“MouthWatch” refers to MouthWatch LLC.
"Images" shall mean still or video images taken with the MouthWatch Intraoral Camera or other MouthWatch Imaging Devices.
“Information” shall mean Images, notes and any other graphic or textual data created, stored or accessed through the use of MouthWatch products.
“Products” shall mean all products offered by MouthWatch, each of which may consist of one or more components. The components include:
The MouthWatch Button Capture Software Module is used to allow various user-provided image management software programs to recognize the image capture command produced by the MouthWatch intraoral Camera when the image capture button on the Camera is pressed. This Module has no other functionality.
The MouthWatch Connect Software Module is used to store Images on a Mouthwatch server, and to enable the review, comparison and secure sharing with others of those images and text entered by the user. These functions are referred to as the “Connect Service”.
The MouthWatch ExamTab Software Module is used to store and access Images and notes in patient-specific folders on the MouthWatch-provided tablet computer. The Module also allows these Images and notes to be printed or exported.
The MouthWatch InterActive Software Module is used to interactively communicate and securely share images between two locations in teledentistry applications, and is collectively referred to as the “InterActive Service”
Connect and InterActive Services are collectively referred to as the “Services”.
“Software” shall mean any software provided by MouthWatch, including that which is used to capture Images (Button Capture), to store and access images (ExamTab) and to provide Services (Connect and InterActive). Software includes any upgrades which may occur from time to time. MouthWatch is under no obligation to upgrade or otherwise change its Software Modules; however the Software may be upgraded from time to time to modify, add or delete functions and services.
The Software and Services are intended to be used exclusively with MouthWatch Intraoral Camera.
The Products, Software and Services are intended to be used as informational and management aids only, designed to facilitate the exchange of Information, and are not offered or provided for the purpose of diagnosing, treating or prescribing for any condition, illness or injury. The use of the Products, Software or Services are not a substitute for professional evaluation and decision-making by appropriately licensed and qualified dentists and other health care professionals in making diagnoses and/or treatment decisions. MouthWatch does not assure the accuracy, completeness or currency of any Information created, stored or accessed through the use of its Products, Software or Services. The Products, Software and Services do not diagnose any injury, illness, disease or other health condition, or recommend any treatment, therapy or health care provider.
You expressly acknowledge and agree that MouthWatch is not responsible for the results of your decisions resulting from the use of the Products, Software or Services.
MouthWatch does not assume any responsibility for any aspect of health care advice, treatment or other services provided or administered or not provided or administered with the aid of MouthWatch Products, Software or Services.
1. DATA PROTECTION
2. ACCESS TO FUNCTIONALITY
3. PROPRIETARY RIGHTS AND LICENSE
All trade marks, copyright, database rights and other intellectual property rights of any nature related to Mouthwatch Products together with the underlying software code are owned by MouthWatch. MouthWatch hereby grants you a non-transferable, worldwide, non-exclusive, royalty-free revocable license to use the Software for your use in accordance with these Terms.
Except for the rights expressly granted above, these Terms transfer to you, including any related user, no right, title, or interest in the Software, or the content of the Software nor any copyright, patent, trademark, trade secret, or other intellectual property or proprietary right therein.
MouthWatch retains sole and exclusive title to all portions of the Software, and any copies thereof, and you, including any related users, hereby assign to MouthWatch all right, title, and interest in and to any modifications you or any related user makes to the Software, whether or not such modifications are permitted.
4. CONDITIONS OF USE
You will not, nor allow third parties on your behalf to (i) make and distribute copies of the Software; (ii) attempt to copy, reproduce, alter, modify, reverse engineer, disassemble, decompile, transfer, exchange or translate the Software; (iii) create derivative works of the Software of any kind whatsoever; (iv) sell, license, sublicense, lease, rent or transfer to any third party whether for profit or without charge, any portion of the Software; (v) publish or otherwise communicate any review of, or information about, the performance of the Software to any third party without the prior written consent of MouthWatch; (vi) download, or otherwise use the Software in violation of any laws or regulations, including U.S. Department of Commerce Export Administration regulations and other applicable laws; or (vii) use the Software in any situation in which failure or malfunction could lead to possible injury, loss of life or catastrophic property damage.
You represent and warrant that you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a "terrorist supporting" country and you are not listed on any US Government list of prohibited or restricted parties.
MouthWatch Services are available via the Internet only. MouthWatch will use reasonable efforts to make the Services available at all times. However you acknowledge the Services are provided over the internet and mobile networks and so the quality and availability of the Services may be affected by factors outside MouthWatch’s reasonable control.
MouthWatch does not accept any responsibility whatsoever for unavailability of the Services, or any difficulty or inability to download or access content or any other communication system failure which may result in the Service being unavailable.
7. SYSTEM AND NETWORK REQUIREMENTS
With the exception of MouthWatch ExamTab, in order to use MouthWatch products, you are required to have a PC or Apple computer system, MouthWatch Intraoral Camera, internet access, and the necessary minimum system configuration.
System configuration requirements are as follows:
You acknowledge that the terms of agreement with your respective network provider ("Network Provider") will continue to apply when accessing the Software or using the Services. As a result, you may be charged by the Network Provider for the duration of the connection while accessing the Software and Services or any such third party charges as may arise. You accept responsibility for any such charges that arise.
If you are not the bill payer for the network services being used, you will be assumed to have received permission from the bill payer for using the network connection.
MouthWatch is not responsible for the performance of or charges associated with the use of the locally provided computer or network connections.
8. MODIFICATION OR TERMINATION OF SERVICES
MouthWatch reserves the right to modify its Product offerings including Software and Services at any time without notice to you.
If MouthWatch intends to terminate Services, it will notify you at least fourteen (14) days in advance, and will provide instructions for the downloading of any information stored on Mouthwatch servers.
MouthWatch reserves the right to implement or adjust charges for use of Services at any time and for any reason. You may discontinue your use the Services at any time by notifying MouthWatch in writing.
In the case of non-payment, MouthWatch may terminate use of the Services to you at any time with or without prior notification by suspending your user account name and password. Upon any termination, (i) MouthWatch will provide instructions for the downloading of any information stored on Mouthwatch servers, (ii) the rights and licenses granted to you herein shall terminate; and (iii) you must cease all use of the Service.
Termination between you and MouthWatch may only act to discontinue your personal access to the Service and such termination may not act to terminate any other contracts related to the Service between any other user and MouthWatch.
9. HIPAA COMPLIANCE
You are responsible to comply with all applicable laws and regulations regarding uses and disclosures of individuals’ personal information, including protected health information, including without limitation the Privacy and Security Rules promulgated under the Health Insurance Portability and Accountability Act ("HIPAA").
If and to the extent that, by providing any Product, Software or Services, MouthWatch is acting as your "business associate," as defined at 45 C.F.R. § 160.103, please refer to the MouthWatch Business Associate Agreement.
10. LIMITATION OF LIABILITY
In no event will MouthWatch be liable to you or any other person for any direct, indirect, special, punitive, exemplary or consequential losses or damages of whatsoever kind arising out of your use or access (or inability to use or access, or incorrect use or access), or the use or access (or inability to use or access, or incorrect use or access) by others, of the Products, Software or Services, including loss of profit or the like, whether or not in the contemplation of the parties, whether based on breach of contract, tort (including negligence), product liability or otherwise.
MouthWatch shall not be liable to you for any damage or alteration to your equipment including but not limited to computer equipment, handheld device or mobile telephones as a result of the installation or use of the Software.
To the extent permitted by law, MouthWatch’s, total maximum cumulative liability hereunder in connection with these Terms, whether arising under contract or otherwise, are limited to the fees received by MouthWatch (if any), specifically relating to your use of the Products or Services which are the subject of the claim.
YOU ASSUME ALL RISK FOR SELECTION AND USE OF THE PRODUCT, SOFTWARE AND SERVICES, AND THE CONTENT PROVIDED THEREON. MOUTHWATCH SHALL NOT BE RESPONSIBLE FOR ANY ERRORS, MISSTATEMENTS, INACCURACIES OR OMISSIONS REGARDING CONTENT DELIVERED THROUGH THE SOFTWARE OR ANY DELAYS IN OR INTERRUPTIONS OF SUCH DELIVERY.
YOU ACKNOWLEDGE THAT MOUTHWATCH: (I) HAS NO CONTROL OF OR RESPONSIBILITY FOR YOUR USE OF THE PRODUCT, SOFTWARE AND SERVICES, OR CONTENT PROVIDED THEREON; (II) HAS NO KNOWLEDGE OF THE SPECIFIC OR UNIQUE CIRCUMSTANCES UNDER WHICH THE PRODUCT, SOFTWARE AND SERVICES, OR CONTENT PROVIDED THEREON MAY BE USED BY YOU; (III) UNDERTAKES NO OBLIGATION TO SUPPLEMENT OR UPDATE CONTENT OF THE SOFTWARE; AND (IV) HAS NO LIABILITY TO ANY PERSON FOR ANY DATA OR INFORMATION INPUT ON THE SOFTWARE OR SERVICE BY PERSONS OTHER THAN MOUTHWATCH.
TO THE GREATEST EXTENT PERMITTED BY LAW, MOUTHWATCH SHALL NOT BE LIABLE TO ANY PERSON (INCLUDING BUT NOT LIMITED TO YOU AND PERSONS TREATED BY OR ON BEHALF OF YOU) FOR, AND YOU AGREE TO INDEMNIFY AND HOLD MOUTHWATCH HARMLESS FROM ANY CLAIMS, LAWSUITS, PROCEEDINGS, COSTS, ATTORNEYS’ FEES, DAMAGES OR OTHER LOSSES (COLLECTIVELY, "LOSSES") ARISING OUT OF OR RELATING TO, (I) YOUR USE OF THE PRODUCT, SOFTWARE AND SERVICES, OR CONTENT PROVIDED THEREON OR ANY EQUIPMENT FURNISHED IN CONNECTION THEREWITH; AND (II) ANY DATA OR INFORMATION INPUT ON THE SOFTWARE BY YOU, IN ALL CASES INCLUDING BUT NOT LIMITED TO LOSSES FOR TORT, PERSONAL INJURY, MEDICAL MALPRACTICE OR PRODUCT LIABILITY.
IN NO EVENT SHALL MOUTHWATCH BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, OR DOWN TIME,OR THIRD PARTY OR CONTIGENT LIABILITIES, EVEN IF MOUTHWATCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
AS BETWEEN YOU AND MOUTHWATCH, YOU HEREBY ASSUME FULL RESPONSIBILITY FOR ENSURING THE APPROPRIATENESS OF USING AND RELYING UPON THE INFORMATION IN VIEW TO YOU THROUGH MOUTHWATCH’S PRODUCTS , SOFTWARE AND SERVICES, AND FOR THE EVALUATION AND ACTIONS REGARDING ALL ATTENDANT CIRCUMSTANCES, INDICATIONS, AND CONTRAINDICATIONS.
MOUTHWATCH IS NOT RESPONSIBLE FOR ADDRESSING ANY CLAIMS BY YOU OR ANY THIRD PARTY RELATING TO YOUR POSSESSION AND/OR USE OF A PRODUCT, INCLUDING BUT NOT LIMITED TO: (A) PRODUCT LIABILITY CLAIMS; (B) ANY CLAIM THE PRODUCT FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (C) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.
11. DISCLAIMER OF WARRANTIES
To the maximum extent permitted by law, MouthWatch makes no representation or warranty whatsoever, express or implied, including but not limited to representations or warranties regarding the accuracy or nature of the content of any Product, Service or Software, nor warranties of title, non-infringement, merchantability or fitness for a particular purpose. MouthWatch is not responsible for the investigation, defense, settlement, or discharge of any third party intellectual property infringement claim.
The Products, Software and Services are provided "as is" and "as available" without warranty of any kind.
You acknowledge that updates to Products, Services and Software are at the sole discretion of MouthWatch and that Mouthwatch makes no representation or warranties whatsoever, express or implied, with respect to the compatibility of the Software, or of future releases thereof, with any computer hardware or software, nor does MouthWatch represent or warrant the continuity of the features or the facilities provided by or through the Products, Services and Software as between various releases thereof.
Any warranties expressly provided herein do not apply if: (i) you alter, mishandle or improperly use, store or install all, or any part, of the Products, Services and Software, (ii) you store or install the Software or Information on a computer system which fails to meet the specifications provided by MouthWatch, or (iii) the breach of warranty arises out of or in connection with acts or omissions of persons other than MouthWatch.
No salesperson or other representative of any party involved in the distribution of the Products, Services or Software is authorized to make any warranties with respect to the Product beyond those contained in these Terms. Oral statements do not constitute warranties, shall not be relied upon by you, and are not a part of these Terms.
In the event of any failure of the Product, Services or Software to conform to any applicable warranty, you may notify Mouthwatch, and Mouthwatch will refund the purchase price, if applicable, for the Product to you; and to the maximum extent permitted by applicable law, Mouthwatch will have no other warranty obligation whatsoever with respect to the Product.
12. FURTHER DISCLAIMER
The Product does not endorse or recommend for or against any treatment, drugs or other products or services, diagnose any injury, illness, disease or other health condition, or recommend any therapy or health care provider. The Products, Services and Software are communications resources only. You and other healthcare practitioners with whom you share imaging and other medical information obtained through the use of any Product, Service or Software must use your/their own judgment in using the information created, stored or accessed through use of the Product, Service or Software.
The Products, Service or Software are not offered or provided for the purpose of diagnosing, treating or prescribing for any injury, illness, disease or other health condition. Only dentists, physicians and other licensed health care professionals may, within the scope of their respective licensure and qualifications, diagnose, treat or prescribe for injuries, illnesses, diseases and other health care conditions.
The Products, Service or Software are offered to assist licensed dentists, physicians and other healthcare professionals collect and organize health care information, to learn more about health care issues that relate to that information, and to communicate among themselves and with other healthcare providers more effectively. MouthWatch shall not have any responsibility for any clinical decision-making made in reliance upon or otherwise in connection with the information exchanged through use of the Products, Service or Software.
The information the Products collect regarding individuals’ medical history and/or physical condition is only a partial record, and is not a replacement for the medical and other records that are maintained by you and other healthcare providers. Therefore, you should not act upon any of the information you receive through the Products, Service or Software without discussing the matter first with your patient(s), the patient(s)’ other health care providers, including without limitation any dentist or physician who has referred the patient to you or has requested your consultation in connection with his or her treatment of an individual, and other healthcare providers as you determine to be appropriate.
You expressly acknowledge and agree that MouthWatch is not responsible for the results of your decisions resulting from the use of the Products, Service or Software including, but not limited to, your diagnosis of or failure to diagnose any health condition, and your determination of any specific treatment, prescription or referral.
MouthWatch does not assume any responsibility for any aspect of healthcare administered or not administered with the aid of Information the Products, Service or Software provide.
If for any reason any provision of these Terms is determined to be invalid or unenforceable under any statute or rule of law by a court of competent jurisdiction, such provision shall be interpreted in order to give effect to such provision to the maximum extent permitted by law, and the remaining provisions shall continue in full force and effect.
These Terms shall be interpreted, construed, and governed by and in accordance with the laws of the United States. You irrevocably submit to the jurisdiction of the courts of the United States.
These Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, oral or written, and all other communications relating to the subject matter hereof.
No agency, partnership, joint venture or employment relationship is created as a result of these Terms.
The failure of MouthWatch to enforce any part of these Terms shall not constitute a waiver of its right to later enforce that or any other part of these Terms.
The section headings in these Terms are for convenience only and shall not affect their interpretation.
These Terms are personal to you. The rights and obligations contained herein may not be assigned, transferred or sublicensed to any other party without the written consent of MouthWatch.
If you have any questions in relation to these Terms, or complaints or claims with respect to the Software please contact MouthWatch, LLC at 18 East 50th Street, 7th Floor, New York NY 10022, (877) 544-4342, or firstname.lastname@example.org.