ENCODE® EMPOWERED LIMITED LICENSE AGREEMENT (USA) FOR REALGUIDE CAD AND FULL SUITE SUBSCRIBERS

PLEASE READ THESE LICENSE TERMS CAREFULLY. BY USING THE ENCODE LIBRARIES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  CERTAIN TERMS SHALL BE APPROVED SPECIFICALLY - READ THEM CAREFFULLY. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, STOP ALL USES AND IMMEDIATELY DELETE FROM YOUR DEVICE.

This is a legal agreement between You (“You”, “Your” or “Licensee”) and Biomet 3i, LLC dba ZimVie Dental, a ZimVie Group Company, ("Licensor" or "ZimVie Dental") for the use of the Encode Libraries. We license the use of the Libraries to You on the basis of this Agreement. We do not sell the Libraries to You. We remain the owners of the Libraries at all times.

We license You to use the Encode Libraries on a limited, non-exclusive and non-transferable basis, throughout the duration of your subscription to RealGUIDE CAD or Full Suite Modules (the “Subscription Period”). This license provides You a right to design a certain set of custom dental implant abutments and/or the right to design and fabricate custom dental implant restorative models in accordance with the terms and conditions provided herein. 

1.      Definitions.

The following definitions apply: 

1.1. “Claim” means any cause of action, claim, judgment, loss, damage, liability, penalty, investigation, or expense, whether alleged or actual (including, without limitation, reasonable attorneys’ fees, witness fees, and costs at all levels of arbitration, trial and appeal).

1.2. “Delivery Charges” means any shipping, insurance and transportation charges or costs that may be incurred in connection with the shipment or transportation of Encode Abutments from the shipping point to Your designated delivery location within the Territory, such as charges and costs for freight, transfer and/or trans-shipment, loading, unloading, and clearance and/or forwarding, as well as any and all taxes and levies for the sale, shipping or transportation of such Encode Abutments.

1.3. “Due Date” means within forty-five (45) days after the invoice date for Encode Abutments.

1.4. “Encode Abutment(s)” means an abutment (which may be temporary or final) manufactured or milled by ZimVie Dental or its affiliates that is derived in whole or in part from ZimVie Dental Proprietary Information. Without limitation, collectively and individually, the following comprise Encode Abutments: (i) the Ti Abutments for Certain®, (ii) the Ti Abutments for External Hex, (iii) the Ti Abutments for Tapered Screw-Vent, (iv) the TiN Abutments for Certain, and (v) the TiN Abutments for External Hex.

1.5. “Libraries” means ZimVie Dental’s proprietary and highly confidential digital computer aided designed (CAD) libraries, including but not limited to RealGUIDE CAD, and Encode Libraries, in existence as of the Effective Date, or as updated and provided at ZimVie Dental’s sole discretion, to determine the position and/or orientation of the underlying implants from the Encode Healing Abutment Data to design a restoration, including, but not limited to an Encode Abutment.

1.6. “Encode Healing Abutment” means any attachment member covered or protected by the Encode Patents and manufactured or distributed by ZimVie Dental or its affiliates.

1.7. “Encode Healing Abutment Data” means any data derived from an Encode Healing Abutment.                           

1.8. “Encode Model” means any anatomic model of a patient, including but not limited to a rapid prototype model or a milled model, which is covered or protected by Model Patents and derived, directly or indirectly, using an Encode Healing Abutment or Encode Healing Abutment Data; provided, that for the avoidance of doubt, such model shall not comprise an “Encode Model” hereunder if it is derived from any other attachment member such as an intra-oral scan body.

1.9. “Encode Patents” means all Encode Abutment and Model Encode Patents including U.S. patent numbers 7,425,131: 7,661,956; 8,011,925; 8,185,224; 8,257,083; 8,612,037; 8,690,574; 8,855,800; 8,998,614; 9,108,361; 10,022,916; 10,307,227; and 11,046,006 and all U.S.  patents claiming priority to the above-identified patents under 35  U.S.C §120, and all corresponding foreign patents claiming priority to the above-identified patents.

1.10. “Force Majeure Event” means a cause beyond a party’s reasonable control, including, but not limited to, work stoppages, fires, civil disobedience, riots, rebellions, floods, war, acts of terrorism, delays in transportation, accident, acts of God and other similar occurrences.

1.11. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as amended.

1.12. “HITECH Act” means Title XIII of the American Recovery and Reinvestment Act of 2009 also known as the Health Information Technology for Economic Clinical Health Act.

1.13. “Indemnified Party” means the party or Representative being indemnified pursuant to this Agreement.

1.14. “Indemnifying Party” means the party providing indemnity pursuant to this Agreement.

1.15. “Intellectual Property Rights” means any and all registered and unregistered intellectual property rights, including, without limitation, copyrights, patents, trademarks, service marks, trade dress, trade names, design rights, industrial rights, moral rights and all similar property rights subsisting anywhere in the world.

1.16. “Licenses” means the licenses granted by ZimVie Dental (Licensor) to Licensee pursuant to Section 2.

1.17. “PHI” means Protected Health Information as defined in the Privacy Rule and Security Rule.

1.18. “Privacy Rule” has the meaning set forth in 45 CFR Parts 160, 162 and 164.

1.19. “Proprietary Information” means all proprietary information and data of ZimVie Dental that is provided by or on behalf of ZimVie Dental to Licensee including, but not limited to, CAD Libraries, RealGUIDE CAD, Encode Libraries, Encode Patents and Model Patents, which are owned, controlled, or maintained by ZimVie Dental as of the Effective Date. For the avoidance of doubt, Proprietary Information does not include, and no Licenses are granted with respect to, Encode CAD libraries that are created by Licensee or a third party.

1.20. “Purchase Order” means a purchase order in form and substance acceptable to ZimVie Dental to be submitted by You in the manner (e.g., electronically or in writing) prescribed by ZimVie Dental.

1.21. “Representative” means each subsidiary, parent entity and affiliate of a party, as well as each shareholder, principal, director, officer, employee, agent and other representative of such party and of such party’s subsidiaries, parent entities and affiliates.

1.22. “Security Rule” has the meaning set forth in 45 CFR Parts 160, 162 and 164.

1.23. “Territory” means the United States of America.

1.24. “Third Party” means an individual, company or entity other than ZimVie Dental or Licensee.

1.25. "Ti Abutment for Certain" means a titanium custom dental implant final abutment for ZimVie Dental's Certain implant connection, designed by Licensee and manufactured by ZimVie Dental pursuant to the applicable Encode Healing Abutment Data, comprising part number ILDAT3, ILDAT4, ILDAT5, or ILDAT6.

1.26. "Ti Abutment for External Hex" means a titanium custom dental implant final abutment for ZimVie Dental's External Hex implant connection, designed by Licensee and manufactured by ZimVie Dental pursuant to the applicable Encode Healing Abutment Data, comprising part number LDAT3, LDAT4, LDAT5, or LDAT6.

1.27. "Ti Abutment for Tapered Screw-Vent" means a titanium custom dental implant final abutment for ZimVie Dental's Tapered Screw-Vent implant connection, designed by Licensee and manufactured by ZimVie Dental pursuant to the applicable Encode Healing Abutment Data, comprising part number TSVLDAT3, TSVLDAT4, or TSVLDAT5.

1.28. "TiN Abutment for Certain" means a titanium custom dental implant final abutment coated with titanium nitride for ZimVie Dental's Certain implant connection, designed by Licensee and manufactured by ZimVie Dental pursuant to the applicable Encode Healing Abutment Data, comprising part number ILDAN3, ILDAN4, ILDAN5, or ILDAN6.

1.29. "TiN Abutment for External Hex" means a titanium custom dental implant final abutment coated with titanium nitride for ZimVie Dental's External Hex implant connection, designed by Licensee and manufactured by ZimVie Dental pursuant to the applicable Encode Healing Abutment Data, comprising part number LDAN3, LDAN4, LDAN5, or LDAN6.

1.30. “Genuine Encode Titanium Base” means a titanium base abutment for use with ZimVie Dental Certain, External Hex, or Tapered Screw Vent implant connections, which is either branded with ZimVie Dental and/or manufactured by ZimVie Dental or its affiliates. 

2. Licenses

2.1. For the duration of Your active RealGUIDE CAD or Full Suite subscription, ZimVie Dental hereby grants to You the Licensee a limited, non-exclusive, non-sublicensable, non-assignable and license to use the Proprietary Information solely for (i) designing Encode Abutments in the Territory, and/or (ii) designing and fabricating temporary and/or final restorations affixed to a Genuine Encode Titanium Base in full compliance with a valid product registration and regulatory requirements, and (iii) designing and fabricating one (1) working Encode Model per each genuine Encode Abutment or Genuine Encode Titanium Base purchased directly from ZimVie Dental or its affiliates for use in connection with test fitting, fabricating, verifying and/or finalizing such Encode Abutment or Genuine Encode Titanium Base.

2.2. For purposes of clarity, the License granted under this Section 2(A)(i)-(iii) entitles Licensee to:  (a) receive and generate scan data from the Encode Healing Abutment, decode Encode Healing Abutment Data utilizing digitized scan data from the Encode Healing Abutment and the Encode CAD Libraries; design the Encode Abutment; and thereafter submit the Encode Abutment design information to ZimVie Dental to mill or manufacture the Encode Abutment pursuant to the terms and conditions set forth in this Agreement; or (b) receive and generate scan data from the Encode Healing Abutment, decode Encode Healing Abutment Data utilizing digitized scan data from the Encode Healing Abutment and the Encode CAD Libraries; design the placement of a Genuine Encode Titanium Base; and thereafter provide the model and Genuine Titanium Base for provisional or final restoration pursuant to the terms and conditions set forth in the Agreement.

2.3. For the avoidance of doubt, this License does not permit, and Licensee is expressly prohibited from using the Proprietary Information or Intellectual Property Rights to create, mill or manufacture an implant restoration directly or indirectly through a third party, or design or fabricate an Encode Model independent from the purchase of an Encode Abutment or procurement and use of a Genuine Encode Titanium Base for use with the Encode Model. The License rights, conditions and restrictions herein apply to all applications and uses of Encode Healing Abutments irrespective of the component that such Encode Healing Abutment (or subsequent Encode Abutment) may be paired with or the paired component’s manufacturer. Before providing the physical Encode Model or digital design of an Encode Model to a third party, Licensee must procure an Encode Abutment or Genuine Encode Titanium Base for each implant site in the model for which Licensee utilized digitized scan data from the Encode Healing Abutment and the Encode CAD Libraries. This License is for the Proprietary Information in existence as of the Effective Date and does not include any rights to improvements, modifications or advancements to the Proprietary Information after the Effective Date.

2.4. ZimVie Dental hereby grants to Licensee a limited, non-exclusive, non-sublicensable, non-assignable and terminable license under the following trademarks: “Encode®”, “BellaTek™”, “BellaTek Encode Empowered™”, and “BellaChek™” (collectively, the “Licensed Trademarks”) solely for the purpose of marketing the Encode Abutments. The Licensee’s use of the Licensed Trademarks shall inure solely to the benefit of ZimVie Dental. Licensee shall (i) comply with all instructions of ZimVie Dental as to the form and manner in which each of the Licensed Trademarks are used, including any instructions as to quality, style and graphic integrity; (ii) not make any addition to, deletion from or other modification to any of the Licensed Trademarks; and (iii) not use the Licensed Trademarks other than pursuant to this Agreement. To request a current list of trademark usage instructions and branding guidelines, please contact Customer Service at (561) 776-6700 or DentalCS@zimvie.com.

2.5. The Licenses granted above do not convey any ownership to Licensee of the Proprietary Information or other Intellectual Property Rights owned, licensed or controlled by ZimVie Dental. The Licenses granted above are only to the Proprietary Information in existence and conveyed pursuant to the Effective date of this License Agreement and do not obligate ZimVie Dental to provide updated or other versions of the Proprietary Information. Any attempt to assign, sublicense or otherwise transfer the Licenses granted by ZimVie Dental to Licensee pursuant to this Agreement will be void and of no effect. All rights not specifically and expressly granted to Licensee hereunder are expressly reserved by ZimVie Dental.

2.6. This License is granted for the workflow in which Licensee utilizes ZimVie Dental Proprietary Information or Intellectual Property Rights to design Encode Abutments and submits the design to ZimVie Dental for milling and manufacture of the Encode Abutment. Any other workflow is not contemplated or licensed under this License and would constitute a material breach of this License and may infringe ZimVie Dental Intellectual Property Rights.

3. Milling. Any Encode Abutments designed by You under this Agreement must be submitted to ZimVie Dental for milling pursuant to a Purchase Order. You shall not mill or otherwise manufacture, themselves or by means of a third party, any Encode Abutments, and You shall not use any Proprietary Information for purposes of milling or manufacturing, themselves or by means of a third party, any dental implant abutments or healing abutments.

4. Purchase Orders. You shall place all orders for Encode Abutments under this Agreement by submitting a Purchase Order to ZimVie Dental. All Purchase Orders are subject to the terms and conditions of this Agreement. All Purchase Orders are subject to receipt and pre-approval in writing by ZimVie Dental. Purchase Orders are non-cancellable and not subject to change by You; provided, however, if You request a reasonable change to a Purchase Order, then ZimVie Dental will make commercially reasonable efforts to accommodate Your request. 

5. Delivery.

5.1. ZimVie Dental will ship Encode Abutments FCA ZimVie Dental’s Palm Beach Gardens, FL facility or other point of shipment (Incoterms FCA point of shipment) using the carrier designated on the applicable purchase order or ordering instructions. Licensee shall receive title to the Encode Abutments when they are tendered to Your carrier at the point of shipment, and You are responsible for risk of loss or damage to Encode Abutments once they are tendered by ZimVie Dental to Your carrier. You shall not export or otherwise transfer Encode Abutments outside of the Territory.

5.2. You shall be responsible for all Delivery Charges. ZimVie Dental shall have the right, but not the obligation, to advance any amount of Delivery Charges on behalf of You, or alternatively may require You to (i) pre-pay any Delivery Charges to ZimVie Dental, or (ii) pay any and all Delivery Charges directly to any and all obligees of such Delivery Charges. If any Delivery Charges are so advanced by ZimVie Dental, then You shall pay and reimburse in full ZimVie Dental on demand for all such Delivery Charges that may be applicable. 

6. Fees.

6.1. You shall pay fees for Encode Abutments designed by You and milled by ZimVie Dental as outlined in Exhibit A hereto. ZimVie Dental may change the fees for Encode Abutments on an annual basis by notice to You; provided, however, that (i) any change in the fees will not affect Your Purchase Orders for Encode Abutments which ZimVie Dental has accepted prior to You receiving notice of a change in pricing; and (ii) the fees will not increase by more than three percent (3%) on an annual basis.

6.2. In consideration for being a You hereunder and pursuant to Section 2(A)(iii), (a) prices in Exhibit A include the right to design and fabricate one Encode Model per Encode Abutment purchased; and (b) the purchase of a Genuine Encode Titanium Base includes the right to design and fabricate one Encode Model per Genuine Encode Titanium Base purchased, with each Encode Model valued at ten U.S. dollars ($10).

7. Payment.

7.1. Terms of Payment. All payments made by You to ZimVie Dental under this Agreement shall be made in United States dollars by credit card, by check mailed to the remittance address specified in the applicable invoice, by electronic transfer of funds to an authorized bank account designated in writing by ZimVie Dental, or by other means approved in writing by ZimVie Dental. All payments under Section 6(B) shall be made by the applicable Due Date. You shall have no right to withhold, deduct or set off against any payments, whether to compensate for any claims against ZimVie Dental or for any other reason. No discounts will be provided for any pre-payment. If delivery to You of any Encode Abutment is delayed at the request of You, then payment for the Encode Abutment will become due as if the delivery had been made on the originally scheduled delivery date.

7.2. Taxes. If any tax or levy is made on the sale of any goods, services or License provided pursuant to this Agreement, then You shall automatically pay such tax or levy and/or the applicable payment will be increased until the net amount received by ZimVie Dental is an amount equal to the invoiced payment minus the tax or levy.

7.3. Invoices. ZimVie Dental will invoice You at the time of shipping an order for Encode Abutments. ZimVie Dental’s failure to invoice You will not relieve You of its obligation to timely pay ZimVie Dental. Any invoice not disputed in writing by You to ZimVie Dental within forty-five (45) days of the date on the applicable invoice will be deemed accepted by You and will not be subject to dispute by You.

Late Payment. All amounts not received by ZimVie Dental on or prior to the applicable Due Date will incur interest from the original Due Date until paid in full at the lesser of one percent (1%) per month or the maximum amount allowed by applicable law. ZimVie Dental reserves the right, but not the obligation, at ZimVie Dental’s sole discretion and in addition to any other right ZimVie Dental has or may have with respect to a late payment, to immediately suspend all pending and/or future deliveries to You if You fails to make any payment after the applicable Due Date. You shall also be liable to and promptly reimburse ZimVie Dental for any and all costs (including reasonable attorneys’ fees, expenses, and all costs of litigation) associated with the collection of outstanding amounts due to ZimVie Dental from You.

8. Product Warranty.

8.1. ZimVie Dental warrants to You that the Encode Abutments milled by ZimVie Dental, and the abutment screws delivered by ZimVie Dental with the Encode Abutments, will be free from defects in manufacture for a period of ninety (90) days from delivery to Your carrier. This product warranty does not extend to any Encode Abutment that is in any way altered after delivery to Your carrier. ZimVie Dental will not accept any return of Encode Abutments (or abutment screws included therewith) except as specifically set forth in ZimVie Dental’s standard return policy, as amended from time to time by ZimVie Dental.

8.2. Any product warranties provided by ZimVie Dental or its affiliates with respect to dental implants are null and void in the event that implant abutments that are not manufactured by ZimVie Dental, or its affiliates are used with such dental implants.

8.3. You shall promptly notify ZimVie Dental in writing of all claims and pending, threatened or filed litigation of which it has or gains knowledge and which may arise out of a breach or alleged breach of the product warranty set forth above. If ZimVie Dental reasonably determines that it needs additional information relating to such claims or litigation, then You shall make available to ZimVie Dental in a reasonably timely manner following a request by ZimVie Dental (not to exceed 30 days) all relevant records and information relating to the Encode Abutments and the litigation.

8.4. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ZIMVIE DENTAL HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. EACH PARTY EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF ENCODE ABUTMENTS IS AT EACH PARTY’S SOLE RISK. ZIMVIE DENTAL DOES NOT WARRANT THAT ENCODE ABUTMENTS WILL MEET LICENSEE’S REQUIREMENTS OR THAT DEFECTS IN ENCODE ABUTMENTS WILL BE CORRECTED. THE ENCODE ABUTMENTS ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.

You acknowledge and agree that the disclaimer of warranties set forth in this Agreement forms an essential basis of the license and agreement hereunder. The disclaimer of warranties set forth in this Agreement is acceptable to each party, and each party’s willingness to agree to this disclaimer of warranties was material to the other party’s decision to enter into this Agreement. The disclaimer of warranties set forth in this Agreement will be enforceable to the maximum extent permitted by applicable law and will apply even if any warranties fail of their essential purpose. Some jurisdictions do not allow for the exclusion of implied or statutory warranties, so some of this disclaimer of warranties may not apply. No oral or written information or advice provided by any party, or any party representative will create a warranty or in any way increase the scope of any warranty set forth in this Agreement.

9. General Representations, Warranties and Covenants.

9.1.  General. You represent and warrant: (i) You possesses full authority to enter into this Agreement; and (ii) this Agreement constitutes a valid and binding obligation, enforceable accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally; (iv) to the best of Your knowledge, there are no legal or other impediments to the execution, delivery and/or performance of this Agreement; (v) the execution, delivery and performance of this Agreement does not and will not violate or cause a breach or default under (a) Your governing corporate or company documents; (b) any agreement, lease, mortgage, license or other contract to which You are a party; or (c) any law, rule, regulation, order, decree or You will comply with all applicable laws, rules and regulations relating to Your actions and obligations pursuant to this Agreement.

9.2. You. You represents, warrants and covenants to ZimVie Dental that (i) You have obtained, and will maintain, all legal and regulatory requirements for meeting Your obligations pursuant to this Agreement; (ii) You will comply with all certifications and industry standards for quality, performance and safety, as well as all applicable laws, rules and regulations, with respect to the Your activities contemplated under this Agreement; and (iii) You will fully cooperate with ZimVie Dental and ZimVie Dental’s Representatives for any product recall or corrective action as reasonably deemed necessary by ZimVie Dental with respect to the Encode Abutments.

9.3. Compliance. Both You and ZimVie Dental agree that in performing their obligations under this Agreement, each shall comply at all times with all applicable laws, regulations, and governmental orders of the Territory and of any jurisdiction in which they operate under this Agreement. You and ZimVie Dental also agree to advise each other of any change, modification or new law which may affect the performance of You or ZimVie Dental with respect to both parties’ obligations under this Agreement.

9.4. HIPAA and HITECH Act. Capitalized terms used in this Section are defined in the Privacy Rule and/or Security Rule. Each of ZimVie Dental and You represents and warrants to the other that it shall comply with all requirements of HIPAA and the HITECH Act. Each of ZimVie Dental and You also represents and warrants to the other that it shall (i) Safeguard all PHI; (ii) not disclose PHI, except as specifically authorized by the owner of such PHI and/or as otherwise provided pursuant to HIPAA and/or the HITECH Act; (iii) use appropriate Safeguards to prevent unauthorized or illegal use or disclosure of PHI; (iv) immediately report any unauthorized or illegal use or disclosure of PHI; (v) ensure that its Representatives to whom it provides PHI, agree to the legal restrictions and conditions that apply to such party with respect to such information; (vi) make internal policies and procedures relating to the use of PHI available to the Secretary of the United States of Health and Human Implant Libraries, for purpose of determining compliance with legal obligations; (vii) implement appropriate Safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the electronic PHI that it accesses, creates, receives, maintains, or transmits; (viii) ensure that its Representatives to whom it provides PHI agrees to implement reasonable and appropriate Safeguards; (ix) immediately report any Security Incident of which it becomes aware; and (x) provide the other party with prompt written notice of any breach involving PHI after the discovery of such breach in accordance with Section 13400(1) of the HITECH Act.

10.  Limitation of Liability.

10.1. EACH PARTY ACKNOWLEDGES AND AGREES THAT NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING, DIRECTLY OR INDIRECTLY, OUT OF THIS AGREEMENT, WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFITS OR GOODWILL.

10.2. The limitations of liability set forth in this Agreement were specifically bargained for and form an essential basis of the bargain between the parties. The limitations of liability set forth in this Agreement are acceptable to each party, and each party’s willingness to agree to these limitations of liability was material to the other party’s decision to enter into this Agreement. The limitations of liability set forth in this Agreement will be enforceable to the maximum extent permitted by applicable law and will apply even if any warranties fail of their essential purpose. Some jurisdictions do not allow for the limitation of liability for personal injury or for incidental or consequential damages, so some of these limitations of liability may not apply.

7. Payment.

7.1. Terms of Payment. All payments made by You to ZimVie Dental under this Agreement shall be made in United States dollars by credit card, by check mailed to the remittance address specified in the applicable invoice, by electronic transfer of funds to an authorized bank account designated in writing by ZimVie Dental, or by other means approved in writing by ZimVie Dental. All payments under Section 6(B) shall be made by the applicable Due Date. You shall have no right to withhold, deduct or set off against any payments, whether to compensate for any claims against ZimVie Dental or for any other reason. No discounts will be provided for any pre-payment. If delivery to You of any Encode Abutment is delayed at the request of You, then payment for the Encode Abutment will become due as if the delivery had been made on the originally scheduled delivery date.

7.2. Taxes. If any tax or levy is made on the sale of any goods, services or License provided pursuant to this Agreement, then You shall automatically pay such tax or levy and/or the applicable payment will be increased until the net amount received by ZimVie Dental is an amount equal to the invoiced payment minus the tax or levy.

7.3. Invoices. ZimVie Dental will invoice You at the time of shipping an order for Encode Abutments. ZimVie Dental’s failure to invoice You will not relieve You of its obligation to timely pay ZimVie Dental. Any invoice not disputed in writing by You to ZimVie Dental within forty-five (45) days of the date on the applicable invoice will be deemed accepted by You and will not be subject to dispute by You.

Late Payment. All amounts not received by ZimVie Dental on or prior to the applicable Due Date will incur interest from the original Due Date until paid in full at the lesser of one percent (1%) per month or the maximum amount allowed by applicable law. ZimVie Dental reserves the right, but not the obligation, at ZimVie Dental’s sole discretion and in addition to any other right ZimVie Dental has or may have with respect to a late payment, to immediately suspend all pending and/or future deliveries to You if You fails to make any payment after the applicable Due Date. You shall also be liable to and promptly reimburse ZimVie Dental for any and all costs (including reasonable attorneys’ fees, expenses, and all costs of litigation) associated with the collection of outstanding amounts due to ZimVie Dental from You.

11. Term; Termination.

1.1. Term. The term of this Agreement (“Term”) shall continue so long as You maintains an active RealGUIDE CAD or Full Suite subscription, unless terminated earlier pursuant to under Section 11 (B) below.

11.2.  Termination.

11.2.1.  This Agreement may be terminated by ZimVie Dental with or without cause, upon providing ninety (90) days prior written notice to You.

11.2.2.  This Agreement may be terminated by ZimVie Dental or You at any time, and immediately, in the event of a material breach by the other party which is not cured within thirty (30) days of receipt of written notice of such material breach. For the avoidance of doubt, the Parties agree that any use or dissemination of ZimVie Dental’s Proprietary Information or Intellectual Property Rights that is inconsistent with the license grants herein shall be considered a material breach of this Agreement, subject to immediate termination.

11.2.3.  This Agreement may be terminated by ZimVie Dental or You at any time, and immediately, if the other party (a) makes an assignment for the benefit of creditors; (b) files a voluntary petition in bankruptcy or is adjudicated as bankrupt or insolvent; (c) files any petition or answer seeking reorganization, liquidation or similar relief or files an answer admitting the material allegations of a petition against it for any such relief; or (d) appoints a receiver or trustee for all or a part of its assets, business, or property.

11.3. Post Termination. Upon termination of this Agreement for any reason, You shall:

11.3.1. no longer have rights to any and all of the Proprietary Information and or other Intellectual Property of ZimVie Dental; and

11.3.2. immediately cease using all Proprietary Information, return to ZimVie Dental all tangible Proprietary Information provided to You by or on behalf of ZimVie Dental, and permanently delete and remove from Your databases and systems any intangible Proprietary Information; and upon request by ZimVie Dental, shall certify in writing to ZimVie Dental that such obligations have been complied with.

11.4. Survival. All payment obligations of You to ZimVie Dental and each provision in the Sections 8 – 15 of this Agreement will survive the expiration or termination of this Agreement. 

12.  Confidentiality.

12.1. Announcement. Except as specifically set forth in this Agreement, You shall not release any public announcement with respect to this Agreement or the terms or conditions of this Agreement without the prior, express written consent of ZimVie Dental.

12.2. Confidential Information. For purposes of this Agreement, “Confidential Information” means any and all information that any party (as “Discloser”) discloses to the other party (as “Recipient”), and any derivatives thereof, which is confidential and proprietary in nature (for avoidance of doubt, ZimVie Dental’s Encode CAD Libraries are hereby designated as Confidential Information of ZimVie Dental). Confidential Information does not include information which (i) is now or subsequently becomes generally available to the public without a breach of this Agreement by the Recipient; (ii) the Recipient can demonstrate as having in the Recipient’s lawful possession prior to disclosure by the Discloser; or (iii) the Recipient receives from a Third Party without such disclosure being subject to restrictions of confidentiality.

12.3. Non-Disclosure and Non-Use of Confidential Information. The Recipient agrees that the Recipient shall not, and shall cause the Recipient’s Representatives not to, directly or indirectly, without the prior written consent of the Discloser (which consent may be withheld at the sole discretion of the Discloser): (i) disclose, release or otherwise make available any Confidential Information to any third-party (person or entity); (ii) disclose, release or otherwise make available any Confidential Information (through idle gossip or other dissemination) to the Recipient’s Representatives who do not need to know such information to meet the Recipient’s obligations pursuant to this Agreement; or (iii) use any Confidential Information, except specifically and solely related to meeting the Recipient’s obligations pursuant to this Agreement. The Recipient agrees that the Recipient is responsible for any breach of this Agreement by its Representatives.

12.4. Disclosures. The Recipient may disclose Confidential Information pursuant to a court order; provided, however, the Recipient must provide the Discloser with sufficient notice for the Discloser to challenge the request for disclosure of such Confidential Information prior to such disclosure, unless the Recipient is prohibited from providing such notice by court order or request by law enforcement. The Recipient shall promptly notify the Discloser of any known unauthorized use or disclosure of Confidential Information, and the Recipient shall promptly take any and all reasonable efforts to prevent further unauthorized use or disclosure of such Confidential Information and any other Confidential Information.

12.5. Return of Confidential Information. Upon the earlier of the termination of this Agreement or the request of the Discloser, the Recipient shall promptly return to the Discloser, or certify to the Discloser as being destroyed, all originals, copies, reproductions and reductions to writing and/or an electronic format of any and all Confidential Information which the Recipient has received, obtained and/or created.

13. Indemnification.

13.1. ZimVie Dental. ZimVie Dental shall defend, indemnify and hold You and each Your Representative harmless from and against any and all Claims that You or any You Representative may incur and arising out of any breach by ZimVie Dental of its representations, warranties or covenants under this Agreement.

13.2. Licensee. Licensee shall defend, indemnify and hold ZimVie Dental and each ZimVie Dental Representative harmless from and against any and all Claims that ZimVie Dental or any ZimVie Dental Representative may incur and arising out of (i) any breach by You of Your representations, warranties or covenants under this Agreement, and (ii) any bodily injury or property damage to others caused by any defect in Your design of any Encode Abutments.

13.3. Terms and Conditions.

13.3.1. Control of Defense and Costs. Indemnifying Party shall assume control of the defense of Claims, and in connection with such defense shall appoint lead counsel for such defense, in each case at Indemnifying Party’s sole cost and expense. Indemnifying Party shall not enter into any settlement or compromise of any Claim without the applicable Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed. The existence or non-existence of insurance shall in no manner affect Indemnifying Party’s obligations under this Section.

13.3.2. Notice. Indemnified Party shall give prompt written notice to Indemnifying Party of any Claim; provided, however, failure to give prompt written notice shall not relieve Indemnifying Party of any liability under this Agreement, except to the extent Indemnifying Party demonstrates that the defense of such Claim is materially prejudiced by such failure.

13.3.3. Cooperation. An Indemnified Party shall reasonably cooperate with Indemnifying Party in the defense or prosecution of a Claim at Indemnifying Party’s sole cost and expense.

13.3.4. Participation. An Indemnified Party shall have the right to participate, at its own cost and expense, in the defense and settlement of any Claim and to employ counsel of its choice for such purpose; provided, however, Indemnifying Party shall pay the reasonable fees, costs and expenses of such separate counsel incurred by the Indemnified Party if, following the Indemnified Party providing prior written notice of such Claim to Indemnifying Party (i) Indemnifying Party shall wrongly fail or refuse to acknowledge that it has an indemnity obligation for such Claim, and such failure or refusal may materially affect the ability of the Indemnified Party to defend the Claim; or (ii) representation of both Indemnifying Party and the Indemnified Party by the same counsel would, under applicable code or rules of professional conduct or responsibility, create a conflict of interest. 

14. Governing Law.  This Agreement is governed by and shall be construed in accordance with the internal laws of the State of Florida, USA, without giving effect to principles of conflicts of law. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. The parties agree that any legal action relating to this Agreement shall be commenced and maintained before any appropriate state court of record in Palm Beach County, Florida, or, if necessary, the United States District Court for the Southern District of Florida, and the parties hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise raise questions of personal jurisdiction or venue in any action commenced or maintained in such courts.

15. General Provisions.

15.1. Entire Agreement. This Agreement represents the complete agreement between the parties with respect to the subject matter set forth in this Agreement, and this Agreement replaces and supersedes all prior and contemporaneous written and oral agreements or statements by and among the parties with respect to licensing the Proprietary Information. This Agreement may only be amended, changed or modified by a written document executed by both parties. In the event it is necessary to construe the terms and conditions of this Agreement, it will be done without giving any consideration or effect as to which party may have drafted this Agreement. The parties acknowledge that all the terms of this Agreement were negotiated at arm’s length and that this Agreement, and all documents executed in connection with this Agreement were prepared and executed without duress, undue influence or coercion upon any party. If any provision of this Agreement or the application of such provision to any person, entity or circumstance is held invalid, illegal or unenforceable, the remainder of this Agreement or the application of such provision to persons, entities or circumstances other than those to which it is held invalid, illegal or unenforceable will not be affected thereby. The terms and conditions of this Agreement will control over any conflicting or additional terms set forth in a Purchase Order. If there is a conflict between the terms of this Agreement and any Purchase Order, then the terms of this Agreement will govern unless the existence of the conflict is specifically referenced in the Purchase Order as a conflict and a duly authorized officer of ZimVie Dental executes a written amendment to this Agreement specifically accepting the conflict in the Purchase Order.

15.2. Incorporation. The exhibits and schedules referred to in and attached to this Agreement are true and correct and are hereby incorporated into this Agreement by reference.

15.3. No Waiver. No provision of this Agreement may be waived, changed, modified or discharged without an agreement in writing signed by the party against whom enforcement of such waiver, change, modification or discharge is sought, and then such waiver, change, modification or discharge shall be effective only in the specific instance and for the specific purpose for which given.

15.4. Assignability. You may not assign or transfer this Agreement (in whole or part) or any of Your rights or obligations hereunder. Any purported assignment by the You shall be null and void.

15.5. Successors and Assigns. This Agreement shall be binding upon the parties and their respective successors and permitted assigns and shall inure to the benefit of the other party and its respective successors and permitted assigns.

15.6. Relationship of Parties. This Agreement does not in any way create a joint venture, partnership, representation or principal and agent relationship between the parties. Neither party shall have the power or ability to pledge the credit of the other party, nor to (i) assume or create any obligation in the name of or on behalf of the other party; or (ii) bind or create a liability against the other party in any way for any purpose.

15.7. Force Majeure. Except for any payment obligation pursuant to this Agreement, neither party will be responsible for failure to perform an obligation pursuant to this Agreement as a result of a Force Majeure Event; provided, however, (i) a party shall promptly notify the other party of any such Force Majeure Event; (ii) the affected party shall promptly resume performing upon the end of such Force Majeure Event; and (iii) the other party may terminate this Agreement (without any liability) if the affected party fails to resume performance within twenty (20) days of receipt of notice from the other party to resume performance.

15.8. Notices. All notices required pursuant to this Agreement shall be delivered in writing by (i) hand-delivery; (ii) nationally recognized overnight delivery service; or (iii) e-mail with verification of receipt. All such notices shall be addressed to the other party at the address set forth in this Agreement or to such other address as a party may designate by notice complying with the terms of this Section. Each such notice shall be deemed delivered (i) if by hand-delivery, on the date delivered or delivery is attempted if refused; (ii) if by nationally recognized overnight delivery service, on the date delivered or delivery is attempted if refused; or (iii) if by e-mail, upon verification of receipt.

15.9. Further Assurances. Upon request by either party, the other party shall execute and deliver to the requesting party such further instruments which are reasonable and necessary to effectuate this Agreement. On request and during regular business hours, You shall permit ZimVie Dental to audit and inspect, at its own expense, Licensee’s books, records and other documents as necessary to verify compliance with the terms and conditions of this Agreement.