasonable attorney’s fees) (“Losses”), arising out of any claim that the Services infringe a valid United States patent or copyright, or misappropriates a trade secret, of a third party.
  2. If any part of the Services used by Customer becomes, or in Planet DDS’s opinion is likely to become, the subject of any injunction preventing its use as contemplated herein, Planet DDS will at its option: (i) procure for Customer the right to continue using the Services; (ii) replace or modify the Services, so that it becomes non-infringing without substantially compromising its principal functions; or, if (i) and (ii) are not commercially reasonable, then (iii) terminate Customer’s license to allegedly infringing part(s) of the Services and provide Customer with a refund on a pro rata basis of any monies prepaid by Customer for the infringing part(s) of the Services.
  3. Planet DDS will have no liability or obligation to Customer hereunder with respect to any claim for United States patent or copyright infringement or trade secret misappropriation that is based upon: (i) use of the Services in an application or environment or on a platform or with devices for which the Services were not designed or contemplated; (ii) modifications, alterations, combinations or enhancements of the Services not created by Planet DDS; or (iii) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Planet DDS. This Section 14 states the entire liability of Planet DDS with respect to infringement of any intellectual property rights by the Services or any part thereof or by its use or operation.

14.2 Indemnification by Customer.

  1. Except as provided in this Section, Customer shall indemnify, defend, and hold harmless Planet DDS, its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns from and against any and all Losses arising out of any claim that any Customer Data infringes the rights of, or has caused harm to, a third party or Customer’s failure to obtain any necessary consents around the use and transmission of Customer Data.
  2. Customer will have no liability or obligation to Planet DDS hereunder with respect to any claim with respect to Customer Data that is based upon: (i) any use by Planet DDS or its employees or contractors of Customer Data in violation of this Agreement; (ii) any modifications, alterations, combinations or enhancements of Customer Data not created by or on behalf of (A) Customer or (B) Planet DDS as permitted under this Agreement in connection with its provision of the Services; or (iii) failure to timely implement the removal or amendment of Customer Data upon request by Customer.

14.3 Indemnification Procedure.

  1. A Party seeking indemnification (“Indemnitee”) shall promptly notify the other Party (“Indemnitor”) in writing of any claim or proceeding (“Action”) for which indemnification is sought pursuant to this Section 14 and shall cooperate with Indemnitor at Indemnitor’s sole cost and expense.
  2. Indemnitor shall, at its own sole cost and expense, promptly assume control of the defense employing counsel reasonably acceptable to Indemnitee; provided, however, that Indemnitor shall not settle any Action in any manner that adversely affects the rights of any Indemnitee without Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed.
  3. Failure to perform any obligation under this Section will not relieve either Party of its obligations except to the extent that such Party can demonstrate that it has been materially prejudiced as a result thereof.

15. U.S. GOVERNMENT CUSTOMERS.

The Services and Documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

16. LICENSE FEE AND TERM.

16.1. In exchange for Customer’s right to use the Services, Customer shall pay Planet DDS licensing and other fees set forth in the applicable Order and, if applicable, the Variable Fee Schedule published at https://www.planetdds.com/planet-dds-variable-fee-schedule/. Customer shall pay all undisputed amounts due to Planet DDS within thirty (30) days of receipt of the applicable invoice. Payment shall be paid monthly in US dollars via credit card or automated clearing house, or as mutually agreed by the Parties at time-of-service activation. Any undisputed amounts not paid when due will accrue interest at the rate equal to the lesser of one and one half percent (1.5%) per month and the maximum amount permitted by law. Invoices submitted by Planet DDS to Customer are presumed to be accurate and fully payable on the terms contained therein. If Customer objects to any portion of the invoice, Customer shall notify Planet DDS in writing within sixty (60) days after the closing date on the first invoice in which the issue or error appeared. Customer’s failure to object in writing within sixty (60) days shall operate as a waiver of any and all objections that Customer may have to such issue. Customer shall be responsible for the payment of all applicable sales, use or other consumer taxes, unless a valid exemption certificate is provided.

16.2. This Agreement shall remain in effect for so long as Services are being provided pursuant to any applicable Order. Unless otherwise specified in the applicable Order, the License to the applicable Services set forth in an Order shall remain in effect for an initial term commencing on the Effective Date (or, with respect to any Services added after the Effective Date, the date the applicable Order is executed) and ending on the first anniversary of the initial Billing Start Date (as defined below) (the “Initial Term”). Thereafter, unless otherwise set forth on the applicable Order, the Services will automatically renew for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either Party notifies the other of non-renewal at least thirty (30) days prior to the expiration of the then-current Term. Orders for additional Services and/or Customer locations that are entered into during the Term will be coterminous with all other Services. Upon the expiration of the Initial Term and/or any Renewal Term, Planet DDS may, upon written notice to Customer, make reasonable adjustments to the pricing of the Services effective for the upcoming Renewal Term(s). Any adjustments to pricing permitted under this Section 16 shall apply concurrently to all Customer locations and affected Services.

16.3. Unless otherwise specified in the applicable Order, Planet DDS shall invoice Customer for fees associated with implementation, training, conversion, and other professional Services upon the commencement of such Services. Fees for subscription-based Services shall begin to accrue on the “Billing Start Date” determined (a) as set forth on the applicable Order or (b) if the applicable Order does not specify a billing start date, based on the earliest to occur of: (i) the date of first installation of on-premises software (if applicable) or other use of the Services; or (ii) sixty (60) days from the date this Agreement is executed; provided, that if this date occurs (x) between the 1st and 15th day of a month, the Billing Start Date shall be the 1st of that month and (y) between the 16th and final day of a month, the Billing Start Date shall be the 1st of the following month.

16.4. Certain Services may be subject to usage allowances, volume thresholds, or similar limits as specified in the applicable Order, Product-Specific Terms, or Documentation (each, a “Usage Allowance“). If Customer’s use of any Service exceeds the applicable Usage Allowance during a billing period, Planet DDS may charge Customer overage fees for such excess usage at the rates set forth in the applicable Order, the Variable Fee Schedule, or, if no rate is specified, at Planet DDS’s then-current standard rates for such usage. For Services that are not subject to a specific Usage Allowance as of the Effective Date, Planet DDS may establish a reasonable Usage Allowance by providing Customer at least thirty (30) days’ prior written notice, after which overage fees shall apply to usage in excess of such Usage Allowance. Planet DDS will use commercially reasonable efforts to make usage information available to Customer through the Services or upon reasonable request so that Customer may monitor its usage relative to applicable Usage Allowances.

17. TERMINATION.

17.1 Termination.

Either Party may terminate this Agreement upon notice if the other Party breaches a material term of this Agreement and fails to remedy that breach within thirty (30) days after written notice from the terminating Party; provided, that Planet DDS may terminate this Agreement upon five (5) business days’ written notice if Customer fails to pay any undisputed amounts when due under this Agreement. In addition, Customer may terminate this Agreement or any individual Order for convenience upon at least sixty (60) days’ prior written notice to Planet DDS. Notwithstanding the foregoing, Planet DDS reserves the right to immediately suspend or disable any Licensed User account or other access to the Services that Planet DDS reasonably determines poses a threat to the security, integrity, or performance of the Services or Planet DDS’s systems, without liability to Customer.

17.2 Effect of Termination.

Upon termination of this Agreement, all rights, including the license granted to Customer under this Agreement will cease and Customer’s access to the Services may be disabled.

(a) Data Export. It shall be Customer’s sole responsibility to extract a copy of Customer Data from Planet DDS’ data repositories prior to termination of this Agreement. Customer may also request, at any time prior to or within ten (10) business days after termination of this Agreement, that Planet DDS transmit all Customer Data to a secure site from which Customer shall have access to such Customer Data until thirty (30) days after termination of this Agreement. Notwithstanding the foregoing, (i) Customer may be required to pay a processing fee of $995 per extract/download in connection with the export of Customer’s XVWeb server patient and imaging data via a secure download link, (ii) if, as part of the implementation process or otherwise during the Initial Term, Customer provides data for conversion by Planet DDS into a format suitable for use with XVWeb, Customer will not be entitled to an export of such converted Customer Data prior to the expiration of the Initial Term (i.e., Customer will retain the unconverted data in its original format and Planet DDS will only provide an export of new Customer Data captured during the Initial Term), and (iii) any Ancillary Services requested by Customer in connection with the export of Customer Data (e.g., multiple exports or converting, combining, or splitting Customer Data) may be provided in Planet DDS’s discretion and subject to additional fees for such Ancillary Services at Planet DDS’s then-current rates. Additional terms may apply as set forth in the applicable Order or Product-Specific Terms. Planet DDS may retain Customer Data (including in its backups, archives, and disaster recovery systems) to comply with applicable law or internal business policies and procedures until such data are deleted in the ordinary course.

(b) Final Payment. All outstanding fees and other amounts owed by Customer under this Agreement as of the date of termination shall become immediately due and payable upon termination of this Agreement. Further, if Customer terminates this Agreement or any Order for convenience pursuant to Section 17.1, or if Planet DDS terminates this Agreement due to Customer’s material breach, Customer shall remain responsible for: (i) all fees for professional services, implementation, training, data conversion, and other non-recurring services rendered prior to the effective date of termination; and (ii) all recurring subscription fees for the applicable Services through the remainder of the then-current Term, which shall become immediately due and payable upon the effective date of termination.

17.3 Survival.

Upon termination or expiration of this Agreement, Sections 2, 3, 4, 5, 7, 8, 10, 11, 14, 17.2 and 18 of the Agreement along with all payment obligations under this Agreement with respect to fees accrued prior to termination, and any other right or obligation of the Parties in this Agreement or in any Product-Specific Terms that, by its nature, should survive termination or expiration of this Agreement, shall survive such termination or expiration.

18. MISCELLANEOUS.

18.1 Complete Agreement.

This Agreement, including any Exhibits attached hereto and any documents or agreements incorporated herein by reference, constitute the complete and exclusive statement of the agreement between Customer and Planet DDS, and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. This Agreement may not be modified except upon mutual agreement by the Parties in writing or as otherwise expressly set forth herein. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) this Agreement (including the Exhibits hereto); (b) the Product-Specific Terms; (c) Orders (except as expressly agreed to by the Parties that an Order provision supersedes the Agreement or the applicable Product-Specific Terms); (d) the BAA (except to the extent the application of any other terms would result in a violation of HIPAA, in which case the terms of BAA shall govern) and any other documents incorporated herein by reference; and (e) the Documentation.

18.2 Assignment.

This Agreement shall bind the Parties and their respective successors and assigns. Planet DDS may assign this Agreement without Customer’s prior written consent to an affiliate, in connection with a change of control, or to a third party that acquires assets of Planet DDS to which this Agreement or the Services provided hereunder relate. Customer may assign the Agreement to an affiliate or due to a change of control or corporate reorganization upon prior written notice to Planet DDS and subject to the execution by Customer and the applicable assignee of an assignment and assumption agreement in a form reasonably acceptable to Planet DDS and payment of all fees accrued prior to the effective date of such assignment.

18.3 Force Majeure.

Neither Party will be responsible for any failure to perform due to causes beyond its reasonable control, including acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes and the like, except that this provision shall not limit Customer’s obligation to make payments under the Agreement.

18.4 Governing Law and General Provisions.

This Agreement will be governed by the laws of the State of Delaware, USA, excluding the application of its conflicts of law rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in the State of Delaware for the resolution of any dispute arising out of or relating to this Agreement, and each Party irrevocably waives any objection to venue in such courts, including on the basis of inconvenient forum. If any part of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant part shall be deemed deleted. Any modification to or deletion of a provision under this clause shall not affect the validity of the remainder of the Agreement, which shall remain valid and enforceable according to its terms. The word “including” shall mean “including without limitation” and “including but not limited to” to provide the broadest interpretation. The headings contained in this Agreement are for reference only and shall not affect the meaning or interpretation of this Agreement. Planet DDS’s failure to exercise or enforce any right or power under this Agreement shall not constitute a waiver of such right or power.

18.5 Third Parties.

Nothing contained in this Agreement is intended to confer upon any person other than the Parties hereto and their respective successors and permitted assigns, any benefit, right or remedy under or by reason of this Agreement, except with respect to Planet DDS Parties who shall be deemed third party beneficiaries under this Agreement but solely with respect to those terms that specifically reference a Planet DDS Party or the Planet DDS Parties.

18.6 Notices.

Any notice or communication from one Party to the other is to be in writing and either personally delivered or sent via certified mail, postage prepaid and return receipt requested to the addresses in the applicable Order (as such address may be updated from time to time upon notice to the other Party). In addition, the Parties may use e-mail for notice, provided that the receiving Party acknowledges receipt of the e-mail in writing, such acknowledgment not to be unreasonably withheld. All notices are to be in English and will be effective upon receipt or, in the case of e-mail notice, upon written acknowledgment. To be clear, an automatically generated e-mail response, such as one designed to alert recipients that the sender is out of the office and unable to respond to e-mails, shall not constitute acknowledgment for purposes of this Section.

18.7 Changes to this Agreement.

Planet DDS may modify this Agreement at any time by posting a revised version at https://www.planetdds.com/terms/, which modifications will become effective with respect to Customer upon the earlier of (x) Customer’s execution of a new Order that incorporates this Agreement and (y) the start of Customer’s next Renewal Term. If Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose not to renew in accordance with Section 16.2.

EXHIBIT A – LICENSED USER LIMITATIONS

  1. “Dummy”, generic and/or shared Licensed User IDs and passwords are prohibited.
  2. Each issued Licensed User ID and password shall be assigned to a single, unique and individually named human person. For example, a Licensed User ID shall be issued for the individual “Joan Smith”, not “Nurse 1.”
  3. Licensed Users may not be computerized bots, scripts, screen scrapers and/or any other automated mechanism designed to access the Services posing as a human user, and no Licensed User shall permit their Licensed User ID to be used with any such automated mechanism. Any access to and use of the Services via programmatic, robotic, scripted or any other automated means not provided as part of the Services is strictly prohibited.
  4. A Licensed User is expected to access the Services via a single Session. Inactive sessions (including where a Licensed User maintains Sessions on multiple devices simultaneously) may be auto-terminated as an added security precaution.

EXHIBIT B – SUPPORT

1. Enterprise Customers.

1.1. Customer shall provide a person(s) or team(s) of Level 1 Support personnel to act as its internal Help Desk(s).

1.2. Level 1 Support, provided by Customer’s internal Help Desk, is the first line of support for all Licensed Users of Customer, responsible for resolving issues raised by its Licensed Users, except those of an unusual, technical or defective nature.

1.3. If Customer’s Help Desk cannot, after a reasonable expenditure of time and effort, resolve an issue raised by its Licensed Users, the issue may then be escalated to Level 2 Support. Level 2 Support is provided by Planet DDS.

1.4. Planet DDS shall provide unlimited Level 2 Support to Customer’s Help Desk. Level 2 Support will be provided during Planet DDS’s normal business hours.

1.5. Level 2 Support typically addresses issues of an infrequent, unusual, technical, or defective nature, issues that are not typically encountered.

1.6. Level 2 Support shall support Customer’s Help Desk but will not directly support Customer’s Licensed users.

1.7. A resolution by Level 2 Support may require the assistance of Customer’s Help Desk. Any resolution of an issue by Level 2 Support shall be propagated by Customer’s Help Desk to the appropriate Licensed User(s).

1.8. Should Planet DDS determine that some portion of the Level 2 Support it is providing to Customer is in fact training or Level 1 Support, Planet DDS reserves the right to bill Customer for these services at the training rate therefor.

2. Single Practice Customers.

2.1. Customer shall designate a person or team to act as its Support Contact.

2.2. Planet DDS shall provide unlimited Level 1 and 2 Support via Customer’s Support Contact. Support will be provided during Planet DDS’s normal business hours.

2.3. Should Planet DDS determine (in its sole discretion) that some portion of the Support it is providing to Customer is in fact training, Planet DDS reserves the right to bill Customer for these services at the training rate therefor.