Effective Date: January 20, 2021.
This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) and Cloud Dentistry, LLC (“Company”, “we,” or “us”). You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.CloudDentistry.com, all affiliated websites owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”), all services, applications and tools that are accessible through the Site and all Company mobile applications that link to or reference this Agreement (“Site Services”), whether provided by us or our Affiliates. To the extent permitted by applicable law, Company may amend this Agreement without prior notice to you at any time by posting a revised version on the Site. Any revisions to this Agreement will take effect when posted on the Site unless otherwise stated. Your continued use of the Site or the Site Services after the effective date of a revised version of this Agreement constitutes your acceptance of its terms and agreement to be bound by its terms. This Agreement includes and hereby incorporates by reference the agreements and Site usage polices linked elsewhere on the Site, as such agreements and policies may be modified by Company from time to time in its sole discretion (collectively, the “Terms of Service”). In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control.
Capitalized terms are defined throughout this Agreement and in Section 24 (Definitions).
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY.
1. Creation of Account with Company
a. To use the Platform, User must register for an account (an “Account”) by completing the account registration form on the Platform. Company offers the Platform for User’s business purposes, and not for personal, household, or consumer use. User must have, and hereby represent that it has, an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation or other entity). To register for an Account, User must be and hereby represents that User is a legal entity or an individual 18 years or older who can form legally binding contracts. By registering for an Account, User agrees to: (i) abide by this Agreement and the processes, procedures, and guidelines described on the Platform; (ii) be financially responsible for User’s use of the Platform and the purchase and/or delivery of Provider Services, as applicable; and (iii) perform User’s obligations as specified by any Match Agreement that User accepts, unless such obligations are prohibited by applicable law or this Agreement. Company reserves the right, in its sole discretion, to refuse, suspend, or revoke User’s access to the Platform upon discovery that any information User provided on any form or posted on the Platform is not true, accurate, or complete, or otherwise violates this Agreement, or for any other reason or no reason in Company's sole discretion.
b. User represents that it is a citizen or resident of the state or province (either, a “state”) indicated during its site registration and will use the Site Services only in connection with User’s professional services performed in said state. User represents it will not use the Site Services outside of the U.S or Canada. User further represents that User is not: (i) a citizen or resident of a geographic area in which access or use of the Platform is prohibited by applicable law, decree, regulation, treaty, or administrative act; (ii) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (iii) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation.
c. User agrees to provide true, accurate, and complete information on all registration and other forms User accesses on the Platform or provides to Company and to update User’s information to maintain its truthfulness, accuracy, and completeness. User must not provide false or misleading information about User’s location. User must not provide false or misleading information about User’s business or the services User’s business provides. User must not register for more than one Practice Account and one Provider Account without express written permission from Company. Solely for purposes of the foregoing sentence, “User” means you, any member of User’s immediate family, and any entity directly or indirectly controlled by you or any member of User’s immediate family.
d. When User registers for an Account and from time to time thereafter, User’s Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm User’s identity. User authorizes Company, directly or through third parties, to make any inquiries necessary to validate User’s identity and confirm User’s ownership of User’s email address or financial accounts, subject to applicable law. Failure to provide Company information about User and User’s business when requested is a violation of this Agreement.
e. When User registers for an Account, User will be asked to choose a username and password for the Account. User is entirely responsible for safeguarding and maintaining the confidentiality of User’s Account username and password. User authorizes Company to assume that any person using the Platform with User’s username and password either is User or is authorized to act for User. User agrees to notify Company immediately if User suspects or becomes aware of any unauthorized use of User’s account or any unauthorized access to User’s password or the password of any User of User’s Account.
2. Digital Signature.
By registering for an Account, User is deemed to have executed this Agreement electronically, effective on the date User registers its Account, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). User’s Account registration constitutes an acknowledgement that User is able to electronically receive, download, and print this Agreement.
3. Consent to Electronic Records.
a. In connection with this Agreement, User may be entitled to receive certain records, such as contracts, notices, and communications, in writing. To facilitate User’s use of the Platform, User gives Company permission to provide these records to User electronically instead of in paper form.
b. By registering for an Account, User consents to electronically receive and access, via email or the Platform, all records and notices for the services provided to User under this Agreement that Company would otherwise be required to provide to User in paper form. However, Company reserves the right, in its sole discretion, to communicate with User via the U.S. Postal Service and other third-party mail services using the address under which User’s account is registered. User’s consent to receive records and notices electronically will remain in effect until User withdraws it. User may withdraw User’s consent to receive further records and notices electronically at any time by contacting Customer Support at firstname.lastname@example.org. If User withdraws User’s consent to receive such records and notices electronically, Company will revoke User’s access to the Platform and its services, and User will no longer be able to use the Platform or its services. Any withdrawal of User’s consent to receive records and notices electronically will be effective only after Company has a reasonable period of time to process User’s request for withdrawal. Please note that User’s withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by Company to User prior to the withdrawal of User’s consent becoming effective.
c. In order to ensure that Company is able to provide records and notices to User electronically, User must notify Company of any change in User’s email address by updating User’s Account information on the Platform or by contacting Customer Support.
d. To access and retain the records and notices Company provides to User electronically, User will need: (i) a valid email address; (ii) a computer system that operates on a platform like Windows or Mac; (iii) a connection to the Internet; (iv) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Platform (Users utilizing other browsers may experience compatibility difficulties); (v) a Current Version of a program that accurately reads and displays PDF files, such as Adobe Acrobat Reader version 7 or higher; (vi) a computer or device and an operating system capable of supporting all of the above; and (vii) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. “Current Version,” as used herein, shall mean a version of the software that is currently being supported by its publisher. User should retain a copy of all of the records and notices Company sends to User electronically. By accepting and agreeing to this Agreement electronically, User represents that (i) User has read and understands the above consent to receive records and notices electronically; (ii) User satisfies the minimum hardware and software requirements specified above; and (iii) User’s consent will remain in effect until User withdraws User’s consent as specified above.
4. Platform and Matching.
a. Company provides an online platform, available at www.CloudDentistry.com (the “Platform”), through which participating dental offices (“Practices”) and participating dental service providers (“Providers”) can identify each other online to buy and sell dental services (“Provider Services”). Subject to the terms of this Agreement, Company provides the Platform services to Practices and Providers, including hosting and maintaining the Platform, enabling the formation of Match Agreements between Practices and Providers, and managing disputes related to those Match Agreements. As used in this Agreement, the term “Providers” refers to the following independent dental contractors registered on the Platform: (i) a dental specialist or resident in a dental specialist program (either one, a “Specialist”), (ii) a dentist (a “Dentist”) who renders general dental services, (iii) a registered dental hygienist (a “Hygienist”) who performs dental hygiene and cleaning, (iv) a dental assistant (an “Assistant”) who renders chair-side dental assistance, or (v) an office or administrative assistant (an “Office Assistant”) who renders front office or administrative assistance.
b. Practice may use the Platform to search for available Providers based on desired dental services and geography (each, a “Search”). Upon receiving a Search, the Platform will attempt to locate and display available Providers that match the Search parameters (the “Search Results”). Company makes no representations, warranties or guarantees as to the Search Results or availability of Providers. A Practice may submit a request (“Request”) to a Provider, in the Search Results, to provide the desired service, by clicking the “Book Appointment” button, or its equivalent, for the indicated Provider. The submission of a Request is in the sole discretion of Practice. Practice is under no obligation to retain any Provider presented to it by Company. Practice’s submission of a Request constitutes an offer to enter into a binding agreement with Provider, according to the terms of the Request and this Agreement. Practice may cancel the Request anytime prior to a Provider’s acceptance of the Request.
c. A Provider must, within twenty-four (24) hours of receiving a Request, either confirm or decline the appointment, in its sole discretion. Users acknowledge and agree that, when a Provider accepts a Request, Practice and Provider will be deemed to have entered into a binding agreement (the “Match Agreement”) with each other, comprised of the conditions or contractual provisions in the Request and this Agreement (the transaction, collectively, a “Match”). Users acknowledge and agree that Company is not a party to any Match Agreement, except as a third-party beneficiary.
5. User Obligations in a Match.
a. Practice Obligations – For any Match, Practice shall:
- (1) be responsible, prior to the scheduled Match date, for preparing the patients for treatment. How to prepare a patient for treatment shall be in the Practice’s sole discretion, and may include (i) discussing the financial terms, (ii) discussing insurance coverage, and (iii) delivering treatment forms to the patient.
- (2) be responsible for the sterilization of equipment.
- (3) be the patient’s point of contact for all non-emergency patient inquiries.
- (4) be responsible for maintaining the patient records related to any Match for the longer of five years or as required by law, and shall provide said records promptly to the treating Provider upon Provider’s request. Under no circumstances will Practice share any patient records with Company, except as specifically authorized by this Agreement. Company is not permitted to have and shall not maintain any patient records or files, except as specifically set forth in this Agreement.
- (5) Be responsible for performing any post-operative or post-treatment patient checks that, in the Practice’s professional judgment, are reasonably necessary.
- (6) retain the following records and provide them to Company upon Company’s request: (i) voided copies of the check(s) or other proof of payment for all payments made to Provider, and (ii) a receipt or other documentation evidencing the total amount of money collected from the patient or the patient’s insurance for the service(s) rendered in connection with the Match.
- (7) be responsible for billing the patient or the patient’s insurance company for any Provider services.
- (8) be responsible for paying the Provider the agreed fee in accordance with the Match Agreement.
b. Specialist Obligations – For any Match, Specialist shall:
- (1) be responsible for obtaining the patient’s informed consent concerning Specialist’s independent contractor status and the fee sharing arrangement between Practice and the Specialist.
- (2) be responsible for handling any post-operative complications from a Match. If the post-operative complications are handled at the Practice’s location, then Practice and Specialist will share the revenues from any treatments addressing post-operative needs in accordance with the percent share in the Match Agreement for the service or procedure giving rise to the post-operative treatment. If the post-operative complications are handled at the Specialist’s office, the Specialist will retain all revenues from any treatments addressing these post-operative needs.
c. Specialist or Dentist Obligations – For any Match, Specialist and Dentist shall:
- (1) Be responsible for patient care, including confirmation of diagnosis, documentation of care sufficient to allow continuity of patient care, and performance of the procedure(s) and/or treatment(s) that Specialist or Dentist, in his or her independent professional judgment, deems necessary.
- (2) be responsible for providing any tools, equipment or assistants that Specialist or Dentist, in his or her professional judgment, deems reasonably necessary to perform the requested service(s), other than general dentistry tools and assistants.
- (3) be responsible for (i) obtaining the patient’s informed consent concerning the treatment, treatment benefits and treatment risks, (ii) providing post-operative instructions, and (iii) providing on-call contact information for patient emergencies.
d. For any Match, Hygienist, Assistant or Office Assistant is responsible for performing the duties assigned by the Practice, in accordance with their own professional judgment, so long as they fall within the general responsibilities of hygienists, assistants and office staff for dental practices.
6. Relationship of Parties.
a. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement. Practice and Provider shall each be solely responsible for their respective employees and agents and their labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of their respective activities, or those of their respective employees or agents, in the performance of this Agreement. Practice assumes all liability for determining whether Providers are independent contractors or employees and engaging them accordingly; Company disclaims any liability for such determination. In the event a Provider determines that his or her relationship with a Practice is anything other than that of an independent contractor, the Provider must refrain from entering into any Match Agreements through the Platform with said Practice.
b. Company is not a party to the dealings between Practice and Provider, including screening selection, contracting, and performance of Provider Services. Company does not introduce Providers to Practices or help Providers find Requests. Company merely makes the Platform services available to enable Providers to identify and determine the suitability of Practices for themselves and to enable Practices to identify and determine the suitability of Providers for themselves. Company does not, in any way, supervise, direct, or control Provider or Provider's work. Company does not set Provider's work hours, work schedules, or location of work, or rates charged. Company will not provide Provider with training or any equipment, labor, or materials needed for a particular Match Agreement. Company does not provide the premises at which Provider will perform the work. Company makes no representations about, and does not guarantee the quality, safety, or legality of, Provider Services; the truth or accuracy of Provider's listings on the Platform; the qualifications, background, or identities of Users; the ability of Providers to deliver Provider Services; the ability of Practices to pay for Provider Services; or that a Practice or Provider can or will actually complete a transaction.
c. Company does not deduct any amount for withholding, unemployment, Social Security, or other taxes for Practice or Provider; each of which is solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority in any nation with respect to Provider's performance, and Practice's acceptance, of Provider Services.
d. Each party shall be responsible for its own taxes incurred in the performance of this Agreement, including without limitation, property, sales and use taxes, value-added taxes and similar taxes, duties and government charges.
e. User hereby represents that the execution, delivery and performance by User of this Agreement and its compliance with the terms and provisions hereof does not and will not conflict with or result in a breach or violation of or default under any oral or written agreement, understanding or arrangement.
f. User shall retain full and complete autonomy and discretion in the diagnosis and treatment of any dental disease, disorder or physical condition, and shall at all times remain free to exercise his or her own independent judgment, including whether and to whom referrals for specialty dental work are made. User acknowledges that this Agreement does not impede upon User’s professional judgment and that User remains free to use its professional judgment.
g. Except as described in this section, the parties acknowledge and agree that no patient information shall be exchanged in any manner with Company. A Practice may communicate patient information to a Specialist via the Platform, but only as necessary for such Practice and Specialist to determine whether the Specialist is qualified to perform the requested Provider Services and only to the extent such patient information is fully “de-identified” in accordance with HIPAA (as defined below) and any other applicable state and federal laws and regulations. Except as set forth in the foregoing sentence, Users are strictly prohibited from providing any patient information to Company. For the avoidance of doubt, the parties acknowledge and agree that Company has not been engaged by any User to perform any functions involving Protected Health Information (as defined under HIPAA), and Company is not acting as a Business Associate of any Covered Entity in connection with the Site Services.
h. User represents, warrants and covenants that it has complied and shall comply with all laws, rules, regulations and regulatory guidelines, including without limitation all applicable state and federal privacy and data security laws, including without limitation the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (collectively, “HIPAA”), as amended from time to time. User represents, warrants and covenants that it has acted and shall act at all times in accordance with the relevant patient informed consents. User represents, warrants and covenants that it has implemented and shall maintain policies and administrative, physical and technological safeguards to remain in compliance with such laws, and that User has the right to provide any information that it provides or otherwise makes available hereunder. User shall promptly notify Company of any development rendering untrue or misleading the representations, warranties or covenants included in this Section.
7. Payments to Providers
a. Upon completion by Provider of the procedures or services specified by a Match Agreement, Practice shall immediately pay Provider the amount agreed in the Match Agreement, by multiplying the hours actually worked by the Provider’s hourly rate, as listed on the Platform at the time of the Match Agreement. If the Provider worked more hours than agreed in the Match Agreement, for the date in question, then the Match Agreement shall be deemed amended to include the actual hours worked. If, on the Practice’s request, the hours actually worked by the Provider are less than the hours specified by the Match Agreement, then, for purposes of this section, the actual hours worked by the Provider shall be equal to no less than the hours specified in the original Match Agreement minus one hour.
b. In the event Practice cancels a Match Agreement, which has already been accepted by Provider, turns away a Provider that is en route to or already arrived at the Practice, or dismisses a Provider early, Practice shall pay the applicable charge(s) listed in Exhibit B. Cloud Dentistry may remit, in its sole discretion, a portion of this cancellation charge to Provider, for whom the Match Agreement was cancelled, and this shall be Provider’s exclusive remedy for a cancelled Match Agreement.
c. In the event of a payment dispute between a Provider and a Practice, Company shall adjudicate the dispute based solely on Company’s judgment. Company’s resolution of the dispute shall be final and binding on the Provider and the Practice.
d. Company will have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable for money paid to a Provider. Provider will be solely responsible for determining whether it is required by applicable law to issue any formal invoices for Provider fees and for issuing any invoices so required. In the event of an audit of Company, Provider agrees to promptly cooperate with Company and provide copies of Provider's tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Provider is engaging in an independent business as represented to Company.
8. Payor Restrictions.
Practice agrees that it will not, using a Provider found through the Platform, now or in the future, treat any patients, using said Provider, who pay with funds from any federal program of the United States of America, including without limitation Medicare and Medicaid. Company requires strict adherence to this provision, violation of which shall trigger immediate termination of this Agreement, subject to the terms of this Agreement and any survival clauses.
9. Fees Paid to Company.
a. Practice shall pay Company an access fee (the “Fee”) in exchange for access to certain parts and functionalities of the Platform, as set forth in Exhibit B. Practice may select any one, or none, of the access plans listed in Exhibit B. By selecting an access plan through the Platform, Practice hereby agrees to pay the corresponding Fee and authorizes Company to automatically charge Practice’s credit or debit card on file for these Fees when due.
b. If Practice fails to pay any fees owed to a Provider or any amounts due under this Agreement, Company may suspend or close Practice’s account and revoke Practice’s access to the Platform. Company has no obligation to refund any amounts paid by a Practice whose account is subsequently suspended. Without limiting other available remedies, Practice must pay Company upon demand for amounts owed under this Agreement, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, Company may, in its discretion, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
c. The parties agree that any money payable under this Agreement is for access to the Platform only. The parties acknowledge that they are not dividing, sharing, splitting or allocating, either directly or indirectly, any fees for dental services with Company.
d. Users that create an account as a Practice, but who are not a Practice, (any such User, an “Agency”) may only access the platform by paying a monthly access fee in the amount of $5,000 (the “Agency Fee”). Any Agency, by accessing the Platform, agrees to the payment of the Agency Fee.
10. Payment Methods
a. In order to use the Platform, Practice must provide account information for at least one valid Payment Method. The Platform makes the following methods of payment available: credit cards and debit cards. Practice hereby authorizes Company and its Affiliates to run credit card authorizations on all credit cards provided by Practice, to store credit card and banking details as Practice's method of payment for Services, and to charge Practice's credit card (or any other form of payment authorized by Company or mutually agreed to between Practice and Company).
b. By providing Payment Method information through the Platform or Company’s Affiliates, Practice represents, warrants, and covenants that: (i) Practice is legally authorized to provide such information to us; (ii) Practice is legally authorized to perform payments using the Payment Method(s); and (iii) such action does not violate the terms and conditions applicable to Practice's use of such Payment Method(s) or applicable law. When Practice authorizes a payment using a Payment Method via the Platform, Practice represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement cannot be collected from Practice's Payment Method(s), Practice is solely responsible for paying such amounts by other means.
c. Practice hereby authorizes Company to automatically charge Practice’s credit or debit card on file for any amounts owed to Company or to a Provider to whom Practice failed to pay amounts due.
d. Company reserves the right to seek reimbursement from Practice, and Practice will reimburse Company, if Company suspects fraud or criminal activity associated with Practice’s payment, withdrawal, or request, if Company discovers erroneous or duplicate transactions, or if Company has supplied its services in accordance with this Agreement yet Company receives any chargeback from the credit card company, bank, or other payment method as used by Practice.
e. Payment processing services for Users on the Platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continuing to operate as a User on the Platform, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of the Platform enabling payment processing services through Stripe, you agree to provide the Platform accurate and complete information about you and your business, and you authorize the Platform to share it and transaction information related to your use of the payment processing services provided by Stripe.
11. Marketplace Feedback.
a. For the benefit of other Users of the marketplace, Company encourages you to leave objective balanced feedback about Users with whom you have transacted. You acknowledge and agree that feedback results for you will consist of comments and ratings left by other Users and that Company will make available to other marketplace Users a composite feedback number based on these individual ratings. Company provides its feedback system as a means through which Users can share their opinions publicly and Company does not monitor or censor these opinions. Company does not investigate any remarks posted by Users for accuracy or reliability unless a User requests that Company do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of User’s remarks if a court finds that User’s remarks are legally actionable or defamatory. Company is not legally responsible for any feedback or comments posted or made available on the Platform by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Company reserves the right (but is under no obligation) to remove posted feedback or information that in Company's sole judgment violates the Terms of Service or negatively affects our marketplace community or operations.
b. Company is not required to and may not verify any feedback or information given to Company by Providers or Practices, nor does Company perform background checks on Providers or Practices. User hereby acknowledges and agrees that Company may provide information on the Platform about a Provider or Practice, such as feedback, a strength or risk score, geographical location, or verification of identity or credentials. However, such information is based solely on data that Provider or Practice voluntarily submits to Company and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Company; Company provides such information solely for the convenience of Users and specifically disclaims all representations and warranties with respect to the truthfulness, accuracy, and completeness of such information.
a. To the extent a Practice or Provider provides Confidential Information to the other, the recipient will protect the secrecy of the discloser's Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (i) not disclose or permit others to disclose another's Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information; (ii) not use or permit the use of another's Confidential Information, except as necessary for the performance of Provider Services for the relevant Match Agreement (including, without limitation, the storage or transmission of Confidential Information on or through the Platform for use by Provider); and (iii) limit access to another's Confidential Information to its personnel who need to know such information for the performance of Provider Services for the relevant Match Agreement.
b. If and when Confidential Information is no longer needed for the performance of Provider Services for a Match Agreement or at Practice's or Provider's written request (which may be made at any time at Practice's or Provider's sole discretion), the party that received Confidential Information, will, at its expense, promptly destroy or return the disclosing party's Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. The party that received Confidential Information agrees to provide written certification to the party disclosing the Confidential Information of compliance with this subsection within ten days after the receipt of disclosing party's written request for such certification.
c. Without limiting the foregoing, Practice, Provider, and Company will not publish, or cause to be published, any other party's Confidential Information, except as may be necessary for performance of Provider Services for a Match Agreement.
13. Agreement Term and Termination.
a. This Agreement will become effective upon User’s first visit to the Platform and will remain in effect for the duration of User’s use of the Platform. Unless both User and Company agree otherwise in writing, either party may terminate this Agreement in its sole discretion, at any time, without explanation, upon written notice to the other. In the event User properly terminates this Agreement, User’s right to use the Platform is automatically revoked, and User’s Account will be closed; however, (i) if User has any open Requests when User terminates this Agreement, User will continue to be bound by this Agreement until all such Requests have closed on the Platform; (ii) Company will continue to perform those services necessary to complete any open Request or related transaction between you and another User; and (iii) User will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the completion of any open Requests, whichever is later, to Company for any services and to any Providers for any Provider Services. Without limiting any other provisions of this Agreement, the termination of this Agreement for any reason will not release User, any User with whom User has entered into a Match Agreement, or Company from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of the Terms of Service necessary to implement the foregoing survive termination of this Agreement for any reason.
b. Company has the right, but not the obligation, to suspend or revoke User’s access to the Platform and Platform services if Company believes that User has violated or acted inconsistently with the letter or spirit of this Agreement or violated Company’s rights or those of another party. Without limiting Company's other remedies, Company may temporarily suspend, indefinitely suspend, or permanently revoke User’s access to the Platform and refuse to provide any or all Platform services to User if: (a) User breaches the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (b) Company suspects or becomes aware that User has provided false or misleading information to Company; or (c) Company believes, in its sole discretion, that User’s actions may cause legal liability for User, our Users, or Company or our Affiliates; may be contrary to the interests of the Platform or the User community; or may involve illicit activity. Once User’s Account is suspended or closed, User must not continue to use the Platform under the same Account or a different Account or reregister under a new Account without Company's prior written consent. If User attempts to use the Platform under a different Account, Company reserves the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by User to the extent permitted by applicable law. User understands that any closure of User’s Account may involve deletion of any content stored in User’s Account for which Company will have no liability whatsoever.
c. Without limiting Company's other remedies, if User engages in actions or activities that circumvent the Platform or otherwise reduce fees owed Company or Company’s Affiliates under this Agreement, User must pay Company for all fees owed to Company and its Affiliates and reimburse Company for all losses and costs (including any and all time of Company's employees) and reasonable expenses (including attorneys' fees) related to investigating such breach and collecting such fees. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
d. When User’s Account is closed for any reason, User will no longer have access to data, messages, files, and other material User keeps on the Platform.
e. No party to this Agreement shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other party arising from or incident to any termination of this Agreement which complies with the terms of the Agreement whether or not the terminating party is aware of any such damage, loss or expenses.
f. Upon termination or expiration of this Agreement for any reason whatsoever, User (i) shall immediately discontinue any use of the name, logotype, Marks or slogans of Company, (ii) shall immediately discontinue all representations or statements from which it might be inferred that any relationship exists between the parties, (iii) will immediately return to Company all Proprietary Information and any other information or materials of Company.
g. Termination of this Agreement and/or closing of User’s Account will not relieve User of the requirement to pay for Provider Services performed prior to the effective date of the termination or thereafter for any Match Agreements entered into before termination of this Agreement. Except as otherwise required by applicable law, Company will notify User if Company closes User’s Account, unless Company believes, in its sole judgment, that giving notice may cause damage. User acknowledges and agrees that the value, reputation, and goodwill of the Platform depends on transparency of User's Account status to all Users, including both yourself and other Users who have entered into Match Agreements with User. User therefore agrees as follows: IF COMPANY DECIDES TO SUSPEND OR CLOSE USER’S ACCOUNT, COMPANY HAS THE RIGHT BUT NOT THE OBLIGATION TO: (A) NOTIFY OTHER USERS THAT HAVE ENTERED INTO MATCH AGREEMENTS WITH USER TO INFORM THEM OF USER’S SUSPENDED OR CLOSED ACCOUNT STATUS, AND (B) PROVIDE THOSE USERS WITH A SUMMARY OF THE REASONS FOR USER’S ACCOUNT SUSPENSION OR CLOSURE.
h. After this Agreement terminates, the terms of this Agreement that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect.
14. Licenses and Third-Party Content
a. Platform License and Intellectual Property Rights - Subject to and conditioned on compliance with this Agreement, Company grants User a limited license to access and, if User has created an Account, to use the Platform for the purpose of using the services described by this Agreement. User must not access (or attempt to access) the Platform or Platform services by any means other than the interface provided by Company, and User will not use information from the Platform for any purposes other than the purposes for which it was made available. User agrees not to use the Platform for offering any goods or services other than those permitted by this Agreement and in accordance with its terms. User must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Platform in any way for any public or commercial purpose without Company's prior written consent. User must not use any content of the Platform on any other website or in a networked computer environment for any purpose except User’s own viewing. User must not frame or link to the Platform except as permitted in writing by Company. User must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Platform unless expressly permitted by applicable law. User will not access the Platform in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Platform. Company and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Platform and the services it provides. All other product names, company names, marks, logos, and symbols on the Platform may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in this Agreement confers any license under any of Company's or any third party's Intellectual Property Rights, whether by estoppel, implication, or otherwise.
c. Unauthorized Access and Use; Platform Interference; Malicious Software - The Platform contains robot exclusion headers. User agrees that User will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express written permission. User will not access the audiovisual content available on the Platform for any purpose or in any manner other than streaming. User agrees that User will not: (a) take any action that imposes or Company believes may impose (in Company’s sole discretion) an unreasonable or disproportionately large load on the Platform's infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content User has submitted to the Platform) from the Platform, any software code that is part of the Platform, or any services that are offered on the Platform without the prior express written permission of Company and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Platform or any activities conducted on the Platform; (d) bypass any measures Company may use to prevent or restrict access to the Platform or any subparts of the Platform, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Platform or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Platform; (g) collect or harvest any personally identifiable information, including Account names, from the Platform; (h) access any content on the Platform through any technology or means other than those provided or authorized by the Platform; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services. Additionally, User agrees that User will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Platform or the Platform software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow User or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Platform or any other software, firmware, hardware, computer system, or network of Company or any third party.
d. Third-Party Verification - The Platform makes available various services provided by third parties to verify a User's credentials and provide other information. Any information or content expressed or made available by these third parties or any other Users is that of the respective author(s) or distributor(s) and not of Company. Company neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Platform by anyone other than Company's authorized employees acting in their official capacities.
e. Links and Applications - The Platform may contain links to third-party websites. The Platform may also contain applications that allow User to access third-party websites via the Platform. Such third-party websites are owned and operated by the third parties and/or their licensors. User’s access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. User acknowledges and agrees that Company is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites or security or regulatory compliance of such websites. User is responsible for deciding if User wants to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Platform does not imply that Company endorses the linked Platform or application. User uses the links and third-party websites at User’s own risk and agrees that User’s use of an application or third-party website via the Platform is on an “as is” and “as available” basis without any warranty for any purpose.
f. Mobile and Other Devices - When using Company’s mobile applications, please be aware that User’s carrier's normal rates and fees, such as text messaging and data charges, will still apply. Company’s mobile applications may not contain the same functionality available on the Platform. Company may from time to time in its sole discretion develop and provide Platform updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. User agrees that Company does not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. User will promptly download and install all Updates and acknowledges and agrees that the Platform or portions thereof may not work properly should User fail to do so. User further agrees that all Updates will be subject to the terms of this Agreement, unless otherwise provided in terms associated with such Update. Company reserves the right, at any time, to modify, suspend, or discontinue the Platform or any part thereof without notice. User agrees Company will not be liable to User or any third party for any modification, suspension, or discontinuance of the Platform or any part thereof.
g. Short Code Terms of Service - When you opt-in to the service, we will send you an SMS message to confirm your signup for messages about assignment confirmations, reminder reviews, ratings, and prompts to confirm your schedule availability. You can cancel the SMS service at any time. Just text "STOP" to stop. After you send the SMS message "STOP" to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again. If at any time you forget what keywords are supported, just text "HELP" for help . After you send the SMS message "HELP" to us, we will respond with instructions on how to use our service as well as how to unsubscribe. We are able to deliver messages to the following mobile phone carriers:
- Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile.
- Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast,Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless).
- ***Carriers are not liable for delayed or undelivered messages***
As always, message and data rates may apply for any messages sent to you from us and to us from you. Message frequency varies. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
15. Third-Party Beneficiary.
Practice and Provider appoint Company as a third-party beneficiary of their Match Agreements for purposes of enforcing any obligations owed to, and any benefits conferred on, Company hereunder. Practice and Provider further agree that Company has the right to take such actions with respect to their Accounts, including, without limitation, suspension, termination, or legal actions, as Company, in our sole discretion, deems necessary to enforce its rights as third-party beneficiary under the Match Agreements. This Agreement and any Account registration will not be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between Users and Company, except and solely to the extent expressly stated in this Agreement.
16. Warranty Disclaimer.
a. User expressly acknowledges, agrees, and understands that: (a) the Platform is merely a venue where Users may act as Practices and/or Providers; (b) Company is not a party to any Match Agreements between Practices and Providers; (c) Users are not an employee of Company and that Company does not, in any way, supervise, direct, or control Provider or Provider Services; (d) Company will not have any liability or obligations under or related to Match Agreements or any acts or omissions by you or other Users; (e) Company has no control over Providers or Provider Services offered or rendered by Providers; and (f) Company makes no representations as to the reliability, capability, or qualifications of any Provider or the quality, security, or legality of any Provider Services, and Company disclaims any and all liability relating thereto.
b. COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO PROVIDER(S), THE PLATFORM, ANY DATA PROVIDED BY ANY USER, OR THE SUBJECT MATTER OF THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, COMPLIANCE WITH LAW, AND FITNESS FOR A PARTICULAR PURPOSE. PRACTICE SHALL MAKE NO REPRESENTATION, GUARANTEE, OR WARRANTY CONCERNING PROVIDER(S) EXCEPT AS EXPRESSLY AUTHORIZED IN ADVANCE BY COMPANY IN WRITING.
17. Liability Limitation.
a. COMPANY WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY INCIDENTAL, SPECIAL, PUNITIVE, ECONOMIC OR CONSEQUENTIAL DAMAGES, OR (II) FOR ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT OF MONEY RECEIVED FROM THE USER IN THE TWELVE MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE; SUCH AGGREGATE AMOUNT OF MONEY PAID IN SUCH TWELVE-MONTH PERIOD SHALL BE THE USER’S SOLE AND EXCLUSIVE REMEDY.
b. Company is not liable, and User agrees not to hold Company responsible, for any damages or losses arising out of or in connection with this Agreement, including, but not limited to: (i) User’s use of or User’s inability to use the Platform or its services; (ii) delays or disruptions in the Platform or its services; (iii) viruses or other malicious software obtained by accessing, or linking to, the Platform or its services; (iv) glitches, bugs, errors, or inaccuracies of any kind in the Platform or its services; (v) damage to User’s hardware device from the use of the Platform or Platform services; (vi) the content, actions, or inactions of third parties' use of the Platform or its services; (vii) a suspension or other action taken with respect to User’s account; (viii) User’s reliance on the quality, accuracy, or reliability of postings, Provider profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Platform, or any other information accessed or received through the Platform (including without limitation any patient information); (x) User’s need to modify practices, content, or behavior or User’s loss of or inability to do business, as a result of changes to the Terms of Service.
a. In addition to the recognition that Company is not a party to any contract between Practice and Provider, User hereby releases Company, its Affiliates, and their respective officers, directors, agents, subsidiaries, joint ventures, and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute User has with another User, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of Provider Services provided to Practice by a Provider and requests for refunds based upon disputes.
b. TO THE EXTENT APPLICABLE, USER HEREBY WAIVES THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”)
c. This release will not apply to a claim that Company failed to meet its obligations under this Agreement.
User will indemnify, defend, and hold harmless Company, its Affiliates, and their respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by User or a third party against an Indemnified Party relating to: (a) use of the Platform and its services by User or User’s agents, including any payment obligations incurred through use of the Platform; (b) any Match Agreement entered into by User or User’s agents, including, but not limited to, the classification of a Provider as an independent contractor; the classification of Company as an employer or joint employer of Provider; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits; (c) failure to comply with this Agreement by User or User’s agents; (d) failure to comply with applicable law by User or User’s agents, including without limitation all applicable privacy and information security laws and regulations; (e) negligence, willful misconduct, or fraud by User or User’s agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by User or User’s agents.
20. Trademarks, Trade Names and Other Designations.
Subject to the terms of this Agreement, Company grants User the right to use and display Company trademarks, tradenames and other designations of source (“Marks”) as they may appear with respect to the services solely for the purposes set forth in this Agreement. All such use of the Marks shall be in accordance with Company’s Mark usage guidelines. Notwithstanding the foregoing, any such use or proposed use of the Marks shall be presented to Company for approval not less than ten (10) business days prior to the intended date of use. User will not use, register or take other action with respect to any Mark used anywhere in the world by Company, except to the extent authorized in advance writing by Company. Other than as expressly and unambiguously provided in this Agreement, Practice shall not have any right to use the Marks.
21. Proprietary Rights.
User acknowledges that, in the course of this Agreement, it may obtain business, legal, technical, financial or other information relating to Company, all of which is confidential and proprietary, including the terms of the Agreement itself (“Proprietary Information”). User shall, at all times, both during the term of this Agreement and after its termination, keep in trust and strict confidence all such Proprietary Information, and shall not use such Proprietary Information other than required by this Agreement; nor shall User disclose any such Proprietary Information to any person without Company’s prior written consent. User shall not be bound by this Section with respect to information it can document has entered or later enters the public domain as a result of no act or omission of User, or is lawfully received by User from third parties without restriction and without breach of any duty of nondisclosure by any such third party. User acknowledges and agrees that Company owns all right, title and interest in and to the Proprietary Information, documentation, sales and marketing materials, and all Marks, as well as all Intellectual Property Rights related to the foregoing. User agrees that Company will, in addition to any other remedies available to it at law or equity, be entitled to injunctive relief to enforce the terms of this Section, without the necessity of posting any bond or undertaking, and will be entitled to recover all costs and expenses, including attorneys’ fees, incurred in any legal action arising under this Section.
a. If a dispute arises between User and Company or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, User, Company, and our Affiliates agree to resolve any claim, dispute, or controversy arising out of or related to this Agreement or User’s relationship with Company (including any claimed employment with Company or one of its Affiliates or successors) or termination of User’s relationship with Company, regardless of the date of Claim accrual, (each, a “Claim”) in accordance with this Section.
b. This Agreement and any Claim, including without limitation any dispute relating to a Match Agreement, will be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law provisions; provided, however, that any Claims made by any Provider located within the United States will be governed by the law of the state in which such Provider resides.
c. Before serving a demand for arbitration of a Claim, or otherwise seeking relief, User agrees to first provide written notification to Company of the Claim (the “Notice”) and seek informal resolution of the Claim. The Notice must include User’s name, pertinent account information, a brief description of the Claim, and User’s contact information, so that Company may evaluate the Claim and attempt to informally resolve the Claim. Company will have 60 days from the date of its receipt of the Notice to informally resolve the Claim, which, if successful, will avoid the need for further action.
d. In the unlikely event that Company is unable to resolve a Claim within 60 days of its receipt of the Notice, User, Company, and our Affiliates agree to resolve the Claim by binding arbitration before an arbitrator from the American Arbitration Association (“AAA”). AAA may be contacted at www.adr.org. User and Company agree that any legal dispute or controversy concerning the arbitrability of any claim will be resolved by binding arbitration administered by AAA. If for any reason AAA will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
e. CLASS ACTION AND JURY TRIAL WAIVER - THIS ARBITRATION PROVISION AFFECTS USER’S ABILITY TO PARTICIPATE IN CLASS, COLLECTIVE OR REPRESENTATIVE ACTIONS. BOTH USER AND COMPANY AGREE TO BRING ANY DISPUTE IN ARBITRATION ON AN INDIVIDUAL BASIS ONLY, AND NOT ON A CLASS, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL REPRESENTATIVE BASIS ON BEHALF OF OTHERS. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD OR ARBITRATED AS A CLASS, COLLECTIVE, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, OR AS A MEMBER IN ANY SUCH CLASS, COLLECTIVE, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL PROCEEDING (“CLASS ACTION WAIVER”). THE CLASS ACTION WAIVER DOES NOT APPLY TO ANY CLAIM USER BRINGS AS A PRIVATE ATTORNEY GENERAL SOLELY ON USER’S OWN BEHALF AND NOT ON BEHALF OF OTHERS. NOTWITHSTANDING ANY OTHER PORTION OF THIS ARBITRATION PROVISION OR THE AAA RULES, DISPUTES REGARDING THE VALIDITY, ENFORCEABILITY OR BREACH OF THE CLASS ACTION WAIVER MAY BE RESOLVED ONLY BY A CIVIL COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR. IN ANY CASE IN WHICH (1) THE DISPUTE IS FILED AS A CLASS, COLLECTIVE, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AND (2) A CIVIL COURT OF COMPETENT JURISDICTION FINDS ALL OR PART OF THE CLASS ACTION WAIVER UNENFORCEABLE, THE CLASS, COLLECTIVE, REPRESENTATIVE AND/OR PRIVATE ATTORNEY GENERAL ACTION TO THAT EXTENT MUST BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION, BUT THE PORTION OF THE CLASS ACTION WAIVER THAT IS ENFORCEABLE WILL BE ENFORCED IN ARBITRATION. USER AND COMPANY AGREE THAT USER WILL NOT BE RETALIATED AGAINST, DISCIPLINED OR THREATENED WITH DISCIPLINE AS A RESULT OF EXERCISING USER’S RIGHTS UNDER SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT BY FILING OR PARTICIPATING IN A CLASS, COLLECTIVE OR REPRESENTATIVE ACTION IN ANY FORUM. HOWEVER, COMPANY MAY LAWFULLY SEEK ENFORCEMENT OF THIS ARBITRATION PROVISION AND THE CLASS ACTION WAIVER UNDER THE FEDERAL ARBITRATION ACT AND SEEK DISMISSAL OF SUCH CLASS, COLLECTIVE OR REPRESENTATIVE ACTIONS OR CLAIMS. THE CLASS ACTION WAIVER WILL BE SEVERABLE IN ANY CASE IN WHICH THE DISPUTE IS FILED AS AN INDIVIDUAL ACTION, AND SEVERANCE IS NECESSARY TO ENSURE THAT THE INDIVIDUAL ACTION PROCEEDS IN ARBITRATION.
f. User may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying Company in writing within 30 days of the date User first registered for the Platform. To opt out, User must send a written notification to Company at email@example.com that includes (a) User’s account username, (b) User’s name, (c) User’s address, (d) User’s telephone number, (e) User’s email address, and (f) a clear statement indicating that User does not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions.
User may not assign this Agreement or any right or obligation without the prior written consent of Company and any purported transfer or assignment will be void. Company may assign this Agreement to any Affiliate or third party. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of the parties. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Even though Company drafted this Agreement, User represents that User had ample time to review and decide whether to agree to the terms of this Agreement. If an ambiguity or question of intent or interpretation of this Agreement arises, no presumption or burden of proof will arise favoring or disfavoring User or Company because of the authorship of any provision of this Agreement. No modification or amendment to this Agreement will be binding upon Company unless in a written instrument signed by a duly authorized representative of Company. For the purposes of this subsection, a written instrument will expressly exclude electronic communications, such as email and electronic notices, but will include facsimiles. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party's right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party. This Agreement shall be governed by and construed under the laws of Texas without regard to the conflicts of law provisions thereof. This Agreement is the sole agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or discussions between the parties with respect thereto.
a. “Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Company.
b. “Practice” means any authorized User utilizing the Platform to seek and/or obtain Provider Services from another User. From time to time, Company may act as a Practice, and the terms and conditions of this Agreement applicable to Practices will apply to Company when Company acts in this way.
c. “Practice Deliverables” means requests, intellectual property, and any other information or materials that a Provider receives from a Practice for a particular Match Agreement.
d. “Confidential Information” means Practice Deliverables, Provider Deliverables, and any other information provided to, or created by, a User for a Match Agreement, regardless of whether in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Provider or Practice; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party's obligations of confidentiality; or (d) was independently developed by User without use of another person's Confidential Information.
e. “Request” means a Request for Provider Services that a Practice provides to a Provider on the Platform. Acceptance of the Request by Provider forms a “Match Agreement.”
f. “Provider” means any authorized User utilizing the Platform to advertise and provide Services to Practices. A Provider is also a customer of Company with respect to use of the Platform and the Platform services.
g. “Provider Deliverables” means requests, intellectual property, and any other information or materials that a Practice receives from a Provider for a particular Match Agreement.
h. “Provider Services” means all services performed for or delivered to Practices by Providers.
i. “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
j. “Payment Method” means a valid credit or debit card issued by a bank acceptable to Company, or such other method of payment as Company may accept from time to time in our sole discretion.
k. “Match Agreement” means the contract formed between a Practice and a Provider, governing Provider Services to be performed by Provider for Practice per the terms of the applicable Request.
l. “User Content” means any data, feedback, content, text, video, music, or other information that User posts to any part of the Platform.
Schedule of Fees for Access to Platform:
Prices (“Access Fee”) are per Practice location at the rate indicated on the point of sale page at https://www.clouddentistry.com/owner/select-plan (the "Point of Sale"). Each separate location requires payment of a separate Access Fee. The scope of each plan is as specified on the Point of Sale.
In the event a Practice elects to have the Company pay the amount owed under a Match Agreement directly to the Provider, then, in addition to the foregoing Access Fee, the following administrative fee shall be charged for each such Match Agreement (the “Processing Fee”):
- $10 per Match Agreement with a front office staff or dental assistant
- $20 per Match Agreement with a dental hygienist
- $30 per Match Agreement with a dentist or specialist
In the event a Practice elects to have the Company pay amounts owed directly to Provider, other than under a Match Agreement, then, in addition to the foregoing Access Fee and Processing Fee, an additional $20 convenience fee shall be charged per the relevant assignment day(s).
Schedule of Fees for Providers:
Cancellation fee (less than 24-hour notice, but before the Provider arrives at or is en route to the Practice):
- Specialist - $200, plus $5 processing fee
- Dentist - $100, plus $5 processing fee
- Hygienist - $75, plus $5 processing fee
- Assistant - $40, plus $5 processing fee
Cancellation fee (for appointments cancelled when Provider arrives at or is en route to the Practice): Half the booked time times the Provider's rate, up to four hours.
Early dismissal fee (for appointments where the Practice does not utilize the Provider for the total number of hours booked): The number of hours booked, minus one hour, times the Provider’s hourly rate.