Master Service Agreement

Overjet MSA

This Master Services Agreement including all Order Forms and the Custodian Service Provider Agreement (collectively, this "Agreement") is a legal agreement between you ("Customer") and Overjet, Inc. a Delaware corporation ("Overjet"), that governs your use of the Overjet Service, whether procured directly from Overjet or indirectly through an Overjet authorized reseller or distributor (a "Reseller"). Each of Overjet and Customer may be referred to as a “party” herein and together as the “parties.”  This Agreement is effective between the Parties as of the Subscription Start Date. Customer’s execution of an Order Form constitutes a binding noncancelable commitment to subscribe to the Service under the terms and conditions of this Agreement. All Order Forms and the Custodian Service Provider Agreement are incorporated into this Master Services Agreement by reference. All defined terms used herein shall have the meanings accorded to such terms herein

IMPORTANT - PLEASE READ CAREFULLY BEFORE YOU USE THE SERVICE

By accessing or using the Service, Customer acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms and conditions. If Customer is not willing to be bound by the terms of this Agreement, Customer may not access or use the Service.  If you are using the Service in your capacity as an employee or agent of a company or organization, then any references to “Customer” in this agreement shall refer to such entity and not to you in your personal capacity. You warrant that you are authorized to legally bind the company or organization on whose behalf you are accessing the Service. If you are not so authorized, then neither you nor your company or organization may use the Service in any manner whatsoever. Customer hereby waives any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.

The “Effective Date” of this Agreement is date which is the earlier of (a) Customer’s initial access to the Service through any online provisioning, registration or order process with Overjet or its authorized Resellers or (b) the effective date of the first Order Form that references this Master Services Agreement and is entered into between Customer and Overjet or between Customer or an Overjet authorized Reseller.

In consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.

Section 1. Provision of the Service

  1. Provision Generally.  The Service is Overjet’s proprietary clinical intelligence software platform, which employs deep learning models, neural networks and other artificial intelligence technologies to perform automatic clinical data analysis and includes all documentation and related materials provided to Customer on a cloud-based software-as-a-service basis (the “Service”).  During the Term (as defined herein), Overjet will provide Customer access to the Service and deliver to Customer through the Service the results of automatic clinical data analysis (the “Results”) of digital dental images submitted by Customer from the Permitted Sites to the Service (“Scan(s)”). 

  1. Order Forms. The parties may enter into one or more order forms hereunder (each, an “Order Form”), each setting forth relevant details for the provision of the Service to the Customer at the number of locations set forth in the Order Form (the “Permitted Site(s)”).  Each Order Form shall be titled an “Order Form”, be executed by both parties, reference this Master Services Agreement, and set forth the Subscription Term (as defined in Section5(b)), number of Permitted Sites, and pricing for the Service.  In addition, each Order Form may set forth additional terms and conditions applicable to such Order Form.  Each duly executed Order Form shall, upon execution, be deemed incorporated into this Agreement.  Upon Customer’s written request (which may be made via email), additional Permitted Sites may be added to an Order Form subject to Overjet’s approval, Customer’s payment of the applicable fees for such additional Permitted Sites and the parties’ execution of an amendment to the Order Form. 

  1. Dental Service Organizations. If Customer is a dental service organization (“DSO”), Customer’s Users (as defined in Section 2(a) below may include the dental practices managed by Customer (the “Practices”) and the employees, independent contractors and other authorized users of those dental practices (excluding competitors of Overjet).  Each Order Form shall set forth the Practices for which a subscription is being purchased and their Permitted Sites. Customer shall require the Practices to enter into a written agreement with Customer that requires the Practices to comply with the terms and conditions of this Agreement in their access and use of the Service and which disclaims all liability of Customer’s service providers (including Overjet). Customer shall not make any representations or warranties to its Practices on behalf of Overjet or with respect to the Service.

  1. Orders Through Resellers. Notwithstanding 1(b) and 1(c), if Customer is purchasing its subscription to the Service through an Overjet Reseller, Customer may be required to place its order with the Overjet Reseller instead of with Overjet, in which case Overjet will provision the Service for the number of Permitted Sites and Subscription Term ordered by such Reseller on behalf of Customer, and, if Customer is a DSO, the Practices and their Permitted Sites ordered by such Reseller on behalf of Customer.

  1. Order of Precedence. Unless otherwise expressly set forth in this Master Services Agreement, any conflict between any terms and conditions in this Agreement shall be governed in the following order of precedence: (i) this Master Services Agreement, then (ii) any Exhibit hereto, provided that an Order Form may expressly modify any term or condition of this Master Services Agreement (which modification must reference the modified term or condition herein, including the Section number thereof), which modification shall apply only as to that Order Form.  

Section 2. Access Right; Data License

  1. By Overjet. Subject to the terms and conditions of this Agreement, Overjet hereby grants to Customer a limited, non-exclusive, non-transferable right for Customer’s Users to access and use the Service in Canada, solely for Customer’s internal business purposes during the Subscription Term and solely in accordance with the documentation published by Overjet for the Service (the “Documentation”).  A “User” shall mean an employee, independent contractor, or other authorized user of Customer (excluding competitors of Overjet). All rights not expressly granted to Customer are reserved by Overjet and its licensors.  There are no implied rights. Customer shall be responsible for the compliance of its Users with the terms and conditions of this Agreement and the Documentation and shall be liable to Overjet for any breach of this Agreement or the Documentation by its Users. 

  1. By Customer. Customer hereby grants and shall obtain all necessary consent to grant, to Overjet a limited, worldwide, non-exclusive, royalty-free, fully paid up, transferable (upon assignment of this Agreement)  right and license (with right of sublicense) to use, reproduce, host, store, process, transmit, manipulate and display the Customer Data and the Results: (i) during the Term solely in connection with providing the Service to Customer; and (ii) to anonymize Customer Data and to use such anonymized Customer Data, during and after the Term, to improve, develop and market the Service.  Overjet shall have the right to allow Overjet’s third party contractors and services providers to exercise the licenses granted to Overjet in this Section to perform services for or on behalf of Overjet to the extent necessary to provide the Service to Customer and its Users and to permit Overjet to exercise its rights under this Section 2(b). Without limiting the above, Overjet may analyze Customer Data and Results, and data and results of other customers, to create anonymized statistics and data and generate industry benchmark or best practice guidance, recommendations and other data, in all cases that do not (and cannot be used to) identify Customer, its Users or any other individual, (the “Overjet Analysis Data”) and Overjet may during and after the Term use and disclose such Overjet Analysis Data in its sole discretion.  “Customer Data” means all data and information which Customer inputs into the Service, including without limitation the Scans.  Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data.  The content of Customer Data shall be Customer’s sole responsibility. 

  1. Integrations with Third Party Platforms.  The Service may support connections with certain third party services (“Third Party Platforms”). In order for the Service to communicate with such Third Party Platforms, Customer may be required to input credentials to authorize the Service to connect to Customer’s account in order to transmit and receive information and data from such Third-Party Platforms as directed or enabled by Customer. Customer is solely responsible for complying with any relevant terms and conditions of the Third Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third Party Platforms. Customer acknowledges and agrees that Overjet has no responsibility or liability for any Third Party Platform or any Customer Data exported to or from a Third Party Platform or for verifying any Customer Data that Customer imports from a Third Party Platform. Further, Customer acknowledges and agrees that Overjet will have no liability to Customer if integrations with the Third Party Platforms cease to be available for any reason, including without limitation failure of the Third Party Platform to make available its API or to notify Overjet of changes to its API.

  1. Updates. Overjet reserves the right to implement modifications, changes and other updates to the Service from time to time (“Updates”), and Overjet will update the applicable Documentation accordingly. Overjet may condition the implementation of new features, functionality or other modifications on Customer’s payment of additional fees provided that Overjet generally charges other customers for such modifications. 

  2. Pilot Subscriptions. If Customer receives a trial or evaluation subscription to the Service (a “Pilot Subscription”), then Customer may use the Service which are subject to the Pilot Subscription in accordance with the Agreement for the period granted by Overjet in the Order Form for the Pilot Subscription (the “Pilot Period”). Pilot Subscriptions are permitted solely for Customer’s use to determine whether to purchase a subscription to the Service and may have limited functionality and features. Customer’s right to access and use the Service will terminate at the end of the Pilot Period unless Customer elects to purchase a non-trial or evaluation version of the Pilot Offering under the Order Form or under a separate Order Form with Overjet. Overjet has the right to terminate a Pilot Subscription at any time for any reason. Notwithstanding anything to the contrary in this Agreement, the warranties, indemnities and other obligations of Overjet hereunder shall not apply to Pilot Subscriptions all of which are provided on an “as is” and “as available” basis without any representations, warranties and conditions, all of which are expressly disclaimed. Further, any data Customer enters into the Service, and any configurations made to the Service by or for Customer, during Customer’s Pilot Subscription will be permanently lost unless Customer orders a subscription to the same Service as covered by the Pilot Subscription or exports such data, before the end of the Pilot Period. 

  1. Beta Versions. Overjet may, from time to time in its sole discretion, make available to Customer early releases of new or modified features, functionality, or modules to the Service for evaluation and testing purposes (“Beta Functionality”). Customer will be informed if it is offered Beta Functionality and use of Beta Functionality is optional and is at Customer’s sole risk. Notwithstanding anything to the contrary in the Agreement, the warranties, indemnities and other obligations of Overjet hereunder shall not apply to Beta Functionality.  All Beta Functionality is provided on an “as is” and “as available” basis without any representations, warranties and conditions, all of which are expressly disclaimed. 

Section 3. Customer Cooperation

  1. Generally. Overjet’s ability to provide the Service shall be subject to Customer’s timely provision of information, cooperation and resources (including access to appropriate Customer personnel) as reasonably required by Overjet.  Overjet will not be responsible for delays to the extent caused by Customer’s failure to provide such timely information, cooperation or resources. Further, Customer acknowledges and agrees that Customer’s and its Users’ access and use of the Service is dependent upon access to telecommunications and Internet services.  Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required for Customer and its Users to access and use the Service, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing.  Overjet will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software. Overjet may provide notice to Customer from time to time of the version(s) of those products required in order for Customer and its Users to use the Service (e.g., supported browser versions). Customer acknowledges that if Customer desires to protect Customer’s transmission of data and/or files to Overjet, it is Customer’s responsibility to use a secure encrypted connection to communicate with and/or utilize the Service.

  2. Restrictions. Customer shall not (and shall require that its Users do not)  and shall not allow any third party to: (i) use the Service for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Service, or for any other purpose not expressly permitted herein; (ii) permit any User to access or use the Service except as envisioned by the Service in its normal operation or as specified herein; (iii) sell, resell, distribute, rent, lease, sublicense, service bureau, post, link, disclose or provide access to the Service, directly or indirectly, to any third party; (iv) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code or non-public APIs) associated with the Service; (v) use any robot, spider, scraper or other automated means to access the Service in an unauthorized manner, or engage in any scraping, data-mining, harvesting, data aggregating or indexing of the Service; (vi) create Internet "links" to or from the Service or "frame" or "mirror" any content forming part of the Service, other than on Customer's own intranets or otherwise for its own internal business purpose or access or search the Service by any means other than our publicly supported interfaces; (vii) use the Service to provide, or incorporate the Service into, any product or service provided to a third party; (viii) copy or modify the Service or any Documentation, or create any derivative work based on any of the foregoing; (ix) remove or obscure any copyright, proprietary or other notices contained in the Service or its Documentation or related materials; (x) access or use the Service to create a new or competitive product or service or build a new or competitive add-on, module, or enhancement to an existing product or service; (xi) attempt to probe, scan or test the vulnerability of the Service or breach the security or authentication measures of the Service; (xii) interfere with or disrupt the Service or the integrity or performance of the Service or related systems, network or data or overwhelm or attempt to overwhelm the infrastructure used to provide the Service by imposing an unreasonably large load on the Service that consumes extraordinary resources, such as by using “robots,” “spiders,” “offline readers” or other automated systems to send more request messages to servers than a human could reasonably send in the same period of time using a normal browser or going far beyond the use parameters for the Service; (xiii) circumvent any security or authentication measures of the Service or attempt to gain unauthorized access to the Service (or any portion thereof) or related systems, networks or data; (xiv) publicly disseminate information regarding the performance of the Service or Results; or (xv) use the Service in violation of applicable laws, rules, regulations or guidelines (including without limitation export laws) or otherwise in a manner not permitted by Overjet herein or in the Documentation.  Notwithstanding (i), (ii) or (iii), if Customer is a DSO, Customer may use the Service for its Practices and their Permitted Sites for which Customer has purchased a subscription.  All acts and omissions of Users shall be deemed to be those of Customer, and Customer shall be responsible therefor.  

  3. Passwords. Customer shall (and shall require its Users to) keep all passwords and API keys provided to it safe and secure, and shall be responsible for all use of the Service using passwords or API keys issued to Customer and Users.  Access credentials may not be shared. Customer shall notify Overjet immediately of any actual or suspected unauthorized use of its passwords or API keys for the Service.  Without limiting any of its other rights or remedies, Overjet reserves the right to suspend Customer’s or any User’s access to the Service if Overjet reasonably believes that Customer or such User has materially violated the restrictions and obligations in this Agreement (in which case, it shall provide Customer prompt written notice of such suspension). If any User who has access to a access credentials is no longer an authorized User of Customer, then Customer will immediately delete such access credentials and otherwise terminate such User’s access to the Service. 

  4. Customer Data.  Customer is solely responsible for all Customer Data.  Overjet does not guarantee the accuracy, integrity, legality or quality of Customer Data.  Customer shall not (and shall require that its Users do not): (i) upload or otherwise make available to Overjet any Customer Data that is unlawful or that violates the rights of any third parties; (ii) upload or otherwise make available to Overjet any Customer Data that Customer does not have a right to transmit or to make available to Overjet due to any law, rule, regulation, or contractual or other obligation; (iii) use, upload or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; or (iv) upload or otherwise make available to Overjet any Customer Data or other material that contains viruses, vulnerabilities, worms, trap doors, time bombs, Trojan horses or other harmful or malicious code, file, script, agent or program designed to permit unauthorized access to, or to erase or otherwise harm, interrupt, destroy, limit the functionality of any computer software, networks, systems or data or hardware or telecommunications equipment.  Customer represents and warrants that it has all rights and has obtained all necessary consents required to provide the Customer Data to Overjet through the Service and to grant Overjet the rights to process the Customer Data as provided in this Agreement. 

Section 4. Compensation

  1. Fees. Customer will pay Overjet the fees set forth in the applicable Order Form. All fees are payable in Canadian dollars and are nonrefundable except as otherwise expressly provided herein. Overjet reserves the right to charge interest on unpaid balances at the rate of the lower of 1.5% per month (19.56% annually) or the maximum amount permitted by law.  Customer agrees to pay all of Overjet’s costs of collection, including reasonable attorney’s fees, in the event Customer fails to pay undisputed amounts due hereunder.  Discounts offered for the Initial Subscription Term will not apply to a Renewal Subscription Term and, unless otherwise mutually agreed in an Order Form, fees for a Renewal Subscription Term will be automatically increased to reflect Overjet’s current list prices. 

(b) Invoices and Payment; Billing Contact. The parties agree that, unless otherwise set forth in the applicable Order Form, payment terms are net thirty (30) days from date of invoice.  Customer will provide Overjet with the email for its billing contact and will complete Overjet’s billing intake form upon request.  The Service will not be provisioned until Customer has provided Overjet with all required billing information.  Customer will keep such billing information current and complete and will promptly notify Overjet of any updates to its billing information.

(c) Taxes.  All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, provincial, local or other) associated with this Agreement, the Service, or Customer’s and its Users’ access to the Service.  Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Overjet’s income), which may be invoiced by Overjet from time to time.   

(d) Disputes. If Customer disputes an invoice, Customer shall notify Overjet within 30 days of the date of the invoice of the amount in dispute and the reason for the dispute and the parties shall work in good faith to expeditiously resolve the dispute.  Invoices not disputed within such 30 day period are deemed valid and undisputed and may not later be disputed.

(e) Purchase Through an Overjet Authorized Reseller.  If Customer has purchased a subscription to the Service through an Overjet Reseller, in lieu of paying Overjet directly, Customer may be required to make payment through such Reseller and Overjet’s obligations under this Agreement are subject to Customer fulfilling its payment obligations to the Reseller.

(f) Payment via Credit Card. If Customer is making its purchase using a credit card, debit card or other payment card (“Credit Card”), the following additional terms apply:

  1. Recurring Billing Authorization. By providing Credit Card information, Customer represents and warrants that it has the authority to charge the purchase to the Credit Card and hereby authorizes Overjet (or its third party credit card processing platform, currently Bill.com through QuickBooks) to automatically charge Customer’s Credit Card for all amounts due to Overjet under this Agreement in accordance with the applicable Order Form on the dates such amounts are payable as determined by Overjet. Customer acknowledges and agrees that if Customer is paying monthly, the amount billed and charged each month may vary depending on the number of Permitted Sites (and, with respect to DSO’s, Practices). At any time, Customer may change its Credit Card information by providing Overjet with updated Credit Card information.

  2. Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Overjet and Overjet may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate any affected Order Form and/or this Agreement.

  3. Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Overjet will charge Customer’s Credit Card (or invoice Customer directly) for any outstanding amounts payable by Customer for Customer’s use of the Services during the Subscription Term, after which Overjet will not charge Customer’s Credit Card for any additional fees.

Section 5. Term and Termination. 

(a)  Agreement Term. This term of this Agreement shall commence on the Effective Date and, unless earlier terminated as provided herein, shall continue until all Order Forms have terminated or expired (the “Term”) upon which it shall immediately terminate without further action of the parties.

(b)  Subscription Term.  The “Subscription Term” for each Order Form shall begin on the Subscription Start Date (as defined in and set forth in such Order Form) and, unless earlier terminated as provided herein or in such Order Form, shall continue for the initial subscription term set forth in such Order Form (the “Initial Subscription Term”) and thereafter shall renew for successive one year periods (each a “Renewal Subscription Term” and together with the Initial Subscription Term and any Pilot Period, the “Subscription Term”) unless either party notifies the other party at least thirty (30) days prior to the end of the then current Subscription Term of its nonrenewal of the Order Form. Upon any termination of this Agreement, all Order Forms shall immediately terminate without further action of the parties.

(c)  Termination. In the event of a material breach of this Agreement or any Order Form, the non-breaching party may terminate this Agreement or such Order Form, as appliable, provided that the non-breaching party provides written notice of such breach to the breaching party describing the breach in reasonable detail and the breaching party fails to cure such material breach within thirty (30) days after receipt of notice of the breach.  Either party may terminate this Agreement if the other party (i)  becomes insolvent or is unable to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not dismissed or vacated within forty-five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 

(d) Suspension. In addition to Overjet’s other rights hereunder, Overjet shall have the right to suspend Customer’s or any User’s access to the Service in the event Customer or a User breaches this Agreement and fail to cure such breach within thirty (30) days, Customer fails to pay undisputed amounts due to Overjet when due and fails to cure such nonpayment within ten (10) business days, or as may be required to comply with applicable law, in the event of a security risk to the Service or likely harm to the Service or to Overjet or its customers. Overjet will promptly restore access to the Service once the issue is resolved to Overjet’s reasonable satisfaction.

(e) Effects of Termination; Survival.  Upon any termination or expiration of this Agreement: all rights granted to Customer hereunder shall terminate, Overjet shall no longer provide access to the Service to Customer and its Users, and Customer and its Users shall cease using the Service. Each party shall return or destroy all Confidential Information of the other party in its possession or control, at the other party’s request.  All rights and obligations that accrued prior to termination or expiration, including but not limited to payment obligations, shall survive termination or expiration of this Agreement.  In addition, the following Sections, as well as any other provisions which by their nature should survive, shall survive termination or expiration of this Agreement: Sections 1(d), 2(b), 3(d), 4, 5(e), 6, 9, 11, 12, 13, 14, 15, 17 and 18.

Section 6. Independent Contractor

Overjet will perform the Services as an independent contractor and this Agreement will not be construed to create a partnership, joint venture, or employment relationship between Overjet and Customer.  No employee or agent of Overjet will represent himself or herself to be an employee or agent of Customer or enter into any agreement on Customer’s behalf or in Customer’s name.  No employee or agent of Customer will represent himself or herself to be an employee or agent of Overjet or enter into any agreement on Overjet’s behalf or in Overjet’s name.  Overjet will retain full control over the manner in which the Service is performed and Overjet’s employees and agents will not be entitled to workers’ compensation, retirement, insurance or other benefits afforded to employees of Customer.  Nothing in this Agreement will prohibit Overjet from providing services similar to those provided hereunder to other customers, including competitors of Customer.

Section 7. Data Security

Overjet shall implement and maintain appropriate technical and organizational measures with respect to the Service which are designed to prevent unauthorized access, use, alteration or disclosure of Customer Data; however, Overjet will have no responsibility for errors in transmission, unauthorized third-party access, loss, corruption, destruction, alteration, or unauthorized disclosure of or access to Customer Data which outside of Overjet’s reasonable control. All health information contained within Customer Data (personal health information or “PHI”) shall be subject to the terms and conditions of the Custodian Service Provider Agreement set forth at [insert link] as the same may be updated by Overjet from time to time to comply with applicable laws, rules, regulations and guidelines (the “CSPA” or “Custodian Service Provider Agreement”) which is incorporated by reference herein and shall apply with respect to the protection and handling of such information. In the event of any conflict between the Custodian Service Provider Agreement and this Master Services Agreement, the CSPA will control with respect to the protection of PHI. Customer acknowledges and agrees that Overjet does not provide an archiving or data backup service and Overjet agrees with Customer only that it will not intentionally delete any Customer Data from the Overjet Service (other than at Customer’s or a User’s request) prior to termination of the applicable Order Form. Overjet expressly disclaims all other obligations and liability with respect to storage and data backup. 

Section 8. Ownership

  1. Customer Ownership.  Notwithstanding anything to the contrary in this Agreement, as between Customer and Overjet, Customer owns all right, title and interest in and to the Customer Data and Customer’s Confidential Information, and to the Results provided by Overjet to Customer hereunder, and reserves all rights not expressly granted herein. Overjet hereby assigns and agrees to assign to Customer all of its right, title and interest in and to the Results, subject to Overjet’s rights set forth in Section 2(b).

(b) Overjet Ownership.  Customer acknowledges that it is obtaining only a limited right to use the Service to the extent expressly granted herein and that irrespective of any use of the word’s “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement.  Notwithstanding anything to the contrary in this Agreement, as between Overjet and Customer, Overjet owns all right, title and interest in and to  the Service, Documentation, Overjet Analysis Data, Improvements and Overjet Confidential Information, including but not limited to all inventions, technology, software, programs, routines, application programming interfaces, modules, components, subsets, objects, program listings, systems, utilities, tools, solutions, services, processes, formulae, designs, inventions, methods, algorithms, models, methodologies (including implementation methodologies), analysis, artificial intelligence, neural networks, data models, deep learning models, and other frameworks, user interface conventions and design patterns, screens and layouts, input and output formats, interfaces to third party products, documentation, specifications, materials, works of authorship, information, know-how, data, databases (including structures and taxonomies), and computer source and/or object code and any and all modifications, enhancements, improvements, new versions, new releases, corrections and derivative works of the foregoing, and all intellectual property rights in and to any and all of the foregoing, including any of the foregoing that incorporates or otherwise embodies Feedback and/or Improvements (all of the foregoing are collectively, “Overjet Materials”), and Overjet expressly reserves all rights not expressly granted herein. Further, Customer acknowledges that the Service as provided by Overjet is offered as an on-line, software as a service solution hosted by Overjet or its third party hosting providers, and that Customer has no right to obtain a copy of the object code or source code of any software underlying or used to provide the Service.

(c) Feedback. Customer, from time to time, may submit oral or written feedback to Overjet with respect to the Service or other Overjet products and services (collectively, “Feedback”). Customer grants to Overjet a worldwide, nonexclusive, royalty-free, fully paid, perpetual, irrevocable, transferable license (with right of sublicense) to use, reproduce, modify, translate, distribute, adapt, translate, publicly perform and display, import, sell, license, offer for sale, make, have made and otherwise commercially exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its products and services any service, product, invention, technology, enhancement, method, process, works of authorship, trade secret or other development (“Improvement”) incorporating or derived from any Feedback without any obligation to license or to make the Improvement commercially available.

Section 9. Confidentiality

(a)  Definitions and Primary Obligations. During and after the Term of this Agreement, each party receiving Confidential Information (as defined below) (the “Receiving Party”) from the other party (the “Disclosing Party”) may use such Confidential Information solely to the extent reasonably necessary to exercise its rights or perform its obligations under this Agreement, and may not disclose such Confidential Information to any third party (other than as permitted in Section 9(b) below).  “Confidential Information” means all information disclosed by one party to the other party hereunder during the Term to the extent that either: (i) if tangible, the information is marked as confidential or with similar marking at the time of disclosure, (ii) if disclosed orally or visually, is designated as confidential at the time of disclosure, or (iii) if, considering the nature of the information and circumstances of its disclosure, a reasonable person would understand it to be confidential; except that “Confidential Information” shall not include any information to the extent the Receiving Party can prove through its written records: (A) it is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (B) it is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (C) it is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information or breach of this Agreement; (D) it is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure; or (E) the Receiving Party’s use or disclosure thereof is not subject to any confidentiality constraints as agreed to in writing by the Disclosing Party (including under any Order Form).  Notwithstanding the above requirements or exclusions, (i) the Customer Data shall be considered Confidential Information of Customer and (ii) the terms and conditions of this Agreement (including pricing) and all Overjet Materials and any performance or benchmarking information with respect to the Service shall be considered Overjet Confidential Information and not Customer Confidential Information. 

(b) Protection.  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and the Receiving Party will only disclose Confidential Information to its and its affiliates’ directors, officers, employees and contractor personnel on a need-to-know basis and only to the extent such personnel are bound by confidentiality obligations substantially similar to, and at least as restrictive as, those set forth in this Agreement; provided that, all acts and omissions of such personnel shall be deemed to be acts and omissions of the Receiving Party, which shall be liable and responsible therefor.  The Receiving Party will protect the Confidential Information using the same degree of care that it uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care.

(c) Return of Confidential Information.  Except (i) as otherwise specifically provided in this Agreement, (ii) as reasonably necessary to exercise any of its rights or perform any of its obligations hereunder which survive termination, (iii) for one copy retained solely for records/compliance purposes, and (iv) for backup or similar copies in its computer systems (subject to its normal retention and destruction processes therefor), upon the termination or expiration of this Agreement, the Receiving Party will promptly return to the Disclosing Party, or destroy, the Disclosing Party’s Confidential Information. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.

(d) Permitted Disclosure.  The above non-disclosure obligations shall not prohibit the Receiving Party from disclosing Confidential Information of the Disclosing Party to the extent it is required to do so by applicable law or regulation, or a valid order of a court or other governmental body having jurisdiction; provided that the Receiving Party gives the Disclosing Party reasonable prior written notice of such disclosure, to the extent permitted by applicable law and regulation and otherwise practicable, and uses reasonable efforts, at the Disclosing Party’s expense, to obtain, or to assist the Disclosing Party in contesting the disclosure or obtaining a protective order limiting further disclosure or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.  The Receiving Party shall only disclose that portion of the Confidential Information as it is advised by its legal counsel it is legally required to disclose.  The Confidential Information shall otherwise remain subject to the terms of this Agreement.

(e) Confidentiality of Agreement.  Customer will not disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law; (b) pursuant to a mutually agreed to press release; or (c) in connection with a proposed merger, financing, or sale of Customer’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to Overjet).

(f) Duration.  The parties’ above obligations under this Section 9 shall continue during the Term of the Agreement and thereafter.

Section 10. Representations and Warranties

  1. General Representations and Warranties.  Each party will comply with all federal, provincial, and local laws, ordinances, regulations and orders with respect to its performance of, or other activities under, this Agreement. Each party hereby represents and warrants to the other party that: (i) it is a corporation, company or other entity (as applicable) duly organized, validly existing and in good standing in its jurisdiction of organization; (ii) such party’s execution, delivery and performance of this Agreement have been duly and validly authorized by all necessary organizational action; (iii) the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such Party enforceable against such party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; and (iv) its execution, delivery and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such party is subject.

  1. Overjet Limited Warranty.  Overjet further represents and warrants, for Customer’s benefit only, that the Service will include the functionality set forth in the Documentation.  Customer’s sole remedy, and Overjet’s exclusive liability, for Overjet’s breach of the warranty will be, at no charge to Customer, for Overjet to use commercially reasonable efforts to correct the reported non-conformity, or if Overjet determines such remedy to be impracticable, either party may terminate the affected Order Form and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for the unused remainder of the Subscription Term following the termination date. The limited warranty set forth in this Section 10(b) will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the nonconformity was caused by use of the Service other than in accordance with this Agreement and the Documentation, Customer’s or its Users’ acts or omissions, or any Customer Data or interoperability of Customer infrastructure, Customer Data or Third Party Platforms, or (iii) to Trial Subscriptions or Beta Versions.

Section 11. Indemnification 

(a) Overjet Indemnification.  Overjet shall defend any third party claim, demand, action or proceeding (“Claim”) brought against Customer on grounds that the Service (as provided by Overjet to Customer hereunder) infringes a third party’s US or Canadian patent, copyright or trade secret, and shall indemnify and hold harmless Customer against all damages and costs finally awarded against Customer by a court of competent jurisdiction with respect to any such Claim or agreed to in settlement by Overjet with respect to any such Claim.  If the Service becomes, or in Overjet’s opinion is likely to become, the subject of a valid claim of infringement of a third party’s US or Canadian patent, copyright or trade secret, Overjet shall have the right, at its option and expense, to (i) obtain for Customer a license permitting the continued use of the Service, (ii) replace or modify the Service so that it becomes non-infringing without loss of core functionality, or (iii) require that Customer terminate its use of the Service (in which case, Overjet shall refund to Customer any prepaid recurring fees for the Service paid under the affected Order Forms for the unused remainder of the Subscription Term following the termination date. Overjet has no indemnification obligation under this paragraph with respect to any Claims to the extent arising out of or relating to (i) any Customer Data or Results, any Confidential Information of Customer, or any infringement or violation of third party rights by the foregoing, (ii) any modification or alteration of the Service, or combination or use of the Service with any software, hardware, data, or other technology not developed by Overjet, where such infringement would not have occurred but for such modification, alteration, combination or use, (iii) use of the Service in a manner not permitted and contemplated by this Agreement and the Documentation, (iv) Overjet’s compliance with Customer’s designs, specifications, requests or instructions, (v) Customer’s breach of this Agreement, (vi) Claims that do not allege with specificity that the Service is the basis of the Claim; (vii) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; (viii) if Customer settles or makes any admissions with respect to a claim without Overjet’s prior written consent; or (ix) an allegation made against Customer prior to Customer entering into this Agreement or any allegation based upon any action by Customer prior to entering into this Agreement. THIS SECTION 11(a) SETS FORTH OVERJET’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.

(b) By Customer.  Customer shall defend Overjet and its affiliates and their respective employees, officers, directors from any Claims, and shall indemnify and hold harmless Overjet against all damages and costs finally awarded against Overjet by a court of competent jurisdiction with respect to any such Claim or agreed to in settlement by Customer with respect to any such Claim, which Claims arise out of or relate to (i) Customer’s or any User’s use of the Service not in accordance with the terms of this Agreement or the Documentation, (ii) the Customer Data and/or Customer Confidential Information, including without limitation any claim that any of the foregoing, in whole or in part, infringe, violate or misappropriate rights of, or has otherwise harmed, a third party, or (iii) any allegation that Customer or its Users has caused any death, personal injury or damage to tangible personal property. 

(c) Process.  The indemnification obligations above in this Section 11 are conditioned upon the indemnified party (the “Indemnitee”) (i) promptly notifying the indemnifying party (the “Indemnitor”) of the Claim; provided, that any failure to promptly notify the Indemnitor shall not relive the indemnifying party of its obligations except to the extent it was unduly prejudiced; (ii) giving Indemnitor full authority, information and assistance to defend such Claim; and (iii) giving the Indemnitor the right to assume sole control of the defense and compromise or settlement of the Claim; provided, that any settlement shall fully release the Indemnitee from liability and shall not impose any obligations or restrictions on the Indemnitee without the Indemnitee’s prior written consent and provided that if the Indemnitor fails to promptly assume the defense of the Claim, the Indemnitee may do so at the Indemnitee’s sole cost and expense. The Indemnitee will have the right to participate in the defense and settlement of a claim at the Indemnitee’s expense.

 

Section 12. Governing Law; Jurisdiction; Jury Trial Waiver

This Agreement and any dispute arising hereunder or related hereto will be governed in all respects by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts, without regard to any rules governing conflicts of laws. The parties hereby irrevocably agree to submit to the exclusive jurisdiction of the federal and state courts located in the Commonwealth of Massachusetts for any dispute arising under or related to this Agreement; provided that this shall not prohibit Overjet from seeking an injunction or other equitable relief relating to any breach or threatened breach of this Agreement in any court of competent jurisdiction. The parties irrevocably waive any right to a trial by jury. The parties agree that each may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.  

Section 13. Assignment 

Neither party may assign or otherwise transfer this Agreement, in whole or in part, by operation of law or otherwise, without the other party's prior written consent; provided, however that this Agreement may be assigned by Overjet without Customer’s consent to any successor to Overjet’s business, whether by merger, reorganization, change of control, asset sale, stock sale or otherwise.  In addition, Overjet may subcontract its performance hereunder in accordance with Section 14(f) below.  Any assignment or other transfer in violation of the first sentence above shall be void and have no force or effect.  All the terms and provisions of this Agreement will be binding upon and inure to the benefit of and be enforced by the parties hereto and their respective successors and permitted assigns.

Section 14. Miscellaneous

(a) Entire Agreement.  This Agreement (including all Order Forms and the CSPA) constitutes the entire agreement between the parties as to its subject matter, and supersedes all other prior and contemporaneous agreements, proposals, statements and representations with respect thereto.  Customer acknowledges and agrees that its agreement is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by Overjet with respect to future functionality or features for the Service.  Any purchase order or similar document issued by Customer shall be for Customer’s internal administrative purposes only, and will not modify or supplement this Agreement, or otherwise have any force or effect on Overjet. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to entering into the Agreement, except as expressly stated in this Agreement.  Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into the Agreement (unless such untrue statement was made fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in this Agreement.  No supplement, modification, amendment, or waiver of any provision of this Agreement (or any Order Form or CSPA) shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted.  

(b) Changes; Waivers. Any changes, amendments, or modifications to this Agreement or any Order Form or CSPA shall not be binding on the parties unless mutually agreed to by the parties in writing.  No waiver of rights hereunder shall be effective unless in writing and signed by the waiving party.  No waiver of any right shall apply to any subsequent instance of such right, or to any other right hereunder.

(c) Specific Performance; Remedies.  The parties agree that money damages may be inadequate to compensate for the unique losses to be suffered in the event of a breach or threatened breach of the provisions regarding confidentiality or intellectual property herein, and that the non-breaching party will be entitled, in addition to any other remedy it may have under this Agreement or at law, to seek injunctive and other equitable relief, including specific performance of the terms of this Agreement, without the necessity of posting bond or other security.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

(d) Severability.  In the event any provision of this Agreement is held by a court to be invalid or unenforceable, the remaining provisions shall survive and be of full force and effect, and the invalid or unenforceable provision shall be replaced by a valid and enforceable provision most nearly effecting the purpose of the parties.

(e) Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party.  Only the parties to the Agreement may enforce it.

(f) Subcontractors. Overjet may use the services of its affiliates and its and its affiliates’ third party subcontractors and service providers and shall have the right to permit them to exercise the rights granted to Overjet hereunder in order to perform Overjet’s obligations and exercise Overjet’s rights under this Agreement, provided that Overjet remains responsible for (i) compliance of any such third parties with the terms of this Agreement and (ii) for the overall performance of this Agreement

(g) Export Controls. Customer shall comply with all export laws, restrictions, national security controls and regulations of Canada and the United States and other applicable foreign agency or authority and shall not export or re-export, or allow the export or re-export of, any information, technology or materials provided by Overjet hereunder, or any copy, portion or direct product thereof, in violation of any such restrictions, laws or regulations or, without all required licenses and proper authorizations, to Cuba, Iran, North Korea, Syria, Crimea Region of Ukraine or to any group D:1 or E:2 country (or any national of such country) specified in the then-current Supplement No. 1 to Part 740 of the U.S. export administration regulations (or any successor supplement or regulations).

(h) Interpretation; Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.

Section 15. Publicity

Customer agrees that Overjet may include the Customer’s name and logo in Overjet’s published lists referencing the customers of Overjet’s products and services and on Overjet’s website in its customer section. Customer agrees that Overjet may issue a joint press release announcing the relationship of the parties within 30 days following completion of any pilot period if Customer elects to subscribe to the Service upon completion of the pilot. Any such press release will be subject to review and approval of the Customer, which will not be unreasonably withheld or delayed. 

Section 16. Force Majeure

The failure to perform or delay in performance by either party hereunder (except for payment of any undisputed amounts when due) shall be excused to the extent caused by any circumstance, event, act, or force not resulting from the fault or negligence of the affected party, which is beyond the reasonable control of such party including, but not limited to:   strike, fire, explosions, earthquakes, extreme weather, flood, acts of God, riots, terrorism, war, pandemics, epidemics, economic sanction or embargo, governmental acts or orders or restrictions, denial of service attacks, failures of internet service, telecommunications or utilities providers, failures of service providers or suppliers (each, a “Force Majeure Event”).  The party whose performance is prevented or delayed by a Force Majeure Event shall provide prompt notice thereof to the other party. 

Section 17.   Notices

Notices shall be in writing and may be hand delivered, sent via courier  or sent via standard mail service to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by standard mail service, the fifth business day after such notice is deposited in the mail. In addition, Customer acknowledges and agrees that Overjet may provide notices to Customer via email to Customer’s email account on file with Overjet or through the Service and such notices will be deemed given when sent.

Section 18. Warranty Disclaimers and Limitations of Liability.  

(a) Warranty Disclaimers.  EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION 10, (I) THE SERVICE AND THE RESULTS ARE PROVIDED “AS-IS” AND OVERJET DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT THERETO, AND (II) OVERJET HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE SERVICE AND RESULTS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, AND OVERJET EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTY ARISING THROUGH COURSE OF PERFORMANCE OR USAGE OF TRADE. NEITHER OVERJET NOR ANY OVERJET EMPLOYEE, AFFILIATE, SUBSIDIARY, CONTRACTOR, REPRESENTATIVE, OR CONSULTANT, SHALL HAVE ANY RESPONSIBILITY TO CUSTOMER, CUSTOMER’S USERS WHO USE THE SERVICE, OR ANY OTHER PERSON, FIRM, CORPORATION OR ENTITY, FOR DIAGNOSIS, TREATMENT, OR MEDICAL PROCEDURES OR PRESCRIPTIONS FOR OR WITH RESPECT TO ANY PATIENT, OR OTHER PROVISION OF HEALTH CARE SERVICES. 

OVERJET DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, NOR DOES OVERJET WARRANT THAT THE RESULTS FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE. OVERJET DOES NOT WARRANT THAT OVERJET WILL REVIEW THE CUSTOMER DATA SUBMITTED TO THE SERVICE FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. OVERJET SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICE. OVERJET SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF OVERJET. OVERJET EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS THAT CUSTOMER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT CUSTOMER’S AND ITS USER’S USE OF AND ACCESS TO THE SERVICE IS IN ACCORDANCE WITH APPLICABLE LAW.  CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES AND CONDITIONS, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OVERJET’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, TERM, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICE AGAIN. 

Overjet is not engaged in the practice of dentistry, and the Service provided under this Agreement shall not be considered medical advice. Customer acknowledges that the Service and any Results are not standalone clinical decision tools. Analytics or Results produced by the Service are not intended to be medical advice or instructions for medical diagnosis, treatment or care of persons and are designed to be used in conjunction with other processes and procedures used by Customer or its Users to provide care to patients under the supervision of appropriate healthcare professionals. The Service and the Results and analytics derived from use of the Service are intended as a reference and a supplement to, and not a substitute for, the knowledge, expertise, skill and judgment of a licensed medical professionals and should not be used to diagnose, treat, cure or prevent medical conditions without supervision of licensed medical professionals and under no circumstances represent Overjet’s  recommendations. Customer acknowledges and agrees that the Service shall not be used in connection with rendering patient care by anyone other than an appropriately licensed medical professional exercising professional judgment. 

No Overjet reseller, agent, or employee is authorized to make any modification, extension, or addition to the warranty set forth in Section 10 or this disclaimer. 

(b) Limitations of Liability. TO THE FULLEST EXTENT ALLOWED BY LAW, OVERJET SHALL IN NO EVENT BE LIABLE, REGARDLESS OF THE FORM OF ACTION, INCLUDING CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (WHICH MAY INCLUDE, WITHOUT LIMITATION, LOST PROFITS, REVENUE OR BUSINESS, LOSS OR CORRUPTION OF DATA, LOSS OF USE OR COSTS TO PROCURE SUBSITUTE GOODS OR SERVICES) ARISING UNDER OR RELATED TO THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR OVERJET’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, IN NO EVENT SHALL OVERJET’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF RECURRING FEES ACTUALLY PAID TO OVERJET BY CUSTOMER (OR ITS AUTHORIZED RESELLER), UNDER THE APPLICABLE ORDER FORM WITH RESPECT TO WHICH THE CLAIM AROSE, IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.  THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THAT ANY PROVISION OF THIS AGREEMENT FAILS ITS ESSENTIAL PURPOSE.  THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

(c) Nature of Claims; Failure of Essential Purpose; Allocation of Risk. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other party or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement. The parties agree that the disclaimers and limitations specified in this Agreement apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. Each party acknowledges that the fees payable by Customer to Overjet reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without the limitations on its liability set forth in this Section 18.

Section 19. English Language.  

The Parties confirm that it is their wish that this Agreement, as well as all other documents relating hereto, including all notices, be drawn up in the English language only. Les Parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’yattac