Please read this agreement carefully before using this service.

By using the service, clicking Agree, or providing another form of assent, you are agreeing to be bound by this agreement. If you are agreeing to this agreement on behalf of or for the benefit of your employer or a third party, then you represent and warrant that you have the necessary authority to agree to this agreement on their behalf.

This agreement is between IGX Technologies LLC, dba Smile Virtual, a Utah limited liability company (Smile Virtual), and the Customer agreeing to these terms (Customer).

1. Software Service.

This agreement and the applicable order provide Customer access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface, and underlying software, as specified on an order (Service).

2. Use of Service.

a. Customer Owned Content. All video, audio, content and data uploaded by Customer to the Service remains the property of Customer, as between Smile Virtual and Customer (Customer Content). Customer represents and warrants to Smile Virtual that Customer has provided all required notices and has obtained all required licenses, permissions, and consents regarding Customer Content for use within the Service under this agreement. During the term of an order, Customer grants Smile Virtual the right to use the Customer Content to provide, maintain and enhance its Service and associated systems. During the term of an order form, Customer may export its Customer Content as allowed by functionality within the Service.

b. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is responsible for its access control policies and administration of access rights to its account within the Service, the acts and omissions of its users, and the legality and accuracy of Customer Content ; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Smile Virtual promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s technical guide and applicable law.

c. Limitations. The Service is a tool that may be used to assist health care providers in the practice of dentistry or wellness, and is not a substitute for competent human intervention or discretionary thinking. Customer, on behalf of itself and all of its users of the Service, agrees to use the Service only in accordance with applicable standards of good dental practice. Customer further agrees that Customer is solely responsible for decisions made in configuring the Service and for the dental decision-making and judgments of Customer users related to the treatment of patients and that Smile Virtual has no responsibility or liability therefor.

3. Service Level Agreement and Warranty.

a. Availability Warranty. Smile Virtual warrants to Customer that Smile Virtual will maintain the availability of the Service as provided in the chart below (excluding maintenance outages, outages beyond Smile Virtual’s reasonable control, and outages that result from any Customer technology issues).

Credit for Availability Warranty.

Customer’s exclusive remedy, and Smile Virtual’s sole obligation for its failure to meet this warranty, will be for Smile Virtual to provide a credit for the applicable month, as provided in the chart above (or, if this agreement is not renewed, a refund for the month), provided that Customer notifies Smile Virtual of such breach within 30 days of the end of that month.

b. Warranty. Smile Virtual warrants to Customer that: (i) Smile Virtual will not materially decrease the overall security of the Service; (ii) the Service will perform materially in accordance with its technical documentation; and (iii) Smile Virtual will neither materially decrease the overall functionality of the Service nor the scope of Support. 

c. Disclaimer. Smile Virtual disclaims all other warranties, including, without limitation, the implied warranties of merchantability, title, and fitness for a particular purpose. While Smile Virtual takes reasonable physical, technical, and administrative measures to secure the Service, Smile Virtual does not guarantee that the Service cannot be compromised. Customer understands and agrees that the Service may not be error-free and that use may be interrupted. Smile Virtual is neither responsible nor liable for any third-party service issues.

4. Payment. 

a. Fees and Payment. Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law. If Smile Virtual has the legal obligation to pay or collect taxes for which Customer is responsible under this section, Smile Virtual will invoice Customer and Customer  will pay that amount unless Customer provides Smile Virtual with a valid tax exemption certificate authorized by the appropriate taxing authority. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.

b. Late Payments. Amounts not paid when due accrue (i) the lower of, interest at 1.5 % per month, or the maximum rate permitted by law, and (ii) an administrative late charge of $35. If any amount is still unpaid 15 days after the due date, Company may suspend the Services, without liability to Customer, upon advance e-mail notice to the email address in Customer’s account.

c. Onboarding. Customer may onboard to the Service on its own, and more information regarding onboarding will be automatically sent to Customer. In addition, Smile Virtual provides its standard onboarding at no additional charge, and it will provide information regarding onboarding after Customer subscribes to the Service. Customer owes all fees under an order, irrespective if they onboard to the Service or not. 

d. Billing Disputes 

1. Direct Dispute Resolution.
   Customer agrees to notify Company within ten (10) days of the applicable invoice date in writing at [email protected] for any disputes regarding invoices, charges, or payments. Customer shall provide sufficient detail to enable Company to investigate the dispute, and agrees to cooperate in good faith to resolve the matter. Company will review and respond to all such notices in a timely manner.
2.  Chargeback Restrictions.
   Customer agrees not to initiate a chargeback or payment reversal with its credit card issuer or payment processor unless Customer has first provided notice to Company under this Agreement and allowed Company a reasonable period of not less than fifteen (15) days to investigate and resolve the dispute.
3. Reimbursement of Improper Chargeback Costs.
   In the event that Customer initiates a chargeback or payment reversal that is subsequently resolved in Company’s favor (including by the credit card issuer or payment processor), Customer shall promptly reimburse Company for:
   • all associated chargeback or reversal fees imposed on Company by its payment processor or bank, and
   • an administrative fee of the greater of $100 or 5% of the disputed amount to cover associated internal costs. 
4. Credit Reporting.
   Company reserves the right to report unpaid amounts to commercial credit reporting agencies in accordance with applicable laws. 
5. Suspension and Termination.
   Repeated or improper chargebacks may be deemed a material breach of this Agreement. Company may suspend services or terminate this Agreement upon written notice if Customer engages in multiple or improper chargebacks.

5. Mutual Confidentiality.

a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Smile Virtual’s Confidential Information includes, without limitation, the Service and non-public pricing information. Customer’s Confidential Information includes, without limitation, the Customer Content.

b. Protection of Confidential Information. Recipient must use the same degree of care that it uses to protect the confidentiality of its
own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of Discloser for any purpose outside the scope of this agreement; and (ii) limit access to Confidential Information of Discloser to those of its  employees
and contractors who need that access for purposes consistent with this agreement and who have signed confidentiality
agreements with Recipient containing protections not materially less protective of the Confidential Information than
those in this agreement.

c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

d. Data Security. Smile Virtual agrees to implement and maintain physical, technical and administrative safeguards under a written information security program reasonably designed, taking into account the circumstances of Customer’s business, to help: ensure the security, integrity and confidentiality of Customer Content; protect against any anticipated threats or hazards to the security, integrity or confidentiality of Customer Content; and protect against any unauthorized access to or use of Customer Content, internally or externally.

6. Property.

a. Reservation of Rights. Smile Virtual and its licensors are the sole owners of the Service, including all associated intellectual property rights, and they remain only with Smile Virtual. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Smile Virtual reserves all rights that are not expressly granted in this agreement.

b. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) disassemble, decompile or reverse engineer the Service or any part thereof, or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Service by any means whatsoever; (vi) engage in any conduct using the Services that is not in compliance, if applicable, with the consumer protection and/or privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA) and related Omnibus Rule, the Health Information Technology for Economic and Clinical Health Act (HITECH Act), the Telephone Consumer Protection Act of 1991 (TCPA), the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM), the Personal Information Protection and Electronic Documents Act of Canada (PIPEDA), and Canada’s Anti-Spam Legislation (CASL), or (vii) access the Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. Smile Virtual may suspend Service to Customer if Smile Virtual believes in good faith that  Customer’s use of the Service poses an imminent threat to the security, availability or legality of the Service; in such event, Smile Virtual will work with Customer to address the issue and restore Service as quickly as possible.

c. HIPAA. If Customer is a Covered Entity, the parties agree to the BAA located athttps://www.smilevirtual.com/baa/ 

d. Aggregation Services, Limited Data Sets and De-Identified Data.  Smile Virtual may use Client Content, to use data aggregation services (as that term is defined by HIPAA), to create Limited Data Sets (as that term is defined by HIPAA) or to de-identify information in accordance with 45 CFR 164.514(a)-(c). Smile Virtual retains all intellectual property rights in such data. Smile Virtual may use, during and after this Agreement, all aggregated information and de-identified data for purposes of enhancing the Services, technical support and other business purposes, all in compliance with the HIPAA privacy standards and the Part 2 Regulations. Smile Virtual may create Limited Data Sets using Client Protected Health Information and further use and disclose those Limited Data Sets in accordance with the BAA.

7. Term and Termination.

a. Term. This agreement continues until all orders have expired, unless earlier terminated as provided below.

b. Term of Orders.  The term of each order must be specified in the order.

c. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

d. Return of Customer Content.

• Within 30 days after termination, upon request Smile Virtual will make the Service available for Customer to export Customer Content as provided in Section 2(a).
• After such 30-day period, Smile Virtual has no obligation to maintain the Customer Content and may destroy it.

e. Effect of Termination. If this agreement is terminated for Smile Virtual’s breach, Smile Virtual will refund Customer fees prepaid for the remainder of the term of all orders after the termination effective date.  If this agreement is terminated for Customer’s breach, Customer will pay any unpaid fees for the term of all orders.  Upon request, following any termination of this agreement, each party will destroy or return all of the other party’s property that it holds, subject to the “Return of Customer Content” section above.

8. Liability Limit.

a. Exclusion of Indirect Damages.
To the maximum extent allowed by law, Smile Virtual is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to customer content; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.

b. Total Limit on Liability.
To the maximum extent allowed by law, Smile Virtual’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability, except that the above limitation does not apply to Customer’s payment obligations for the service.

9. Governing Law and Forum.

This agreement is governed by the laws of the State of Utah (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Salt Lake County, Utah, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

10. Other Terms. 

a. Indemnity. If any third party brings a claim against Smile Virtual or its affiliate related to Customer’s use or access to the Service, Customer must defend, indemnify, and hold Smile Virtual harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim, excluding any claim based on the negligence of Smile Virtual. 

b. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by Smile Virtual.

c. No Assignment. Neither party may assign or transfer this agreement to a third party, except that the agreement and all orders may be assigned without the consent of the other party as part of a merger or sale of all or substantially all a party’s businesses, assets, not involving a competitor of the other party.

d. Export Compliance. The Service  and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or in violation of any applicable export law or regulation.

e. Independent Contractors. The parties are independent contractors with respect to each other, and neither party is an agent, employee, or partner of the other party.

f. SMS/MMS Communications:  By providing your mobile number and opting into communications, you consent to receive SMS and/or MMS messages from Growth99, including transactional, promotional, and informational content. Message frequency may vary depending on your interaction with us.  Message and data rates may apply. To opt out of SMS/MMS messages at any time, reply STOP, UNSUB, or UNSUBSCRIBE to any message you receive. For support or assistance, reply HELP or contact us at [email protected] .

g. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for its non-performance due to events beyond its reasonable control and whether foreseeable or not, including but not limited to natural weather events and disasters, labor disruptions, disruptions in the supply of utilities, and public Internet failures.

h. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.

i. U.S. Federal Agency Entities. The Service was developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable U.S. Federal Acquisition Regulation and agency supplements thereto. 

j. No Additional Terms. Smile Virtual rejects additional or conflicting terms of a Customer’s form-purchasing document.

k. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.

l. Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.

m. Feedback. If Customer provides feedback or suggestions about the Service, then Smile Virtual (and those it allows to use its technology) may use such information without obligation to Customer.