Last modified: March 30th, 2020
This Service Agreement (“Agreement”) is entered into between Customer (the “Customer”) and Greyfinch, LLC (“Greyfinch”) on date payment was processed (the “Effective Date”). Greyfinch and Customer agree that the following terms and conditions will apply to the services provided under this Agreement and Orders placed thereunder.
1. Definitions. Under this Agreement, the following terms shall have the definitions provided below
1.1 “Customer Content” means all data and materials provided by Customer to Greyfinch for use in connection with the Services, including, without limitation, Customer and third party data.
1.2 “Documentation” means the user guides, online help, training materials, and other documentation provided or made available by Greyfinch to Customer regarding the use or operation of the Platform or the Services.
1.3 “Host” means the computer equipment on which the Software is installed, which is owned and operated by Greyfinch or its subcontractors.
1.4 “Platform” means the web-based system maintained by Greyfinch or its designees or subcontractors through which Customer will access the Services and Software.
1.4 “Other Services” means all technical and non-technical services performed or delivered by Greyfinch under this Agreement, including, without limitation, implementation services and other professional services, training, and education services.
1.5 “Services” means all of the services available through the Platform as described in Exhibit A to this Agreement and any other services that become available through the Platform during the Subscription Term.
1.6 “Software” means the object code version of any software to which Customer is provided access as part of the Services, including any updates, new versions or applications developed to allow Customer to access the Platform.
1.7 “Subscription Term” means that period which Customer will have on-line access and use of the Software. The initial Subscription Term shall be two (3) months. Following the initial Subscription Term, the Subscription Term shall renew for successive one (1) month periods unless either party delivers written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current Subscription Term.
1.8 “Users” means employees or agents of Customer that are authorized to access and use the Services and are assigned a user ID issued by Greyfinch.
2. Access to Services.
2.1 During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the Platform and the Services solely for internal business operations subject to the terms of this Agreement and up to the number of Users documented in Exhibit A.
2.2 Customer acknowledges that this Agreement is a services agreement and Greyfinch will not be delivering copies of the Software to Customer as part of the Services.
3. Restrictions. Customer shall not, and shall not permit any affiliate, subsidiary, User or person under its control to: (i) copy or republish the Services or Software, (ii) make the Services available to any person other than authorized Users, (iii) modify or create derivative works based upon the Services, (iv) remove, modify or obscure any copyright, trademark or other proprietary notices contained on the Platform or in the Software used to provide the Services, (v) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services, except and only to the extent such activity is expressly permitted by applicable law, (vi) access the Platform or use the Documentation in order to build a similar product or competitive product, or (vii) create, distribute, or sell any web-based software or service that would reasonably be expected to compete with the Services or Software offered through the Platform. Subject to the limited licenses granted herein, Greyfinch shall own all right, title, and interest in and to the Software, Services, Documentation, Platform, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title, and interest it may have in the foregoing to Greyfinch.
4. Customer Responsibilities.
4.1 Assistance. Customer shall provide commercially reasonable Customer Content and assistance to Greyfinch to enable Greyfinch to deliver the Services. Upon request from Greyfinch, Customer shall promptly deliver Customer Content to Greyfinch in an electronic file format specified and accessible by Greyfinch. Customer acknowledges that Greyfinch’s ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.
4.2 Compliance with Laws. Customer shall comply with all applicable local, state, national, and foreign laws in connection with its use of the Services, including those laws related to data privacy, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the transmission of technical or personal data. Customer acknowledges that Greyfinch exercises no control over the content of the information transmitted by Customer through the Platform or the Services. Customer shall not upload, post, reproduce, or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
4.3 Unauthorized Use; False Information. Customer shall: (a) notify Greyfinch immediately of any unauthorized use of any password or user ID or any other known or suspected breach of security, (b) report to Greyfinch immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected by Customer or any User, and (c) not provide false identity information to gain access to or use the Services.
4.4 Customer Input. Customer is solely responsible for collecting, inputting, and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark, or other intellectual property right of any third party, or (ii) contains anything that is obscene, defamatory, harassing, offensive or malicious. Customer shall: (i) notify Greyfinch immediately of any unauthorized use of any password or user ID or any other known or suspected breach of security, (ii) report to Greyfinch immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer or any User, and (iii) not provide false identity information to gain access to the Platform or to use the Services.
4.5 License from Customer. Subject to the terms and conditions of this Agreement, Customer hereby grants, bargains and conveys to Greyfinch a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display, transmit, and use Customer Content for any lawful purpose limited only by any restrictions that would also apply to Customer.
4.6 Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. Greyfinch or its licensors retain all ownership and intellectual property rights to the Services, Software, and anything developed or delivered under this Agreement. Third party technology that may be appropriate or necessary for use with some aspect of the Platform is specified in the Documentation. Customer’s right to use such third party technology is governed by the terms of the third party technology license agreement specified by Greyfinch and not under this Agreement.
The Code on Dental Procedures and Nomenclature is published in Current Dental Terminology
(CDT), Copyright © American Dental Association (ADA). All rights reserved.
4.7 Suggestions. Greyfinch shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Users, relating to the operation of the Services.
4.8 Access to Customer Content. Upon written request from Customer, Greyfinch shall deliver Customer’s data compiled from Customer Content at no charge up to one (1) time during any twelve-month period during the Subscription Term.
5. Orders and Payment.
5.1 Orders. All Services used by Customer shall be governed exclusively by this Agreement and any applicable schedule or exhibit. In the event of a conflict between the terms of an exhibit and this Agreement, the terms of the exhibit shall take precedence.
5.2 Invoicing and Payment. Unless otherwise provided in applicable exhibit, Greyfinch shall invoice Customer for all fees provided in Exhibit A. Customer shall pay all invoices within thirty (30) days of the date of the invoice. Except as expressly provided otherwise, fees are non-refundable.
5.3 Late Fees. If Customer fails to pay any outstanding invoice within thirty (30) days of the date of such invoice, Customer will incur a late fee equal to 1.5% of any outstanding balance due and an additional 1.5% late fee per each thirty (30) day period or portion thereof any portion of such balance remains outstanding.
5.4 Expenses. Customer will reimburse Greyfinch for its and its employees’ reasonable, out-of-pocket travel and related expenses incurred in performing the Services and the Other Services and for any fees Greyfinch incurs from third parties related to delivering the Services.
5.5 Taxes. Greyfinch shall bill Customer for applicable taxes as a separate line item on each invoice. Customer shall be responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the Services.
6. Term and Termination.
6.1 Term of Agreement. The term of this Agreement shall begin on the Effective Date and shall continue until terminated by expiration of the Subscription Term or by either party as outlined in this Section.
6.2 Termination. Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach. Either party may also terminate this Agreement at any time upon thirty (30) days prior written notice to the other party.
6.3 Suspension for Non-Payment. Greyfinch reserves the right to suspend delivery of the Services if Customer fails to timely pay any amounts due to Greyfinch under this Agreement, but only after Greyfinch notifies Customer of such failure and such failure continues for ten (10) days. Suspension of the Services shall not release Customer of its payment obligations under this Agreement. Customer agrees that Greyfinch shall not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to suspension of the Services resulting from Customer’s nonpayment.
6.4 Suspension for Ongoing Harm. Greyfinch reserves the right to suspend delivery of the Services if Greyfinch reasonably concludes that Customer or any User’s use of the Services is causing immediate and ongoing harm to Greyfinch or others. In the extraordinary case that Greyfinch must suspend delivery of the Services, Greyfinch shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. Greyfinch shall not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to any suspension of the Services in accordance with this Section 6.4. Nothing in this Section 6.4 will limit Greyfinch’s rights under any other provision of this Agreement, including the limitation of liability contained in Section 9..
6.5 Effect of Termination. Upon termination of this Agreement or expiration of the Subscription Term, Greyfinch shall immediately cease providing the Services and all usage rights granted under this Agreement shall terminate. If Greyfinch terminates this Agreement due to a breach by Customer, then Customer shall immediately pay to Greyfinch all amounts then due under this Agreement and to become due during the remaining term of this Agreement, but for such termination. If Customer terminates this Agreement due to a breach by Greyfinch, then Greyfinch shall immediately repay to Customer all pre-paid amounts for any Services scheduled to be delivered after the termination date. Upon termination of this Agreement and upon subsequent written request by the disclosing party, the party who has received Confidential Information (defined below) shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.
7. Service Level Agreement. There is no service level agreement.
8. Warranties. Greyfinch represents and warrants that it will provide the Services in a professional manner consistent with general industry standards. For any breach of a warranty, Customer’s exclusive remedy shall be as provided in Section 9. Greyfinch WARRANTS THAT THE SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION. Greyfinch DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT Greyfinch WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT Greyfinch DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY Greyfinch (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER Greyfinch NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF OR ACCESS TO THE PLATFORM OR SOFTWARE WILL BE UNINTERRUPTED, VIRUS-FREE, OR ERROR-FREE, NOR SHALL Greyfinch OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS.
9. Limitations of Liability. NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF Greyfinch) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA, OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. The foregoing limitations shall apply to the parties’ obligations (or any breach thereof) under Sections entitled “Restriction,” “Indemnification,” or “Confidentiality.”
10.1 Indemnification by Greyfinch. If a third party makes a claim against Customer that the Services infringe any patent, copyright, or trademark, or misappropriates any trade secret, or that Greyfinch’s negligence or willful misconduct has caused bodily injury or death, Greyfinch shall defend Customer and its directors, officers, and employees against the claim at Greyfinch’s expense and Greyfinch shall pay all losses, damages, and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Greyfinch, to the extent arising from the claim. Greyfinch shall have no liability for any claim based on (a) the Customer Content, (b) modification of the Services not authorized by Greyfinch, or (c) use of the Services other than in accordance with the Documentation and this Agreement. Upon any claim of infringement, Greyfinch may, at its sole option and expense, procure for Customer the right to continue use of the Services, modify the Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date.
10.2 Indemnification by Customer. If a third party makes a claim against Greyfinch that the Customer Content infringes any patent, copyright, or trademark, or misappropriates any trade secret, or contains false, obscene, defamatory, harassing, offensive or malicious content, Customer shall defend Greyfinch and its directors, officers, and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
10.3 Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information, and authority reasonably requested by the other party in the defense and settlement of the claim.
11.1 Definition. “Confidential Information” means any information disclosed by a party to the other party, directly, or indirectly, which, (a) if in written, graphic, machine-readable, electronic, or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential, (c) is specifically deemed to be confidential by the terms of this Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself, including, without limitation, any assessments, presentation materials, conceptual product details, product designs, product specifications, business models, financials, financial projections, programming, coding, samples, prototypes, sales techniques, prospect lists or billing practices disclosed by either party. Confidential Information will also include information disclosed by third parties where the receiving party knows or should reasonably anticipate such information to be under an obligation of confidentiality. Subject to the display of Customer Content as contemplated by this Agreement, Customer Content is deemed Confidential Information of Customer. Software and Documentation are deemed Confidential Information of Greyfinch.
11.2 Confidentiality. During the term of this Agreement and for 5 years thereafter (perpetually in the case of Software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the disclosing party.
11.3 Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this Agreement and the relationship of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers, and investors.
12. General Provisions.
12.1 Non-Exclusivity. Customer acknowledges that the Platform, the Services and the Software are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Greyfinch’s ability to provide the Services or other technology, including any features or functionality first developed for Customer, to other parties.
12.2 Assignment. Neither party may assign this Agreement or any right under this Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party to which this Agreement relates, whether by merger, asset sale, or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ subcontractors in performing its duties under this Agreement, provided, however, that such party shall not be relieved of any obligation under this Agreement.
12.3 Notices. All notices, requests, demands, and other communications required or permitted hereunder shall be in writing, effective three (3) days after they are sent, and either (i) delivered in person (ii) sent by Express Mail or other overnight delivery service providing receipt of delivery (iii) mailed by Certified or Registered Mail, postage prepaid return receipt requested or (iv) sent by telecopy or other facsimile transmission as follows:
If to the Sellers, addressed or delivered in person to:
If to Greyfinch, addressed, or delivered in person to:
610 President Clinton Ave.
Little Rock, Arkansas, 72201
With a copy to:
610 President Clinton Ave.
Little Rock, Arkansas, 72201
12.4 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
12.5 Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.
12.6 Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.
12.7 Entire Agreement. This Agreement (including all schedules and exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement. This Agreement may be amended solely in a writing signed (manually or by electronic means) by both parties.
12.8 Survival. Sections 3, 6, and 8 through 12 of this Agreement shall survive the expiration or termination of this Agreement for any reason.
12.9 Interpretation. Headings, captions, section, or section numbers appearing in this Agreement are for ease of reference and convenience only, and shall in no way be deemed to define, modify, affect, limit, or describe the scope, intent or content of this Agreement or of provisions to which they relate.