Labnext License and Services Agreement

Client shall (i) grant HS1 reasonable access to Client's systems as reasonably necessary to perform the obligations hereunder, (ii) cooperate with HS1 in providing the services hereunder; and (iii) pay the entire balance of the fees due from time to time hereunder.

HS1 agrees to provide the Labnext and DDX Services to Client at the initial fees indicated on the front side of this document and Client agrees to pay HS1 for the Labnext and DDX 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 HS1) directly applicable to the Labnext and DDX Services. All fees due under this Agreement shall be payable by Client within 30 days after the date of invoice. 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 HS1 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.

HS1 may terminate this Agreement at any time. Upon termination, HS1 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.

The parties agree that this Agreement and other materials provided by HS1 to Client are the confidential property of HS1 ("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 HS1 has access on behalf of Client, the parties agree to, where applicable, comply with the provisions of the (a) Business Associate Agreement, or (b) Information Manager Agreement, included in Exhibit A, which is expressly incorporated herein by reference.

1. Data.

   HS1 utilizes commercially reasonably measures to protect the security and integrity of customer and patient data. These measures may include the implementation of structural, technical, or operational controls to limit flows of sensitive or protected data between organizations in order to enhance security and to reduce the potential for conflicts of interest. Without limiting HS1's obligations hereunder with respect to confidential data, the parties agree that HS1 may use, retain, and combine De-identified Data (i) for the provision of DDX Services, (ii) for preparing commercially available, normative benchmarking data and analytics; and (iii) for other business purposes to the extent permitted by applicable laws, rules, regulations, and contractual obligations. The parties hereby acknowledge and agree that De-Identified Data is not confidential data under this Agreement. For purposes of this Agreement, "De-identified Data" means data that has been aggregated, anonymized, or de-identified such that the data cannot uniquely identify, either explicitly or implicitly, Client or any individual. HS1 supports the interoperability of data to optimize health outcomes and improve patient care to the extent required or permitted by law. The parties acknowledge and agree that HS1 may disclose patient identifiable data to the respective patient and to such third parties as the patient may direct.

2. Indemnification.

   Client agrees to indemnify and hold harmless HS1, 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) HS1 shall give Client reasonable 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, and (iii) HS1 shall have an opportunity to assume control of such defense, and shall not be responsible for any settlement that HS1 does not approve in writing.

3. LIMITED WARRANTY AND DISCLAIMER.

   HS1 MAKES NO REPRESENTATIONS OR WARRANTIES TO ANY PERSON WITH RESPECT TO THE LABNEXT AND DDX SERVICES AND DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO SUCH SERVICES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, HS1 DOES NOT WARRANT, GUARANTEE OR MAKE REPRESENTATIONS REGARDING SUCH SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE OR THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. WITHOUT LIMITING THE FOREGOING, HS1 SPECIFICALLY DISCLAIMS ALL EXPRESS WARRANTIES NOT STATED HEREIN. NO HS1 AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY EXPANSION, MODIFICATION OR ADDITION TO THIS LIMITATION AND EXCLUSION OF WARRANTIES IN THIS AGREEMENT. THE LABNEXT AND DDX SERVICES ARE PROVIDED "AS IS" AND CLIENT'S USE OF THE SERVICES INCLUDING CLIENT'S PROVISION OF ACCESS TO THE SERVICES TO ITS CUSTOMERS IS AT ITS OWN RISK.

4. EXPRESS DISCLAIMER OF THIRD PARTY ACTIVITIES.

   PROVISION OF THE LABNEXT AND DDX 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 HS1 ("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). HS1 DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THIRD PARTY SERVICES AND SUCH EVENTS.

5. LIMITATION OF LIABILITY.

   IN NO EVENT SHALL HS1 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 AND DDX 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 CONFIDENTIALITY OR INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY SET FORTH HEREIN. HS1 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 HS1 HEREUNDER DURING THE PRECEDING THREE-MONTH PERIOD. Due to the nature of the Labnext and DDX Services being provided by HS1, it is agreed that in no event shall HS1 be liable for any claim, loss, correction, damage or expense caused by HS1's performance or failure to perform hereunder, which is not reported to HS1 by Client within thirty (30) days of such performance or failure to perform.

6. 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 HS1 under this Agreement shall be sent to Henry Schein One, LLC, 1220 South 630 East suite 100, American Fork, UT 84003 Attn: Legal Department, email: legal@henryscheinone.com with a copy to Henry Schein One, LLC, 909 N. Pacific Coast Highway, 11th Floor, El Segundo, CA 90245 Attn: HS1 General Counsel.

7. Third Party.

   HS1 may be required to send Client data, including health data, to a third party as necessary to provide the Services under this Agreement.

8. Data Privacy Laws.

   Both parties agree to comply with all applicable Data Privacy Laws in performing its obligations under this Agreement.

9. 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.

10. Assignment.

    Client shall not have the right to assign (by operation of law or otherwise) this Agreement without the prior written consent of HS1. 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.

11. Governing Law.

    This Agreement shall be governed by the laws of the State of Utah, 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 Utah 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.

12. Force Majeure.

    HS1 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, pandemics, quarantines, 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 HS1's control, whether or not similar to the foregoing.

13. 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.

14. Entire Agreement; Amendments.

    This Agreement, including the Labnext and DDX Terms of Use for the Labnext and DDX Website available at www.labnext.net and www.ddxdental.com (as such terms may be updated by HS1 from time to time) and the Business Associate Agreement, or Information Manager Agreement, as applicable, included in Exhibit A constitutes the entire agreement between Client and HS1 regarding the Labnext and DDX Services. All prior or contemporaneous agreements, proposals, understandings and communications between or involving Client and HS1, whether oral or written, regarding the Labnext and DDX 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 and DDX Services covered by this Agreement and HS1 shall not be bound by any provisions of any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless HS1 specifically agrees to the provision in writing. Except for the Terms of Use for the Labnext and DDX Websites, this Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties.

15. 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.

16. 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.

17. No Publicity.

    HS1 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 HS1 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.

18. 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.

1. Business Associate Agreement (BAA)

   Click here to review the Henry Schein One Business Associate Agreement

2. Information Manager Agreement (IMA)

   Click here to review the Henry Schein One Information Manager Agreement