Level Up^TM Program
Terms and Conditions

The following terms and conditions (“Terms and Conditions”) govern the products being sold and services being provided by Hybridge, LLC (“Hybridge”) under its proprietary Level Up^TM educational support and training program (the “Program”) to the dental practitioner (“Doctor”) in accordance with an Order Form signed by the Doctor and submitted to, and accepted by Hybridge (“Order Form”). The Order Form will be deemed accepted by Hybridge on the date submitted unless the Doctor is notified by Hybridge within three (3) business days of its rejection. Upon Hybridge’s acceptance of the Order Form submitted by the Doctor, the Doctor and Hybridge shall be contractually bound by the Order Form and these Terms and Conditions, which shall collectively constitute the agreement between them (collectively, the “Agreement”) for the purchase and sale of the ordered Level Up^TM products and services. Additional Hybridge products and services beyond those purchased pursuant to the Order Form may be purchased from Hybridge pursuant to separate purchase orders submitted by the Doctor to Hybridge which are accepted by Hybridge.

1. Order Form: Pursuant to the Order Form, the Doctor has agreed to participate in the Program and purchase products and services specified in the Order Form. In consideration of the Doctor participating in the Program, the Doctor agrees to pay all of the fees and charges set forth in the Order Form (the “Program Fees and Charges”), which, unless earlier due as provided below, shall be due and payable as set forth in the Order Form.

2. Subscription Term: The Agreement shall become effective on the date the Order Form is accepted by Hybridge and, unless earlier terminated by Hybridge in accordance with these Terms and Conditions, shall remain in effect for the Subscription Term set forth in the Order Form. The Doctor does not have the right to terminate the Subscription Term. Upon termination of the Subscription Term, Hybridge’s obligation to make available to the Doctor the Program and the services provided for in the Order Form shall immediately terminate, and all other provisions of the Agreement shall remain in full force and effect. Notwithstanding the termination of the Subscription Term, the Doctor shall have the right to receive the purchased products provided the Doctor requests delivery thereof prior to the last day of the original Subscription Term. If the Doctor does not request delivery of the purchased products on or prior to such date, the Doctor shall no longer have a right to receive such products.

3. Control and Non-Exclusivity: Hybridge shall solely determine the means and methods it shall use in providing the Program, including, without limitation, the contents, tools, and staffing necessary as part of the Program. Hybridge reserves the right to retain any third-party contractors, vendors, or service providers that it deems necessary to assist in such work. The Doctor understands that Hybridge provides Level Up educational support and training products and services to other dental practitioners and, accordingly, neither the Program nor any of its products or services are exclusive to the Doctor. The Doctor further understands and acknowledges that other dental practitioners subscribing to and utilizing the Program may be competitive with the Doctor.

4. Payment Terms:

4.1 Credit Card Access and Maintenance. To the extent that the Doctor uses a credit card to pay Hybridge the Program Fees and Charges, the Doctor agrees to maintain with Hybridge such credit card or a replacement credit card which Hybridge is authorized to access to process and collect payment of the Program Fees and Charges due Hybridge until they have been paid in full and any failure to do so will or if at any time Hybridge is otherwise unable to process such payment transactions, will constitute a breach of this Agreement, and permit Hybridge to immediately terminate the Subscription Term, without prejudice to any other rights that Hybridge may have, upon written notice to the Doctor. The Doctor further agrees to promptly notify Hybridge in writing of any changes as to the status or validity of any such credit card maintained with Hybridge, including, but not limited to, expiration date changes, cancellation, or replacement of the credit card. Any usage, sales, or other taxes levied by any governmental agency or authority based on the provision of the Program products and services shall be paid by the Doctor, whether or not identified on the Order Form. No refunds of any Program Fees and Charges paid by the Doctor to Hybridge will be due to the Doctor under any circumstances, including upon termination of the Subscription Term.  

4.2 Acceleration. All payments of the Program Fees and Charges are due upon the dates set forth in the Order Form, and payments not received within forty-five (45) days of such date shall be subject to a late charge in the amount of one and one-half percent (1.5%) of the unpaid amount for each month (or partial month) such amount remains unpaid (or the highest amount allowed by law, if less). Furthermore, if any Program Fees and Charges are not paid when due as a result of Hybridge being unable to process payments through the Doctor’s credit card or otherwise, Hybridge may accelerate the payment of all Program Fees and Charges that are payable under the Agreement for the entire Subscription Term but which have not yet been paid and to demand payment thereof be made by the Doctor within five (5) days after written notice; provided that, if the Doctor pays all delinquent Program Fees and Charges prior to the fifth (5th) day after such notice, then such acceleration shall be withdrawn by Hybridge upon written notice to the Doctor, without any prejudice to Hybridge’s right to exercise the right of acceleration again in the future. The Doctor acknowledges that Hybridge has expended substantial effort and expense in developing the Program and committing to make available the products and services during the Subscription Term in reliance on the Doctor’s commitment to the Program represented by this Agreement, and any termination of the Subscription Term prior to the expiration of the twelve (12) month period thereof will cause substantial hardship to Hybridge as a result. Accordingly, the Doctor agrees that the payment of all of the Program Fees and Charges in such circumstances is intended to compensate Hybridge and that such payment is reasonable under the circumstances and not a penalty.

5. Confidentiality and Proprietary Rights:

5.1 Confidentiality. The Doctor acknowledges that the Program will contain valuable trade secrets and other confidential information of Hybridge, which is not otherwise publicly available. All such information shall be deemed “Confidential Information” unless such information is (a) in the public domain through no fault of the Doctor as shown by documentation, (b) was independently developed by the Doctor as shown by documentation, or (c) was already known by the Doctor prior to the submission of the Order Form to Hybridge as shown by documentation. The Doctor shall have the burden of establishing any of the foregoing exceptions to the definition of Confidential Information that he asserts.

5.2 Non-Disclosure. The Doctor agrees that he will not, and will cause his dental practice not to, at any time during or after the Subscription Term, disclose any Confidential Information to any person, and that upon termination of the Subscription Term, he will immediately return to Hybridge anything containing or reflecting the Confidential Information in his possession or control.

5.3 Proprietary Rights. The Doctor acknowledges and agrees that the Program and all materials, products, inventions, works, and deliverables developed or prepared by Hybridge in connection with the Program and the products delivered and services rendered by Hybridge in connection therewith are the property of Hybridge and that Hybridge has sole title and interest thereto or Hybridge has the legal rights under a separate agreement for the use of the materials, products, inventions, works, and deliverables. These rights include patent rights, copyright, derivative rights, trade secrets, and trademarks or service marks. Hybridge grants the Doctor a limited revocable, non-exclusive, non-transferrable, non-assignable, non-sublicensable license to use in his dental practice during the Subscription Term any of Hybridge’s intellectual property rights developed or prepared for or provided to the Doctor under the Program other than Hybridge’s trademarks or service marks which Hybridge may make available to the Doctor under a separate written license agreement and the terms and conditions stated therein.

5.4 Remedies for Violation of Section 5. The Doctor acknowledges that remedies at law would be inadequate to protect Hybridge against any actual or threatened breach of any of the provisions of this Section 5 by him or his dental practice and, without prejudice to the rights and remedies otherwise available to Hybridge, in the event of any such breach or threatened breach, the Doctor agrees to the granting of injunctive relief in Hybridge’s favor and against the Doctor and his dental practice to restrain any such breach or threatened breach (including pursuant to a temporary restraining order, preliminary injunction, and permanent injunction) without proof of actual damages and to waive any requirement for the securing or posting of any bond in connection with such remedy.

6. Non-Disparagement of Hybridge: The Doctor hereby agrees that during the Subscription Term and following the termination thereof the Doctor will not, and will cause his dental practice not to, disparage, denigrate, or comment negatively upon Hybridge or any of Hybridge’s directors, members, managers, officers, employees, agents, or representatives (collectively, the “Hybridge Parties”), either orally, in writing, electronically, by the use of social media, or in any other manner whatsoever, to any person or entity.

7. Indemnity and Limitation of Liability: The Doctor shall indemnify, defend, and hold harmless the Hybridge Parties from and against any and all claims, causes of actions, damages, injuries, suits, losses, debts, liabilities, obligations, damages, costs, fees, and expenses of every kind and description or nature whatsoever, including reasonable attorneys’ fees, to the extent resulting from, arising out of, or caused by the acts or omissions of the Doctor or anyone under his supervision or control.

8. DISCLAIMER OF ALL WARRANTIES: THE DOCTOR ACKNOWLEDGES AND AGREES THAT HYBRIDGE HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND TO THE DOCTOR REGARDING THE PROGRAM AND THE SERVICES AND PRODUCTS TO BE PROVIDED TO THE DOCTOR IN CONNECTION THEREWITH AND THE DOCTOR HAS NOT RELIED ON ANY REPRESENTATIONS OR WARANTIES MADE BY HYBRIDGE IN DECIDING TO SUBMIT THE ORDER FORM AND PARTICIPATE IN THE PROGRAM OR TO USE ANY PRODUCTS OR SERVICES AVAILABLE IN THE PROGRAM. WITHOUT LIMITING THE FOREGOING, HYBRIDGE DOES NOT WARRANT THAT THE PROGRAM WILL MEET THE DOCTOR’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM AND THE DOCTOR’S USE OF ANYTHING HE MAY LEARN AT THE PROGRAM OR THE HYBRIDGE PRODUCTS IS WITH THE DOCTOR IN HIS SOLE PROFESSIONAL OPINION AND JUDGMENT. HYBRIDGE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE PROGRAM AND THE PROGRAM PRODUCTS AND SERVICES. THE DOCTOR FURTHER AGREES THAT HYBRIDGE SHALL NOT HAVE ANY LIABILITY FOR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR ANY SIMILAR DIRECT OR INDIRECT DAMAGES AND THAT ANY LIABILITY HYBRIDGE OR ANY OF THE HYBRIDGE PARTIES MAY HAVE TO THE DOCTOR SHALL BE LIMITED TO THE PROGRAM FEES AND COSTS PAID TO HYBRIDGE BY THE DOCTOR DURING THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF ANY CLAIM AGAINST ANY OF THE HYBRIDGE PARTIES.

9. Force Majeure: Hybridge will not be liable for, considered to be in breach of, or in default under this Agreement on account of, any delay or failure to perform in connection with the Program or any of the Program products and services as a result of any causes or conditions that are beyond Hybridge’s reasonable control (each a “Force Majeure Event”). If any Force Majeure Event occurs, Hybridge will give prompt written notice thereof to the Doctor.

10. Notices: All notices and other communications hereunder shall be given in writing to the other party at the addresses provided below and shall be deemed to have been duly given and effective (a) upon receipt, if delivered in person, (b) by e-mail, (c) one (1) day after deposit prepaid for overnight delivery with a national overnight express delivery service, or (d) three (3) days after deposit with the United States Postal Service, with prepaid registered or certified mail. All notices to the Doctor shall be delivered to the mailing address or e-mail address set forth on the Order Form or such address as he may give Hybridge notice of in accordance with this Section 10. All notices mailed to Hybridge shall be delivered to Hybridge at 175 Humboldt Street, Rochester, New York, attention President, or e-mailed to gknaak@hybridgeimplants.com and kmcareavy@hybridgeimplants.com or such other address as Hybridge may require by written notice to the Doctor.

11. Assignability: The Doctor may not assign this Agreement or any of his rights and obligations hereunder to any third party without the prior express written consent of Hybridge (which it may grant, withhold, delay, or condition in its sole discretion). Hybridge may at any time, with or without notice to the Doctor, transfer and assign all of its rights under this Agreement to any affiliate or related party or any third party purchaser of substantially all of the assets of Hybridge. Upon any such transfer and assignment to a third party purchaser, Hybridge shall be released of all obligations and liabilities under this Agreement without any further action required by either of the parties.

12. Third Party Beneficiary: Hybridge licenses from SMC National, Inc., a Delaware corporation (“SMC”), a learning management system currently called the Full Arch Advantage LMS, which is available to the Doctor as part of the Program’s products and services. The Terms of Use for SMS’s Full Arch Advantage LMS may be modified from time to time by SMC (collectively, the “SMC Terms of Use”). The Doctor acknowledges that it is subject to the SMC Terms of Use, which it has reviewed, and that it will fully comply therewith at all times. SMC is made a third party beneficiary of the Agreement with respect to this Section 12 and may directly enforce the SMC Terms of Use against the Doctor and his dental practice.

13. Relationship of Parties: The relationship of the parties hereunder is that of independent contractors and nothing in this Agreement is intended to, nor shall be construed to, create a partnership, agency, franchise, joint venture, employment, or similar relationship.

14. Applicable Law: This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of laws. Any case, controversy, suit, action, or proceeding arising out of, in connection with, or related to, this Agreement or otherwise involving Hybridge shall be brought in any federal or state court located in Monroe County, New York. The Doctor hereby irrevocably consents to the jurisdiction and venue of such courts. In the event it is necessary for Hybridge to enforce any provision of the Agreement, it shall be entitled, in addition to such sums or damages as may be due under the Agreement or such other relief to which it may be entitled, to reimbursement of reasonable attorneys’ fees as well as court costs and all other reasonable expenses of enforcement or collection incurred by it.

15. Amendments and Modification: The Doctor understands that Hybridge may modify these Terms and Conditions and the Program product and/or service offerings from time to time during the Subscription Term. No other modification, amendment, supplement to, or waiver of this Agreement or any of its provisions shall be binding upon the parties hereto unless made in writing and duly signed by both of the parties to this Agreement.

16. No Waiver: No action of Hybridge, other than express written, signed waiver may be construed as a waiver of any part of this Agreement by Hybridge, and no employee of Hybridge is authorized to make an oral waiver of any term or condition of this Agreement or any breach or default of this Agreement by the Doctor.

17. Severability: In the event that any clause, term, or provision of this Agreement is found to be unenforceable or otherwise disfavored under law or public policy such that a court would not enforce the same, then, at Hybridge’s election, the same shall be severed from this Agreement and the remainder of the Agreement shall remain in full force and effect and applied in a manner which most closely fulfills the original intent of the parties.

18. Entire Agreement: This Agreement is in addition to the Standard License Agreement between Hybridge and the Doctor and any separate written license agreement executed by Hybridge and the Doctor, including but not limited to the Full Arch Web Content License Agreement referred to in the Order Form when signed by the Doctor. These Terms and Conditions together with the Order Form and the Full Arch Web Content License Agreement when signed by the Doctor constitute the entire agreement between Hybridge and the Doctor with respect to the Program and supersedes all previous agreements, promises, representations, understandings, and negotiations, whether written or oral, with respect to the Program.

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