Terms of Service

Service Agreement

This service agreement (“Agreement”) is made between Totalxray, L.L.C. (“Provider”) and the customer identified as the (“Customer”) as of the date of signing this Agreement. By clicking “I agree,” signing your Order Form for the Services, or using the Services, you agree to the Agreement as the Customer.

If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not sign up for the Services.

Services

Provider agrees to provide Customer with access to its software platform (“Service”) for the term and fees specified in the order form attached to this Agreement (“Order Form”). The Service includes the features and functionality described in the documentation available on Provider’s website (“Documentation”). Certain Services, or portions thereof, may be subject to additional terms, including third party terms and conditions, that are specific to the particular services and are set forth in the Service-Specific Terms. By accessing or using Services covered by any Service-Specific Terms, you agree to the applicable Service-Specific Terms. If there is a conflict between these Terms and the Service-Specific Terms, the Service-Specific Terms will control with respect to the applicable Services or portions thereof.

Provision.

The Agreement governs access to, and use of the Services, and any associated Software. Customer may access and use the Services in accordance with the Agreement.

Software

1. Open Source. If any component of the Software is offered under an open source license, Provider will make the license available to Customer and to the extent the provisions of that license grant Customer additional rights, those provisions will expressly override some terms of the Agreement solely with respect to that component of the Software.
2. Add-Ons. Customer may purchase Add-Ons for use in conjunction with certain Services. Add-Ons may not be purchased on a standalone basis and must be purchased in connection with a new or existing subscription to the applicable Services for which they are offered. Add-Ons may be subject to additional Service-Specific Terms. Without limiting the foregoing.

Subscriptions

Overview. When you purchase a totalxray subscription, you are committing to a one-year term agreement. Your subscription will be automatically renewed for another annual term agreement. To cancel the subscription or remove the auto-renewal feature, the client can contact totalxray with a thirty (30) day written/email notice prior to the renewal date using publicly published contact information and the subscription will be cancelled. If the client cancels the subscription before the end of the current one-year agreement, the balance of the subscription will be charged. In addition, a $500.00 USD charge will be charged to the client for each unreturned/missing/broken ezPhantom hardware unit.

Services Term. Unless otherwise set forth on the Order Form, the Services are sold on a subscription basis. Provider will deliver the Services to Customer for the Services Term. Unless the parties agree otherwise in writing, any increases in quantities of Services purchased during any Services Term will have a prorated term ending on the last day of the pre-existing Services Term.

Additional Subscriptions.

The Services may be configured to allow Administrators or End Users to purchase additional subscriptions or quantities of Services or Add-Ons. Customer is responsible for understanding the settings and controls of the Services for purchasing additional Services. Totalxray LLC will charge Customer the applicable pro-rated amount for additional Services or Add-Ons for the remainder of the then-current Services Term based on Customer’s then-current price unless otherwise set forth on the Order Form.

Modifications. Provider may update the Services from time to time. If TotalXray LLC changes the Services in a manner that materially reduces their functionality, TotalXray LLC will notify Customer at the email address associated with the account, and Customer may provide notice within thirty days of the change to terminate the Agreement. This termination right will not apply to updates made to features provided on a beta or evaluation basis. Without limiting the foregoing, from time to time, Provider may add additional features to enhance the user experience of the Services at no additional charge. However, these free features may be withdrawn without further notices.

Automatic Renewals. Unless otherwise specified on the Order Form, following the Initial Services Term or a Renewal Term, Customer’s subscription to the Services will automatically renew for a Renewal Term at the then-current quantity or subscription tier or subscription items. If Customer has purchased the Services online via a self-serve mechanism and provided a payment method to Provider for recurring charges, Customer may elect to terminate the Agreement via the Admin Console prior to the day a Renewal Term begins.

Payment.

Customer will pay Totalxray LLC invoices on the payment interval set forth in the Order Form. Totalxray LLC suspend or terminate the Services if Fees are past due.

Taxes- Fees are exclusive of taxes and Customer is responsible for all Taxes. Provider will charge Taxes when required to do so. If Customer provides Totalxray LLC with a valid exemption certificate, Provider will not collect the taxes covered by that certificate.

No Refunds– Subscription and usage or overage Fees are non-refundable and non-creditable, except where required by law.

Support

Provider agrees to provide Customer with technical support for the Service. Support may include email, phone, or online chat assistance, as well as access to online resources such as FAQs, tutorials, and user guides. Provider will use reasonable efforts to respond to Customer’s support requests within a 24 hour response time.

Generally and No Warranty Disclaimer

THE SERVICES, SOFTWARE, AND ANY RELATED DOCUMENTATION ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, TOTALXRAY LLC AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. TOTAYXRAY LLC MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. TOTALXRAY LLC WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, CUSTOMER DATA, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-TOALXRAY LLC SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS). CUSTOMER IS RESPONSIBLE FOR USING THE SERVICES OR SOFTWARE IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN AND BACKING UP ANY STORED DATA ON THE SERVICES.

Data Privacy and Security

Provider agrees to comply with all applicable laws and regulations regarding data privacy and security, including but not limited to the General Data Protection Regulation (GDPR), and any other relevant laws in the jurisdictions where the Service is provided or used.

Provider agrees to implement and maintain appropriate technical and organizational measures to protect Customer Data from unauthorized access, use, disclosure, or loss, in accordance with the industry standards.

Customer may access, correct, update, delete, or print their Customer Data at any time through the Service or by contacting Provider. Provider will respond to Customer’s requests within a reasonable time and in accordance with the law and Provider may charge applicable fees for this service.

In the event of a data breach that affects Customer Data, Provider will notify Customer as soon as possible and take all reasonable steps to mitigate the impact and prevent further incidents. Provider will also cooperate with Customer and any relevant authorities to investigate and resolve the data breach.

Customer Data- Customer retains all rights, title, and interest in and to the data that Customer uploads, stores, processes, or generates through the Service (“Customer Data”). Customer grants Provider a non-exclusive, royalty-free, worldwide license to use, copy, store, transmit, and display Customer Data solely for the purpose of providing the Service to Customer. Provider agrees to maintain appropriate technical and organizational measures to protect Customer Data from unauthorized access or use.

Patient Data- Customer agrees to not record, upload, use, transfer, or retain any patient data on Totalxray LLC’s software platform.

Aggregate/Anonymous Data- Customer agrees that Provider will have the right to generate aggregate and anonymous data based on End Users’ use of the Services and this data is owned by Totalxray LLC. Totalxray LLC may use this data for its business purposes during or after the term of this Agreement (including without limitation to develop and improve Provider’s products and services and to create and distribute reports and other materials). For clarity, Totalxray LLC will not disclose any aggregate or anonymous data externally in a manner that could reasonably identify Customer or its End Users. Customer is not responsible for Provider’s use of aggregate or anonymous data.

Limitation of Liability

In no event will Provider be liable for any indirect, incidental, consequential, special, or exemplary damages arising out of or in connection with this Agreement or the use of the Service, including but not limited to loss of profits, loss of data, loss of goodwill, or business interruption, even if Provider has been advised of the possibility of such damages. Provider’s total liability under this Agreement will not exceed the amount paid by Customer for the Service in the 12 months preceding the claim.

No Class Actions

You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed.

Indemnification

Customer agrees to indemnify, defend, and hold harmless Provider and its officers, directors, employees, agents, and affiliates from and against any and all claims, liabilities, damages, costs, and expenses (including reasonable attorney fees) arising out of or relating to Customer’s use of the Service, Customer Data, or breach of this Agreement.

Disputes

Informal Resolution. Before filing a claim, each Party agrees to try to resolve the dispute by contacting the other Party.

Arbitration. Customer and Totalxray LLC agree to resolve any claims relating to the Agreement or the Services through final and binding arbitration, except as set forth below. This includes disputes arising out of or relating to the interpretation or application of this “Arbitration” subsection, including its scope, enforceability, revocability, or validity. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Houston (TX), or any other location both parties agree to in writing. The arbitrator may award relief only individually and only to the extent necessary to redress Customer’s or Dropbox’s individual claim(s); the arbitrator may not award relief on behalf of others or the general public.

Governing Law.

THE AGREEMENT WILL BE GOVERNED BY TEXAS LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.

Severability.

If any part of this “Disputes” section is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow class or representative arbitration, this “Disputes” section will be unenforceable in its entirety. If you are found to have a non-waivable right to bring a particular claim or to request a particular form of relief that the arbitrator lacks authority to redress or award, then only that respective claim or request for relief may be brought in court, and you and we agree that litigation of any such claim or request for relief shall be stayed pending the resolution of any individual claim(s) or request(s) for relief in arbitration.

Notice.

Notices must be sent via email, first class, airmail, or overnight courier to the stated address on the Totalxray Website contact us section, and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent.

Assignment.

Customer may not assign or transfer the Agreement or any rights or obligations under the Agreement without the written consent of Totalxray LLC, except that Customer may assign the Agreement to the surviving entity in connection with a merger, acquisition, or sale of all or substantially all of its assets by providing written notice to Provider. Totalxray LLC may not assign the Agreement without providing notice to Customer, except Totalxray LLC may assign the Agreement or any rights or obligations under the Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.

No Agency.

Totalxray LLC and Customer are not legal partners or agents, but are independent contractors.

Force Majeure.

Except for payment obligations, neither Provider nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the Party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).

No Third-Party Beneficiaries.

There are no third-party beneficiaries to the Agreement. Without limiting this section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under the Agreement.

Termination

This Agreement will commence on the date of signing this Agreement and will continue until terminated by either party as provided herein.

Total Xray LLC reserves the right, at its discretion, to terminate this agreement at any time, for any reason, with or without notice.

Upon termination of this Agreement, Provider will delete all Customer Data from its systems within 30 days of termination, unless required by law to retain it longer. The following sections will survive termination of this Agreement: Subscriptions, Customer Data, No Warranty Disclaimer, Limitation of Liability, Indemnification, and Entire Agreement.

Miscellaneous

Interpretation of Conflicting Terms. If there is a conflict between the documents that make up the Agreement, the documents will control in the following order: the invoice, Order Form, the Service Agreement. The terms and conditions of the Agreement will be considered Confidential Information of Totalxray LLC. Customer agrees that any terms and conditions on a Customer purchase order will not apply to the Agreement and are null and void. If End Users are required to click through terms of service in order to use the Services, those click through terms are subordinate to this Agreement and the Agreement will control if there is a conflict.

Entire Agreement

The Agreement supersedes any prior agreements or understandings between the Parties, and constitutes the entire agreement between the Parties related to this subject matter.

ACCEPTABLE USE POLICY (separate agreement)

This acceptable use policy (“Policy”) applies to all users of the Totalxray software (“Software”) provided by Totalxray L.L.C.. (“Totalxray”, “we”, “us”, or “our”). By using the Software, you agree to comply with this Policy and any other terms and conditions that may apply to your use of the Software.

The Software is intended to assist dental professionals in performing and storing xray compliance correspondence. The Software is not intended to diagnose, treat, or prevent any disease or condition, nor to provide medical advice or guidance. You are solely responsible for the quality and accuracy of the x-ray images and any interpretations or decisions based on them.