Effective December 2020
Realtime Smile, LLC (“Realtime”) is a software company. Realtime owns and has developed a proprietary software communication system that connects potential patients interested in any form of dental health or the improvement of smiles with potential health care providers. This software utilizes communications solutions for customers, who are the health care providers. As such, customers of Realtime use this proprietary Realtime software as a tool to connect with potential patients or patients.
Realtime is compliant with federal and state laws pertaining to your privacy. Your name and e-mail address will be treated with the same care and privacy given your health records and will never be sold or leased by Realtime.
We will, and our Customers have agreed to, protect the privacy of your health information because it is the right thing to do. We will, and our Customers have agreed to, follow federal and state laws that govern your health information. We, and our Customers have agreed to, use your health information (and allow others to have it) only as permitted by federal and state laws. These laws give you certain rights regarding your health information.
We obtain and may hold data from you including your contact information, an audiovisual recording of you used to obtain services from a provider, the provider you may see using our system, and information used by the provider for treatment determinations. Should you wish to obtain data from us, you may do so. Should you wish to obtain data from your providers, you can get it directly from your provider (a Customer who uses our services). As such, you may (i) inspect and obtain a copy of this information from us, as long as we have that information, and through your provider, as allowed by law, usually within 30 days of your written request; (ii) request and receive a paper copy of our current Privacy Practices; (iii) require us to communicate with you using an alternate address or phone number; (iv) request in writing that restrictions be placed on how your health information is used or shared for treatment or other purposes; (v) request an accounting of when your identifiable health information is shared outside of Realtime for a purpose other than treatment or payment; (vi) receive notice if we or our business associates have breached the confidentiality of your health information; (vii) report a privacy concern and be assured that we will investigate your concern thoroughly, support you appropriately, and not retaliate against you in any way (you may report any privacy concerns to our company directly, or to the Office for Civil Rights, U.S. Department of Health and Human Services, Denver Office); or (viii) request in writing that your health information be amended if you think there is an error.
We collect the e-mail addresses of those who communicate with us via e-mail, aggregate information on what pages consumers access or visit, and information volunteered by the consumer (such as survey information and/or site registrations). The information we collect is used to improve the content of our Web pages and the quality of our service, and is not shared with or sold to other organizations for commercial purposes, except to provide products or services you’ve requested, when we have your permission. Such exceptions apply only to Realtime clients and would be shared only with Realtime partners handling Data Management or Accessibility options.
Additionally, your information may be shared under the following circumstances: It is necessary to provide information in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of Terms of Service of the specific application, or as otherwise required by law.
We do not collect personally identifiable information from our visitors other than what is supplied to us on a voluntary basis. When you register voluntarily, we ask for information such as your name, email address, etc.
Realtime uses collected information for the following general purposes: products and services provision, providing audiovisual recordings to providers, billing, identification and authentication, services improvement, contact, and research. Realtime shares your information with potential providers as approved by you, but it does not share your personal information with non-agent third parties, unless explicitly approved by you. If you use the Site without registration, the only information we collect will be non-personal information related to your IP address, web browser and operating system.
AGREEMENT & TERMS & CONDITIONS for REALTIME SMILE, LLC
These Terms and Conditions constitute the agreement between Realtime Smile, LLC (“Realtime” or “Provider”) and the Customer, as defined herein, (“Agreement”), are effective as of December 1, 2020 (“Effective Date”), and are as follows:
- Service. Realtime is a software company. Realtime owns and has developed a proprietary software communication system that connects potential patients interested in any form of dental health or the improvement of smiles with potential health care providers. This software utilizes communications solutions for customers, who are the health care providers. As such, customers of Realtime use this proprietary Realtime software as a tool to connect with potential patients. This Agreement dated as of the Effective Date, governs the use by Customer of the following services provided by Realtime: (a) use of Realtime’s proprietary software communications system at the monthly charge agreed upon by the Customer (“SaaS” of Software as a Service); and (b) all related technology that is or may be used by Customer in connection with SaaS. All of these services, including SaaS, are collectively described in this Agreement as “Services”.
- Users. Only potential patients or patients of a paying Customer may utilize the Services. Customer must ensure that any persons that it allows to use the Services (which shall only be patients or potential patients of the paying Customer) agree to terms and conditions that are essentially and substantially the same as these, including limitations of liability, and absence of warranties and which terms and conditions are in substantially the same form as those attached hereto as Exhibit A.
- Conditions for Use and Provision of Services. The Services are provided subject to the condition that they will be used by Customer only for lawful purposes and Customer hereby represents and warrants that it shall not (i) use the Services in any manner that would result in a violation of any applicable law, rule or regulation, (ii) permit or authorize third parties to use or access the Services except potential patients of Customer or patients of Customer who have agreed to be bound to terms and conditions in substantially the same form as those attached hereto as Exhibit A, (iii) circumvent or disable any security or other technological features or measures of the Services, (iv) use or provide any data or information obtained through or via the Services to or for any third party; (v) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble, appropriate, misappropriate or otherwise attempt to derive source code associated with the Services; (vi) use, evaluate or view the Services for the purpose of designing, copying, mimicking or creating any environment, program, or infrastructure, which performs functions similar to the Services; and, (vii) attempt to gain unauthorized access to the Services or its related systems, platform, or networks. Realtime reserves the right to discontinue service if in the opinion of Realtime the product is being used in an unacceptable or inappropriate manner.
- The parties acknowledge and agree that this Agreement does not create any agency, partnership, joint venture or enterprise, between the parties or any respective officer, director, employee, contractor, agent or representative thereof, as a partner, employee or agent of the other Party for any purpose whatsoever. Neither party has the right or authority to bind, or attempt to bind, the other party to any contract or the performance of any obligation, other than the obligations, terms and conditions provided for in this Agreement.
- Fees and Payments. The Customer understands and agrees and promises to pay Realtime the fees agreed to by Customer on a monthly basis in exchange for the Services. As such, all services are billed monthly. Realtime reserves the right to change its pricing with thirty (30) days written notice to Customer. Payment terms are net 30 days from date of invoice and Customer agrees to pay all amounts when due. Fees paid are non-refundable, except when required by law. Realtime will pay for Local, State, and Federal taxes as well as the cost of maintaining the SaaS via the internet, and the foregoing costs will include and be part of the per month rate. Customer understands by entering into this Agreement that Realtime may terminate the Services for non-payment by Customer of any sum due to Realtime and pursue damages as contained in this Agreement.
- Term of Service. The initial term of this Agreement is six (6) months. Following expiration of the initial term, this Agreement will automatically renew for successive one-month terms unless and until either party gives the other party written notice of termination with at least thirty (30) days notice. Customer’s obligation to pay all charges incurred under this Agreement shall survive nonrenewal.
- Customer acknowledges that all right, title and interest in and to the Services shall be and remain with Realtime. As part of its use of the Services, Customers access the communications services via the internet to the web-based SaaS. The proprietary software system or Services completes connections with potential clients for Customer. Information regarding potential clients, including contact information and audiovisual recordings used to provide to customers are obtained by Realtime (“Client Data”). Realtime retains a copy of the Client Data. Realtime reserves the right to delete any and all such Client Data after forty-five (45) days have expired from the delivery of Client Data to the Customer for treatment review. As between Realtime and Customer, until Customer becomes a provider for the Client, Realtime will have sole and exclusive ownership of all rights, title and interest in and to all Client Data. Realtime grants to Customer a non-exclusive, revocable right, during the term of the applicable Schedule, to host, copy, transmit and display the Client Data solely to the extent necessary to provide the Services and until such time as that data is transferred to Customer to become a provider. Realtime may disclose such Client Data that remains on its system in the event that Realtime believes that is under a legal obligation to disclose such information, as may be the case in the instance of receipt of a subpoena to Realtime. Realtime will not use any of the Client Data for any purpose, except as required to provide the Services.
- Confidential Data. As used in this Agreement, “Confidential Data” shall mean information furnished or disclosed by Realtime or its agent or representative to Customer, in oral, written, or electronic form, including but not limited to (i) any materials, trade secrets, know-how, formulas, processes, contacts, ideas, strategies, inventions, data, videos, computer programs, software and documentation, prototypes, methods, system architecture, specifications, models, samples, designs, flow charts, drawings and all other technical information; (ii) proprietary information, including business and marketing plans, contracts, proposals, pricing information and other financial and operational information, customer lists and logs, concepts relating to such customer lists or logs, and all other non-public information, material or data relating to the current and/or future business and operations including but not limited to spin off markets and possible spin off markets; and (iii) any analyses, compilations, studies, summaries, extracts or other documentation related to the potential business relationship prepared by Realtime, its employees or contractors. Such Confidential Data, including all copies thereof, shall be deemed the property of Realtime and shall be returned to Realtime within one business day upon request after termination or nonrenewal of this Agreement. Confidential Data shall not include information which is otherwise available to the public or is made public by Realtime; or which is furnished by Realtime to a third-party without restriction and without breach of this Agreement. Customer will not disclose any Confidential Information to any other Person; provided, however, that Customer may disclose Confidential Information as may be required by law. Customer agrees that it will use at least the same degree of care to protect the Confidential Information as it uses to protect its own information of a like nature but, in any event, will employ at least a reasonable degree of care.
- Personal Information. Realtime and Customer acknowledge that there may be Personal Information disclosed to, collected by, or acquired by, Realtime through performance of the Services. It is Customers responsibility to comply with The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and that any and all Client Data shall be managed, used, and held by Customer in compliance with HIPAA. Customer agrees that it will not upload or cause to be uploaded or stored on Realtime’s system any Sensitive Personal Identifying Information such as credit card numbers or social security numbers. Realtime will maintain the Personal Information disclosed to Realtime as confidential unless otherwise required to disclose such information by law. Realtime agrees that it will use at least the same degree of care to protect the Personal Information from Customer, including any that may be including in the Client Data, as it uses to protect its own information of a like nature but, in any event, will employ at least a reasonable degree of care.
- Termination by Realtime. Realtime may terminate this Agreement or suspend Services for any of the following reasons: (a) non-payment by Customer; (b) failure of Customer to provide a valid credit card for processing of the Service Fee; (c) it is learned that the Customer has provided false or misleading information; (d) the filing of a voluntary or involuntary petition in a bankruptcy court which names Customer as debtor; (e) any lawsuit that may impact the Customer’s ability to pay for the Services; (f) failure by Customer to limit use of SaaS to only employees of Customer, patients of Customer who have agreed to appropriate terms and conditions, or potential patients of Customer who have agreed to appropriate terms and conditions; or (g) a breach of the non-disclosure or non-solicitation provisions of this Agreement by Customer or any of its employees. If Realtime terminates this Agreement for the reasons stated in this paragraph, then it shall be considered termination “for cause”. Customer’s obligation to pay all charges incurred under this Agreement shall survive termination.
- Limitation of Liability. REALTIME SHALL NOT BE LIABLE FOR ANY LOST PROFITS, REVENUES, GOODWILL, GENERAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER AS A RESULT OF SERVICES PROVIDED BY REALTIME. Realtime’s sole liability under this Agreement shall be for interruption of SaaS and shall be limited to the amount of Realtime’s actual fixed charges incurred by Customer during the actual period of such interruption during Customer’s regular business hours and shall, in any event, be capped as contained herein. Realtime’s total liability hereunder shall be limited to negligence only. Realtime shall not be liable for any interruption caused by the negligence or willful act or omission of Customer, interruption caused by third-parties, or any interruption caused the third-party furnishing internet to the Customer. The maximum liability of either party in respect of this Agreement, regardless of cause, and whether based in contract, tort (including negligence) or other theory, will be limited to the amount of payment for product or services received from Customer during the one (1) calendar month preceding the month in which such liability arose. The disclaimer contained in this Section will not apply to the extent prohibited by law.
- Customer will indemnify and hold Realtime and its Affiliates and their shareholders, directors, officers, employees and agents (each, an “Indemnified Person”) harmless from, and, at Realtime’s option, defend each Indemnified Person against, any claims, suits, proceedings, losses, liabilities, damages, costs, and expenses (including legal fees and disbursements, expert witness fees, and court costs) incurred by any Indemnified Person and directly or indirectly arising from or related to: (i) any and all claims that may arise from patients or potential patients of Customer or any third-party that Customer permits to use the Services; (ii) any claim that any of Customer’s Data or use thereof is improper; (iii) any breach by Customer; (iv) any breach by Customer of applicable laws in connection with its provision of the Services; or (v) any willful misconduct or fraud by Customer or its employees, agents or contractors in respect of this Agreement. Customer will not settle any claim, suit or proceeding in respect of which the Customer is required to indemnify Realtime or any Indemnified Person hereunder without Realtime or that Indemnified Person’s prior consent, unless it contains a full and unconditional release in favor of the other party and does not contain any financial obligation or other liability of any kind on Realtime or that Indemnified Person’s part, and does not require any admission of fault or liability by Realtime or any Indemnified Person. Notwithstanding the foregoing, if Realtime or any Indemnified Person exercises its option to require the Customer to defend any claim, suit or proceeding subject to indemnification hereunder and the Customer fails to notify Realtime or any Indemnified Person within 45 days after receiving notice of such claim, suit or proceeding that it intends to assume the defense of such claim, suit or proceeding or thereafter fails to diligently pursue such defense, Realtime or any Indemnified Person will have the right to defend such claim, suit or proceeding at the Customer’s cost and expense, and the Customer will provide reasonable assistance and cooperation at its own cost and will not be relieved of its obligation to pay pursuant to its indemnity.
- Disclaimer of Warranties. The Customer acknowledges that complex software is never wholly free from defects, errors, bugs, or security vulnerabilities and therefore Customer acknowledges that the Services is not wholly free from defects, errors, bugs, or security vulnerabilities. As such, REALTIME MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ANY GOODS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER REPRESENTATIONS, TITLE OR NON-INFRINGEMENT, SUCH WARRANTIES BEING EXPRESSLY DISCLAIMED BY REALTIME. REALTIME MAKES NO REPRESENTATIONS, CONDITIONS OR GUARANTEES AS TO MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES REGARDING ANY SERVICES, FACILITIES OR PRODUCTS PROVIDED BY REALTIME TO CUSTOMER WHETHER EXPRESS OR IMPLIED IN LAW OR IN FACT. The disclaimer contained in this Section will not apply to the extent prohibited by law.
- COMPLIANCE WITH LAWS. CUSTOMER AGREES TO USE ITS BEST EFFORTS TO COMPLY, AT ITS OWN EXPENSE, WITH ALL LAWS, ORDERS, AND REGULATIONS IN PERFORMING OR USING SERVICES INCLUDING BUT NOT LIMITED TO THE GLB; HIPAA; AND ALL OTHER PRIVACY AND CONFIDENTIALITY LAWS INCLUDING BUT NOT LIMITED TO STATE NOTIFICATION AND CONSUMER PROTECTIONS LAWS. Such compliance shall include but not be limited to calls within various time-zones and locales and restrictions on calling times, consents, and other call restrictions.
- Force Majeure. No delay or failure by the parties hereto in the performance of any obligation of this Agreement shall be deemed a breach of this agreement nor create a liability, if the same shall arise by reason of any cause beyond the reasonable control of the affected party, including, but not limited to, labor disputes, strikes, riots, terrorism, accident, utility failures, government regulations, fire, or acts of God, provided that the party so affected shall use its diligent, commercially reasonable efforts to avoid or remove such cause of nonperformance and shall continue performance hereunder as soon as practicable, and provided further that Client shall be entitled to suspend payments during any such period of nonperformance by Company. In the event such cause occurs and exceeds thirty (30) calendar days, the party whose performance is not affected by such cause may cancel this agreement or any particular placement upon written notice and without further liability, other than the payment of any monies due a party hereunder.
- Non-Disclosure & Non-Solicitation. Customer shall hold all Confidential Data (excluding trade secrets) in confidence during the term of this Agreement and for a period of three (3) years after termination or nonrenewal of this Agreement with Realtime and shall return to (and not retain) any Confidential Data to Realtime after the termination or nonrenewal of this Agreement. Customer shall hold all trade secrets in confidence during the term of this Agreement and in perpetuity thereafter. During the term of this Agreement, Customer (a) shall use such Confidential Information only for the purposes authorized specifically by Realtime and within Customer’s business; (b) shall not reproduce such Confidential Data; (c) shall restrict disclosure of such Confidential Data to any person that is not an employee of Customer unless Customer obtains express prior written permission from Realtime; (d) shall use at least the same degree of care as Customer uses with regard to Customer’s own proprietary or confidential information to prevent the disclosure, use or publication of such Confidential Data; and (e) shall not copy, reproduce or otherwise duplicate, record, abstract, summarize or otherwise use, any papers, records, reports, studies, computer printouts, videos, equipment, tools or other property owned by Realtime except as expressly permitted by Realtime in writing. Nothing in this Agreement shall operate to assign or transfer any intellectual property rights or Confidential Data to the Customer. The Customer’s obligations set forth in this Agreement to protect Confidential Data received from Realtime shall survive any termination of this Agreement and shall be binding without regard to the passage of time or other events. During the term of this Agreement and for a period of two (2) years following the termination of this Agreement Customer shall not solicit or offer employment to any current or former employee of Realtime for itself or any person related to or affiliated with Customer.
- Injunctive Relief & Venue. Both Parties acknowledge and agree that Realtime owns all rights, title and interest in the Confidential Data and that the SaaS and the tools, applications, information and materials provided in connection with the SaaS possess a special, unique and extraordinary character that makes difficult the assessment of the monetary damages that would be sustained as a result of unauthorized use. Both Parties further acknowledge and agree that the unauthorized disclosure of the Confidential Data or unauthorized use of the Services will cause immediate and irreparable harm that will not be compensable by damages alone if Customer repudiates or breaches any of the provisions hereof, or threatens or attempts to do so. As a result of the unique nature of the Confidential Data and the Services, in addition to and not in limitation of any other rights, remedies or damages available at law or in equity, Customer acknowledges that Realtime shall be entitled to obtain a temporary, preliminary and permanent injunction in a court of competent jurisdiction to prevent or restrain any actual or threatened breach of the non-disclosure provisions of this Agreement by Customer or any person or entity acting in concert therewith or to whom Customer has disclosed Confidential Data or used the Services improperly without the necessity of proving damages or furnishing a bond or other security. In connection with any application for injunctive relief, Customer hereby waives the claim or defense that an adequate remedy exists at law. Customer also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of, and the exclusive laying of venue in (and in that regard Customer agrees not to plead or claim in any court that any such action, suit or proceeding brought in any such court has been brought in any inconvenient forum) the Fifth District Court located in Washington County, Utah for any action, suit or proceeding relating to this Agreement.
- Attorneys’ Fees and Costs. Customer shall be liable to Realtime for any legal fees and the costs incurred to enforce the terms of this Agreement including but not limited to those fees and costs incurred for the collection of delinquent accounts.
- Arbitration. If a dispute arises out of or relates to this contract other than one for which an injunction is required detailed in Section 17 above, or the breach thereof, and if said dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by a neutral mediator chosen by Realtime. Any controversy or claim (other than one requiring an injunction as detailed in Section 17 above) arising out of or relating to this contract, or the breach thereof, that is not resolved by mediation shall be settled by arbitration administered by a neutral arbitrator chosen by the parties, and judgment on the award rendered by the arbitrator(s) may be entered in the Fifth District Court located in Washington County, Utah for any action, suit or proceeding relating to this Agreement.
- General Provisions Under this Agreement. The Customer and the Customer’s Representative hereby warrant that the Customer has authority to enter into this Agreement and to agree to the fees contemplated herein and all other terms contained herein. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized representatives. Section headings are provided for convenience only, and shall not be used to construe the meaning of any section hereof. A party may waive any right under this Agreement only by written waiver duly signed by such party, and no failure to exercise or delay in exercising a right under this Agreement shall constitute a waiver of such right. Any waiver of a term of this Agreement shall not constitute a future waiver of any other term of this Agreement. This Agreement shall be governed by the laws of the State of Utah. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may not be assigned by either party without the prior written consent of the other. If any portion of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in effect and the parties shall promptly negotiate to replace invalid or unenforceable portions that are essential parts of this Agreement. All notices under this Agreement shall be in writing and either mailed or sent by facsimile to each party at the address set forth on the cover page of this Agreement or other such address that a party indicates in writing. There are no third-party beneficiaries under this Agreement. The respective obligations of the parties to this Agreement, which by their nature would continue beyond the termination or expiration of this Agreement, including but not limited to the obligations regarding confidentiality, publicity and proprietary information, and limitations on liability, shall survive termination or expiration of this Agreement. The parties to this Agreement are independent contractors. Neither party will be deemed to be or hold itself out as a partner, joint venturer or agent of the other party. This is a non-exclusive arrangement.
- Entire Agreement. This Agreement and Addendums hereto constitutes the entire Agreement between the parties with respect to the Services described in this Agreement. This Agreement supersedes all prior agreements, proposals, representations, statements or understandings, other business dealings or negotiations, offers and counter-offers, whether written or oral, or the rights and obligations relating to the services described in this Agreement. This Agreement shall not be contradicted, or supplemented by any written or oral statements, proposals, representations, advertisements, service descriptions or other documents not expressly set forth in this Agreement.