License Agreement

  1. This Agreement dated Sun, 08 Dec 2019 12:40:11 -0700 is by and between you ("Client") and Henry Schein Practice Solutions, Inc. ("HSPS").
  2. HSPS will provide Client with access to the Labnext technology platform, which enables participating practices and laboratories to communicate digitally (the "Labnext Services"), subject to the terms and conditions of the License Agreement.
  3. Note: The Labnext Annual Access Fee entitles you to Labnext application enhancements and access to the Labnext Service for a one-year period (which automatically for successive one-year periods unless cancelled in writing 30 days prior to the expiration of the initial or any renewal period). While HSPS intends to provide enhancements for the Labnext application, the timing and content of any enhancements cannot be guaranteed.
  4. Certified Labnext Training is designed to help you and your staff understand and utilize Labnext. HSPS's experience is that offices which complete training see accelerated profit and increased productivity. Accordingly, HSPS recommends that Client purchase at least one day of training. Training is conducted at Client's lab by a Certified Labnext Trainer. HSPS discourages training conducted by persons who are not Certified Labnext Trainers. Certified Labnext Trainers are independent contractors. HSPS warrants only that the Trainer met HSPS's requirements to be, and has been, certified to teach. Pricing does not include travel expenses.
  5. I have read the agreement in its entirety, including the Fees and Payment Terms, and I understand and accept all of the provisions stated herein. I personally and unconditionally guarantee payment of all debts incurred for products, services and other fees rendered by Henry Schein Practice Solutions, Inc. I have the authority to make purchases for Client.
    1. Client Obligations. Client shall (i) grant HSPS reasonable access to Client's systems as reasonably necessary to perform the obligations hereunder, (ii) cooperate with HSPS in providing the services hereunder; and (iii) pay the entire balance of the fees due from time to time hereunder.
    2. Fees and Payment Terms. HSPS agrees to provide the Labnext Services to Client at the initial fees indicated and Client agrees to pay HSPS for the Labnext Services in accordance with the terms of this Agreement. All fees are exclusive of any state, local and other taxes and charges (other than income or franchise taxes payable by HSPS) directly applicable to the Labnext Services. All fees due under this Agreement shall be payable by Client within 30 days after sign up. Fees remitted after such 30-day period shall bear interest at 1.5% per month or, if less, the maximum rate permitted by law. Fees are subject to change at the sole discretion of HSPS at any time. Such change in fees shall become effective for Client on the earlier of (i) the 60th day after notice to Client of a change in fees or (ii) at the beginning of the succeeding Renewal Term; provided that Client shall have the right following notice of the change in fees but prior to the effective date of such change to terminate this Agreement. All amounts are expressed in U.S. dollars and all payments shall be made in U.S. dollars.
    3. Termination. HSPS may terminate this Agreement at any time in the event that Client breaches any material provision of this Agreement or any term of the Labnext Website Terms of Use (which may be updated by HSPS from time to time and is expressly incorporated herein by reference), and fails to cure such breach within 30 days after HSPS delivers notice to Client or, in the case of a breach of Client\'s payment obligations, within 10 days after delivery of such notice. Upon termination, HSPS shall invoice Client for all fees due for the entire Term, and Client shall pay such amount immediately upon receipt of invoice. In the event of any termination or cancellation of this Agreement, this section and Sections 4 and 5 shall survive.
    4. Confidential Information. The parties agree that this Agreement and other materials of a confidential and proprietary nature provided by HSPS to Client are the confidential property of HSPS ("Confidential Information"), and that any confidential business, technical, financial or other information disclosed by one party to the other pursuant to this Agreement is the Confidential Information of the disclosing party. Each party agrees that it shall not use the Confidential Information of the other party for any purpose not expressly permitted by this Agreement, and that it shall hold in confidence and shall not disclose to any third party such Confidential Information, and shall similarly bind its personnel. A party shall not be obligated under this section with respect to information that it can document: (i) is or has become readily publicly available without restriction through no fault of such party or its personnel, (ii) is received, without restriction, from a third party lawfully in possession of such information and lawfully empowered to disclose such information, or (iii) was rightfully in such party\'s possession without restriction prior to its disclosure by the other party. Without limiting the other provisions of this section with respect to individually identifiable health information to which HSPS has access on behalf of Client, HSPS agrees to comply with the provisions of the HIPAA Business Associate Agreement, if any, between HSPS and Client, which is expressly incorporated herein by reference.
    5. Other Matters.
      1. Indemnification. Client agrees to indemnify and hold harmless HSPS, Henry Schein, Inc. and their respective officers, employees and agents (together, the "Included Indemnitees") from and against all claims, loss, damage, liability and lawsuits (including reasonable attorneys\' fees) arising from any breach by Client of its covenants in this Agreement, provided that (i) HSPS shall give Client prompt written notice of such claim, loss, expense, damage, liability or lawsuit, (ii) the Included Indemnitees shall reasonably cooperate with Client in the defense and/or settlement thereof, (iii) HSPS shall have an opportunity to assume control of such defense, and shall not be responsible for any settlement that HSPS does not approve in writing.
      2. LIMITED WARRANTY AND DISCLAIMER. HSPS MAKES NO REPRESENTATIONS OR WARRANTIES TO ANY PERSON WITH RESPECT TO THE LABNEXT SERVICES AND DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO SUCH LABNEXT SERVICES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, HSPS DOES NOT WARRANT, GUARANTEE OR MAKE REPRESENTATIONS REGARDING SUCH LABNEXT SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE OR THAT THE LABNEXT SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. WITHOUT LIMITING THE FOREGOING, HSPS SPECIFICALLY DISCLAIMS ALL EXPRESS WARRANTIES NOT STATED HEREIN. NO HSPS AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY EXPANSION, MODIFICATION OR ADDITION TO THIS LIMITATION AND EXCLUSION OF WARRANTIES IN THESE TERMS AND CONDITIONS. THE LABNEXT SERVICES ARE PROVIDED "AS IS" AND CLIENT\'S USE OF THE LABNEXT SERVICES INCLUDING CLIENT\'S PROVISION OF ACCESS TO THE LABNEXT SERVICES TO ITS CUSTOMERS IS AT ITS OWN RISK.
      3. EXPRESS DISCLAIMER OF THIRD PARTY ACTIVITIES. PROVISION OF THE LABNEXT SERVICES MAY REQUIRE THE USE OF SERVICES AND FACILITIES OF THIRD PARTIES, INCLUDING FACILITIES USED IN THE TRANSMISSION OF DATA OVER, AND THE AVAILABILITY OF DATA ON, THE INTERNET, WHICH SERVICES AND FACILITIES ARE NOT UNDER THE CONTROL OF HSPS ("THIRD PARTY SERVICES"). AT TIMES, ACTIONS OR INACTIONS OF ENTITIES CONTROLLING SUCH THIRD PARTY SERVICES MAY DISRUPT OR PREVENT COMMUNICATIONS, INCLUDING OVER THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH HSPS WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE SUCH ACTIONS IT DEEMS APPROPRIATE TO AVOID AND REMEDY SUCH EVENTS, HSPS CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. HSPS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THIRD PARTY SERVICES AND SUCH EVENTS.
      4. LIMITATION OF LIABILITY. IN NO EVENT SHALL HSPS BE LIABLE TO CLIENT FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND LOSS OF GOODWILL, ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT OR THE LABNEXT SERVICES (OR ANY DUTY OF COMMON LAW, AND WHETHER OR NOT OCCASIONED BY THE NEGLIGENCE OF A PARTY OR ITS AFFILIATES), REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED THAT NOTHING IN THIS SECTION IS INTENDED TO, OR DOES, LIMIT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY SET FORTH HEREIN. HSPS SHALL NOT BE LIABLE UNDER THIS AGREEMENT, OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS, IN THE AGGREGATE, IN EXCESS OF THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO HSPS HEREUNDER DURING THE PRECEEDING THREE-MONTH PERIOD. Due to the nature of the Labnext Services being provided by HSPS it is agreed that in no event shall HSPS be liable for any claim, loss, correction, damage or expense caused by HSPS\'s performance or failure to perform hereunder, which is not reported to HSPS by Client within 30 days of such performance or failure to perform.
      5. Notices. Except as otherwise provided, all notices given under this Agreement shall be in writing and shall be deemed to have been duly given upon receipt if delivered by hand or facsimile transmission with receipt confirmed, three days after mailing by certified or registered mail, and one day after sending by overnight courier, to the parties\' respective address indicated on the signature page of this Agreement or such other address as a party specifies in writing to the other party. All notices given to HSPS under this Agreement shall be sent with a copy to Henry Schein, Inc., 135 Duryea Road, Melville, New York 11747, Attn: General Counsel, Fax (631) 843-5660.
      6. No Joint Venture. Nothing in this Agreement shall be construed to create, constitute, give effect to or otherwise imply a joint venture, partnership, agency or employment relationship of any kind between the parties. Neither party nor its respective representatives, employees or agents may make any representations or agreements that are binding upon the other party.
      7. Assignment. Client shall not have the right to assign (by operation of law or otherwise) this Agreement without the prior written consent of HSPS. Except as otherwise provided herein, this Agreement shall be binding on and inure to the benefit of the respective successors and permitted assigns of the parties.
      8. Governing Law. This Agreement shall be governed by the laws of the State of New York, without reference to conflict of laws principles. The parties irrevocably and exclusively submit to the jurisdiction of any state court located in the state and federal courts sitting in the Eastern and Southern Districts of New York or in the counties within those federal judicial districts for the purpose of any suit, action or proceeding arising out of this Agreement and hereby irrevocably waive the defense of an inconvenient forum to the maintenance of any such suit, action or proceeding.
      9. Force Majeure. HSPS shall have no liability for delays, failure in performance or damages (other than obligations regarding payment of money or confidentiality) due to: fire, explosion, lightning, pest damage, power surges or failures, strikes or Client or disputes, water, acts of God, the elements, war, civil disturbances, acts of military authorities or the public enemy, inability to secure raw material, transportation facilities, fuel or energy shortages, acts or omissions of communications carriers, or other causes beyond HSPS\'s control, whether or not similar to the foregoing.
      10. Remedies. Due to the fact that the disclosing party could not be adequately compensated by money damages in the event of the receiving party\'s breach of any of the confidentiality provisions of this Agreement, the disclosing party shall be entitled, in addition to any other right or available remedy, to an injunction or other equitable relief restraining such breach or any threatened breach.
      11. Entire Agreement; Amendments. This Agreement, including the Terms of Use for the Labnext Website (as such terms may be updated by HSPS from time to time) and the HIPAA Business Associate Agreement, if any, between HSPS and Client, each of which is incorporated herein by reference in its entirety, constitutes the entire agreement between Client and HSPS regarding the Labnext Services. All prior or contemporaneous agreements, proposals, understandings and communications between or involving Client and HSPS, whether oral or written, regarding the Labnext Services are superseded by this Agreement. The terms contained in this Agreement shall supersede any conflicting terms contained in any purchase order, invoice or other document used or submitted by either party in connection with the purchase of the Labnext Services covered by this Agreement and HSPS shall not be bound by any provisions of any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless HSPS specifically agrees to the provision in writing. Except for the Terms of Use for the Labnext Website, this Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties.
      12. No Waiver. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
      13. Severability. If any provision herein is otherwise held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
      14. No Publicity. HSPS shall be entitled to disclose and publicize, in the form of customer lists, marketing materials and otherwise, the identity of Client as a client of HSPS and display Client\'s logo on its web site. Neither party shall issue a general press release naming the other party or regarding the existence of this Agreement, without the prior written consent of the other party; provided, however, that either party may, without such consent, make any press release or other public announcement as required by law.
      15. Section Headings. The headings contained in this Agreement are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement.
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