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User Agreement

iCareBetter Marketing User Agreement

This iCareBetter User Agreement (“Agreement”) contains the terms and conditions that apply to the use by you (“User” or “You”), and the Practices and Practice Members (defined below) that you represent, of the Services (as defined in Section 1.a) offered by iCareBetter, Inc. (“iCareBetter”), including but not limited to at https://www.icarebetter.com and all affiliated websites and applications and any Software (as defined in Section 2.a) owned and operated by iCareBetter (collectively, the “iCareBetter Site”), as well as on its partners’ websites, digital platforms and applications (“Partner Sites”). As used in this Agreement, “Practice” shall mean the entity on behalf of which User has engaged iCareBetter to provide the Services, and shall include the totality of all facilities, doctors, dentists, and other healthcare specialists, professionals or providers, and staff members (each a “Practice Member”) located in the same office or affiliate offices, provided such affiliates are part of a single affiliated covered entity (as such terms are defined within HIPAA) or an organized health care arrangement or “OHCA” (as such term is defined within HIPAA), for whom an account is created on the iCareBetter Site by User or who otherwise use the Services and/or the iCareBetter Site for the purpose set forth in this Agreement. In those instances in which the Practice does not have a separate corporate parent entering into this Agreement on the Practice’s behalf as User, references to User herein shall also be construed to mean Practice and references to Practice herein shall be construed to mean User. This Agreement hereby incorporates by reference any User account page accessible by User through the Services (the “User Account Page”) or other order form entered into by the parties (the User Account Page and any other order forms entered into by the parties shall collectively be referred to as the “Order Form”) and any addenda entered into by the parties, as if the terms of such Order Form or addenda, as applicable, were stated herein.

BY SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR OTHERWISE AGREEING TO THESE TERMS, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO AND BIND USER AND PRACTICE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ACKNOWLEDGE AND AGREE THAT ALL SUCH USE BY USER IS SUBJECT TO SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS OR ARE NOT AUTHORIZED TO BIND USER AND PRACTICE, THEN DO NOT SIGN THE ORDER FORM AND USER AND PRACTICE ARE NOT LICENSED OR PERMITTED TO USE THE SERVICES AND/OR THE ICAREBETTER SITE. ALL OTHER USES OF THE SERVICES AND/OR THE ICAREBETTER SITE ARE STRICTLY PROHIBITED.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT IN SECTION 14.e, BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU, PRACTICE AND ICAREBETTER WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

  1. iCareBetter Services.
    1. Services. Subject to the terms and conditions of this Agreement and payment of the fees set forth in Section 6 and any Order Form or addendum to this Agreement (if applicable), iCareBetter will provide a variety of services via the iCareBetter Site and Partner Sites (“Services”), which may include, but are not limited to: (i) hosting Practice and Practice Member profile web pages, and marketing Practice Members and their services on the iCareBetter Site (collectively, the “Marketing Services”); (ii) contact form services.
    2. User Access. During the Term, and subject to the terms and conditions of this Agreement, iCareBetter grants User the right to access and use the Services and/or the iCareBetter Site and to permit its Practice Members, agents and subcontractors the right to access and use the Services and/or the iCareBetter Site solely on User’s behalf; provided, however, that User shall be responsible for any use of the Services and/or the iCareBetter Site by such Practice Members, agents and subcontractors. During the Term and subject to the terms and conditions of this Agreement, User grants iCareBetter the right to access and use User’s practice management system, calendar system and patient database (“User’s Systems”), and to copy, extract and use all data necessary to provide the Services. User acknowledges and agrees that iCareBetter shall not be subject to any terms not set forth herein with respect to User’s Systems, including, but not limited to, any click-through agreements iCareBetter may be required to accept in connection with its use thereof. User will furnish to iCareBetter such cooperation, technical assistance, resources, and support as reasonably necessary or appropriate for iCareBetter to implement and perform the Services.
    3. User Information. User acknowledges and agrees that, in order to provide certain of the Services, iCareBetter shall, and shall authorize its partners to, make certain Practice information available to iCareBetter’s end users who have consented to iCareBetter’s terms of use (by clicking through the terms of use or using the iCareBetter Site or end-user-facing aspects of the Services) (“Customers”), including, without limitation: (i) the address, phone number, fax and email of the Practice and Practice Members; (ii) information regarding Practice Member appointment availability and National Provider Identifier (“NPI”); (iii) insurance plans in which each Practice Member participates (i.e., with which each is “in-network”); (iv) general Practice information; and (v) trademarks, logos and such other domains, images and materials that User provides to iCareBetter (“User Logos”) (collectively, “User Information”). iCareBetter and its partners may use, modify, display, and reproduce User Information in connection with providing and marketing the Services and the iCareBetter Site. User may request that iCareBetter modify User Information with additional information, links or services. iCareBetter may incorporate such modifications and additional information into User’s profile posted on the iCareBetter Site in iCareBetter’s sole discretion.
    4. Accounts. Each Practice Member shall create and maintain throughout the Term accounts and passwords (“Accounts”) to use the Services and/or the iCareBetter Site, including uploading, reviewing, and updating User Information via the iCareBetter Site. Account information shall be held in strict confidence by User and Practice Members and User will be solely responsible for any disclosures of its Account information or use thereof by any unauthorized party. User shall immediately notify iCareBetter at service@iCareBetter.com: (i) following any unauthorized use, access or other compromise of an Account (including any password); and (ii) when a Practice Member leaves, is no longer employed or otherwise ceases to be part of any Practice. iCareBetter reserves the right to disable any Account upon its reasonable belief that the security with respect to that Account has been or likely will be compromised.
    5. Reviews. iCareBetter solicits feedback from Customers who use the iCareBetter Site regarding the Practice and/or Practice Members (“Reviews”), and iCareBetter may, in its sole discretion, make these Reviews available through posting on the iCareBetter Site and/or Partner Sites in accordance with the terms of use governing such websites. Information provided by or about Customers or associated with Customers that is contained in or part of Reviews is Customer Personal Information (as defined in Section 1.g) but is not Personal Health Information and is collected solely at the discretion of iCareBetter and not on behalf of User. User represents and warrants that it will not attempt to unduly influence or fraudulently create Reviews of its Practice Members or other providers on the iCareBetter Site.
    6. User Sourced Reviews. If applicable, iCareBetter may also display through the Services certain reviews of Practice Members submitted by Non-iCareBetter Patients (defined below in Section 5) directly to User or an agent of User (“User Sourced Reviews”). The parties agree and acknowledge that User Sourced Reviews may not conform to the standard form of reviews iCareBetter customarily obtains from Customers, and accordingly, the parties agree to work in good faith to conform User Sourced Reviews to iCareBetter’s standard form for publication through the Services. User agrees and acknowledges that iCareBetter may, in its sole discretion, not publish or remove from display through the Services any User Sourced Review to the extent it violates iCareBetter’s then-current policies or is in violation of applicable laws.
    7. Customer Personal Information. iCareBetter will maintain Customer consent for the use and disclosure of a Customer’s health care or medical history, and other personal information (collectively, “Customer Personal Information”) in connection with the Services, whether in paper or electronic form. For the avoidance of doubt, Customer Personal Information is information that Customers provide directly to iCareBetter so that iCareBetter can provide services to Customers, and does not include information obtained from or on behalf of User, the Practice or any Practice Member. Customer Personal Information includes, without limitation, information that Customers provide directly to iCareBetter (i) creating an account, (ii) searching for healthcare providers, (iii) completing medical history forms, (iv) leaving reviews of Practice Members, or (v) utilizing Embedded Modules (defined below). User acknowledges and agrees that Customer Personal Information is not Personal Health Information.
    8. Content. iCareBetter shall develop, compile, modify or otherwise maintain all content on the iCareBetter Site or as part of the Services, including, without limitation, any Practice Member or Practice photographs, and any content provided by User or any Customers. User acknowledges and agrees that iCareBetter may: (i) make content from the iCareBetter Site, including User Information, available on Partner Sites and through marketing initiatives; and (ii) use Practice Member’s name and/or NPI to obtain certain insurance information including, without limitation, coverage and benefit information. User shall obtain any necessary permission or consent from each Practice and Practice Member as may be required to share the User Information with iCareBetter and for iCareBetter to further use and disclose such information as described herein.
  2. Software.
    1. Acceptance. You may choose to review, download or otherwise utilize certain software applications or other code and functionality from the iCareBetter Site or otherwise provided by iCareBetter (“Software”). As a condition to using the Software, you must review and agree to the terms of this Section 2 and certain other terms and conditions that may apply (collectively, the “Software Terms”). You are not required to agree to the Software Terms. However, if you reject the Software Terms, you do not have any right to use the Software. If you use the Software, you will be deemed to have accepted the Software Terms. The term “Software” includes Embedded Modules, as defined below.
    2. Definitions.
      1. “End User” means a visitor to the User Website.
      2. “User Website” means the User URL(s), domain(s) or other web properties accessing or hosting an Embedded Module.
      3. “iCareBetter Content” means all data, information and content provided or otherwise made available by or on behalf of iCareBetter through or in connection with the Services and the iCareBetter Site. iCareBetter Content includes the iCareBetter Marks, links and search functionality leading to the iCareBetter Site, and advertising for iCareBetter or for third party products. In addition, iCareBetter Content includes any and all data and html and other code that accompanies the Embedded Module, and any upgrades, enhancements or modifications to such code.
      4. “iCareBetter Marks” means the iCareBetter name and any trade name, trademark, service mark, or logo of iCareBetter.
    3. User Website Terms. User hereby agrees that User will provide the Embedded Modules and iCareBetter Content to End Users subject to the same terms and conditions that End Users are subject to with respect to User’s own products or services on the User Website (“End User Terms”). User acknowledges and agrees that (i) each End User affirmatively accepts the End User Terms in connection with such End User’s use of the User Website; and (ii) such End User Terms include at least the following: (x) all legally required, and otherwise appropriate disclaimers related to the Embedded Modules and iCareBetter Content and its use, and (y) provisions regarding User’s collection and processing of End Users’ personal information in compliance with all applicable laws and regulations and consistent with this Agreement. Further, End Users shall be required to accept iCareBetter’s Terms of Use and Privacy Policy if such End Users elect to use iCareBetter’s services or access the iCareBetter Site.
    4. Proprietary Rights and Restrictions.
      1. Feedback. User may choose to provide iCareBetter with comments concerning the Services or the iCareBetter Site and User’s use thereof, which may include bug reports, evaluations, proposed product integrations (and associated metrics and learnings) (collectively, “Feedback”). User hereby assigns to iCareBetter all rights, title, and interest to the Feedback, for any and all commercial and non-commercial purposes, with no obligation of any kind to User.
      2. Restrictions. Except as expressly authorized under this Agreement, User may not (i) copy, rent, lease, sell, lease, license, transfer, assign, sublicense, redistribute, disassemble, aggregate, index, reverse engineer or decompile, derive source code or algorithms from, modify or alter, interfere with, defeat, avoid, disrupt, bypass, remove, disrupt or disable any part of the iCareBetter Site; (ii) circumvent or attempt to circumvent any restrictions on, access to, or use of the iCareBetter Site, or any of their constituent components; (iii) introduce any virus, worm, trap door, back door, timer, time bomb, authorization codes, or other device that would access, modify, interfere or disrupt the use of the iCareBetter Site; (iv) use the iCareBetter Site for any unlawful purpose, including to phish, spam, or distribute malware; (v) otherwise use the iCareBetter Site on behalf of any third party or on any websites other than the User Website, or to create or maintain a separate online scheduling platform, or other similar product or service; (vi) resell, disclose, publish or distribute the iCareBetter Site, including any information created, received, processed or provided through the Services or the iCareBetter Site; (vii) use the iCareBetter Site in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of publicity; (viii) cache or store any content obtained via use of the iCareBetter Site; or (ix) remove or alter any branding, identifying, or notices included with the Software (including, but not limited to, “Powered by iCareBetter” or other iCareBetter Marks).
  3. User Responsibilities.
    1. User Information. User will cooperate with iCareBetter or its agents to verify the information specified in Section 6.b, User Information, and any other information that iCareBetter in its sole discretion deems necessary to confirm Practice Members’ professional qualifications. User will promptly update and notify iCareBetter, in accordance with Section 8.b, of any change in User Information, including Practice Member licensure status and any applicable disciplinary action involving the Practice Member. User is solely responsible for any liability or expense resulting from outdated or inaccurate User Information. User agrees that iCareBetter may, in its sole discretion, modify the processes and criteria it uses to evaluate Practice Members’ qualifications, including with respect to any specialty listing, and may reject a Practice Member from being included in the Services for failure to meet iCareBetter’s eligibility standards, in iCareBetter’s sole discretion.
    2. Acceptance of Customers. User’s acceptance of a contact request from iCareBetter for a Customer constitutes, for the purposes of this Agreement, User’s acceptance of such Customer as a patient. User is fully and solely responsible for all care rendered to Customer, and for collecting payment from Customer for all services rendered. iCareBetter will have no responsibility for collection (subject to iCareBetter’s obligations for Payment Services, as applicable) or any liability whatsoever for fees for services due to User that are unpaid by Customer.
    3. Contacting Requests. User will respond to Customer contacting requests within a reasonable amount of time, but in no event more than twenty-four (24) hours after receipt of iCareBetter’s request for a contact on behalf of a Customer. User acknowledges and agrees that repeated undermining of Customer contacts may result in User or the relevant Practice Member(s) being removed from, or otherwise affected in the order of display of, listings available to Customers, in iCareBetter’s sole discretion.
    4. Confirmation of Customer Personal Information. If a Customer submits Customer Personal Information on the iCareBetter Site and authorizes User to have access to such information in advance of an appointment, at the Customer’s appointment User will (i) provide Customer with a copy of such Customer Personal Information, and (ii) give Customer an opportunity to review and accept or revise such Customer Personal Information. User hereby acknowledges, agrees, releases, and indemnifies iCareBetter from all claims and liability arising out of, related to, or in connection with User’s failure to have Customer accept the Customer Personal Information or arising out of, related to, or in connection with any omissions or errors in any Customer Personal Information provided through the Services. User has no rights in the Customer Personal Information maintained by iCareBetter other than as expressly provided hereunder. If iCareBetter becomes aware that a User is using any Customer Personal Information obtained through the Services and/or the iCareBetter Site in a manner that is inconsistent with the terms of this Agreement, iCareBetter’s terms of use or privacy policy, or applicable law, iCareBetter may, without limiting any of its other remedies available at law or in equity, request that User immediately cease such inconsistent use and/or immediately terminate such User’s rights with respect to the Services and/or the iCareBetter Site. iCareBetter may, but has no obligation to, delete any content that iCareBetter, in its sole discretion, deems inappropriate for inclusion on the iCareBetter Site.
    5. Contact. User agrees that iCareBetter may contact any Practice Member regarding the Services, the Software, and/or the iCareBetter Site. If User has opted out of receiving any email or facsimile communications from iCareBetter then, as a condition of receiving the Services hereunder, User expressly opts back in to receiving such email and facsimile communications and hereby withdraws its opt out.
  4. Fees and Payments.
    1. Services Fees. In consideration of the Services provided hereunder, User shall pay iCareBetter any initial set up or recurring fees specified on the applicable Order Form. Prices shown on the Order Form do not include any taxes that may apply. User agrees to pay any sales and other taxes that may apply (excluding taxes based on iCareBetter’s income) unless User provides iCareBetter with a valid signed tax exemption certificate applicable to the Services and the Practices. iCareBetter may invoice User for the first payment in advance at the time of sign up, in advance for each subsequent license period, or as otherwise specified in the Order Form, as applicable. All invoices provided by iCareBetter hereunder are due immediately, and iCareBetter may charge User’s credit card, bank account, or other form of payment, on a recurring basis, in advance of the period of service, or in arrears, as applicable. User agrees to these recurring charges.
    2. Other Fees. In addition to those fees set forth in Section 4.a, User shall pay iCareBetter the fees set forth in any addendum or Order Form entered into by the parties.
    3. Amounts Past Due and Fee Changes. All amounts due and owing hereunder by User that are not paid by the due date shall bear interest at the rate of the lesser of one and one half percent (1.5%) per month or the maximum amount permissible by law. Except as otherwise may be agreed in an applicable Order Form, iCareBetter reserves the right to change from time to time the amount or structure of the fees for any of the Services (including any part of the Marketing and Technology Services). iCareBetter will use reasonable efforts to notify User of any such fee changes at least thirty (30) days prior to becoming effective, provided that notification by email or on the User Account Page shall be sufficient. If User does not wish to pay such revised fees, then User’s sole option shall be to terminate this Agreement by notifying iCareBetter in writing prior to the revised fees becoming effective. If User does not notify iCareBetter in writing prior to the revised fees becoming effective, then User will be deemed to have accepted such fee changes and such revised fee amounts will be automatically incorporated into this Agreement by this reference.
    4. Termination. Upon termination of this Agreement for any reason, User shall pay to iCareBetter all fees due or accrued under this Agreement and any addendum or Order Form entered into by the parties as of the date of such termination. Notwithstanding anything to the contrary in this Agreement or in any addendum, iCareBetter shall not refund to User any fees paid prior to expiration or termination of this Agreement.
    5. Participation; Services. iCareBetter will not exclude as a participant in the Services any individual or entity who meets the qualifications for participation as set forth herein. The parties agree that any User payments for the applicable Marketing and Technology Services are (i) consistent with fair market value in an arm’s length transaction, (ii) not based on the value or volume of any items or services provided by User to Customers or Non-iCareBetter Patients, and (iii) do not constitute splitting of any professional fees paid to User. The Services impose no requirements on the manner in which User provides services to Customers, except that User agrees not to charge any Customers different rates based upon, nor to charge Customers a fee for, such Customers contacting through the iCareBetter Site or otherwise using iCareBetter services.
  5. Limitation of Liability for Use.
    1. Disclaimer. The parties acknowledge and agree that iCareBetter is not responsible for: (i) the accuracy, reliability, timeliness, or completeness of User Information, PHI, Benefit Information (defined below), Customer Personal Information, other data provided by Customers, or any other data or information provided or received through the Services and/or the iCareBetter Site; (ii) any results that may be obtained from the use of the Services and/or the iCareBetter Site; (iii) the provision of User’s services as a result of User’s reliance on any Customer Personal Information or other data provided through the Services and/or the iCareBetter Site; (iv) the cancelling or rescheduling of any appointment originated from the Services and/or the iCareBetter Site; (v) use of the Software after the Term; or (vi) losses or injury arising from User’s failure to implement and maintain the safeguards set forth in Section 6.a.ii, or arising from a security incident not caused by iCareBetter.
    2. Health Care. User acknowledges and agrees that iCareBetter is not a health care provider, licensed or otherwise. iCareBetter cannot and will not assume responsibility for the direct care of any patient, which shall at all times remain the responsibility of User, Practice(s) and Practice Members. iCareBetter will not be responsible for the assignment of staff to treat Customers, other patients, or any other activity that involves the practice of medicine.
  6. Representations, Warranties and Covenants of User.
    1. Confidentiality. User represents, warrants and covenants that: (i) it will maintain the confidentiality of Customer Personal Information and shall only use Customer Personal Information or the healthcare and personal information of other patients as permitted in this Agreement and consistent with state and federal laws, including applicable privacy and data security laws; and (ii) it will implement and maintain reasonable and appropriate administrative, organizational, physical, and technical safeguards to protect the confidentiality, integrity and availability of Customer Personal Information, Account information, and iCareBetter Confidential Information, and to prevent such information from improper use and disclosure.
    2. Practice Member Information. User represents, warrants and covenants that at all times during the Term: (i) User will provide iCareBetter with complete and accurate information about Practice Members’ specialties (in accordance with and subject to iCareBetter’s then-current guidelines on specialty listings), practice or hospital affiliations, association memberships, board certifications, insurance participation, and contact information (including Practice Members’ professional address and phone and fax numbers); (ii) User will provide iCareBetter accurate and up-to-date information regarding each Practice Member’s appointment availability; (iii) each Practice Member possesses valid, unexpired, unrevoked and unrestricted licenses, authorizations and certifications: (A) for all jurisdictions in which he or she practices (free of any disciplinary actions by state medical boards or other applicable regulatory bodies), (B) necessary to provide all services or treatment provided by User or a Practice Member to a Customer or Non-iCareBetter Patient resulting from User’s or a Practice Member’s use of the Services and/or the iCareBetter Site (and User shall confirm the same to iCareBetter on at least an annual basis), and (C) necessary for iCareBetter to display User’s and Practice Members’ specialties; (iv) each Practice Member has entered into a valid and unexpired collaborative practice or other agreements to the extent required for such Practice Member to practice at the applicable Practices (including such agreements to the extent the same is a condition of such Practice Member’s license); (v) each Practice Member is a member in good standing on the medical staff of any hospitals in which he or she practices with appropriate clinical privileges (if applicable), and is employed by or affiliated with User; (vi) each Practice Member possesses valid and unrestricted state and federal narcotic and controlled substances registrations, as applicable; (vii) each Practice Member is and remains a participating provider in the Medicare and Medicaid programs (Titles XVIII and XIX of the Social Security Act, respectively) or is qualified to participate therein, but in any event is not excluded therefrom; (viii) User will obtain and maintain, and ensure that each Practice Member obtains and maintains, professional liability insurance coverage and other insurance of the types and in the amounts that are at a minimum consistent with industry standards and applicable law, with respect to each Practice Member’s practice; (ix) each Practice Member treats all patients presenting themselves for treatment without regard to such patients’ race, religion, gender, sexual orientation, disability, payer source or other unlawful considerations; (x) the healthcare provider primarily providing services for an appointment shall be the Practice Member with whom such contact is requested; (xi) User will use, and ensure that each Practice Member uses, the Services and the iCareBetter Site in compliance with all applicable laws and regulations, including, without limitation, the hospital conditions of participation, the patient freedom of choice laws and principles, and antitrust, competition, advertising, marketing and consumer protection laws and regulations; (xii) User has the right to enter into and subject the Practice and each Practice Member to the terms and conditions of this Agreement; (xiii) User has obtained from each Practice Member all right, title and interest necessary for iCareBetter to provide the Services to User on behalf of such Practice Member; and (xiv) each Practice Member shall comply with the then-current iCareBetter Terms of Use available at https://endo.icarebetter.com/terms-of-use/. User represents, warrants and covenants that it will notify iCareBetter within five (5) days of any additional information applicable to User’s or a Practice Member’s practice, any changes with respect to any information provided to iCareBetter, or if at any point User or a Practice Member is no longer in compliance with any of the warranties, representations, or covenants in this Section 6.b, except that: (A) User will have fifteen (15) days to notify iCareBetter with respect to any additional information applicable to User’s or a Practice Member’s practice or changes of the information provided by User pursuant to Section 6.b.i, and (B) User will notify iCareBetter within a reasonable amount of time, but in no event more than one (1) hour after any changes with respect to the information provided by User pursuant to Section 6.b.ii. User shall be liable for any failure by Practice Members to meet the foregoing requirements of this Section 8.b.
    3. Competition. User acknowledges, represents, warrants and covenants that it will not, and will ensure that each Practice Member will not engage or participate in any act or omission involving the use of the Services: (i) to establish, attempt to establish, or enforce, directly or indirectly, any agreement or coordination of (A) the prices charged for any product or service; (B) the kinds, frequencies or amounts of any product or service offered; or (C) the customer or customer categories for any product or service; or otherwise engage or attempt to engage in price fixing, output restriction, or customer or market allocation; or (ii) to engage in any anti-competitive, deceptive or unfair act, omission or practice, or to otherwise violate applicable antitrust, competition or consumer protection laws or regulations. For the avoidance of doubt, the foregoing shall apply to User, including each Practice Member, notwithstanding that such User or any such Practice Member has not elected to use the Payment Services.
    4. Discount Reporting. User acknowledges, represents, warrants and covenants that it shall disclose to each applicable payor, to the extent required by applicable law or contract, the net amount User paid for the applicable Marketing and Technology Services hereunder (i.e., net of any applicable discounts, rebates, or other price concessions).
    5. Ownership Rights. User represents, warrants and covenants that it has all necessary right, title and interest in and to the content submitted by User to iCareBetter in order for iCareBetter to perform the Services, including any and all rights and interests in or to User Information and any copyright, trademark, other intellectual property, publicity, and privacy (including necessary consents, authorizations and/or other legal permissions).
    6. User Sourced Reviews. User represents and warrants that (a) it has obtained all rights, titles, interests, consents and authorizations necessary in accordance with applicable law for iCareBetter to publish User Sourced Reviews through the Services, (b) each User Sourced Review is unbiased and no remuneration has been or will be provided to the applicable Non-iCareBetter Patient for his or her review, and (c) each User Sourced Review has been provided to User or its agent by a Non-iCareBetter Patient of User in connection with services actually provided (or that ought to have been provided, as the case may be) by the Practice Member associated with the applicable User Sourced Review.
  7. Indemnification.
    User will defend, indemnify and hold harmless iCareBetter and its affiliates, directors, officers, employees, consultants and agents from any and all claims, actions, proceedings, losses, damages, liabilities and expenses, including reasonable attorneys’ fees and amounts awarded by a court or paid in settlement, arising from or related to: (i) any services or treatment provided by User or a Practice Member to a Customer or other patient resulting from User’s or a Practice Member’s use of the Services and/or the iCareBetter Site; (ii) any fees, costs or expenses in connection with any services or treatment provided by User or a Practice Member to a Customer or other patient resulting from User’s or a Practice Member’s use of the Services and/or the iCareBetter Site; (iii) use of the Services by, or provision of the Services to, Non-iCareBetter Patients; (iv) gross negligence, willful or intentional misconduct, or fraud by a User, Practice, or Practice Member; (v) any breach of Sections 2.d, 3.d, 4 or 6.a.ii; (vi) User Sourced Reviews; or (vii) User Information.
  8. Other Representations and Warranties; Disclaimer of Warranties.
    1. Mutual Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized; (ii) it has the full power to enter into this Agreement and to perform its obligations hereunder; (iii) the execution and delivery of this Agreement will not result in any breach of any terms and conditions of, or constitute a default under, any other agreement to which such party is bound; and (iv) it is not currently the subject of a voluntary or involuntary petition in bankruptcy, does not currently contemplate filing any such voluntary petition, and is not aware of any basis for the filing of an involuntary petition.
    2. No Other Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES, SOFTWARE AND THE ICAREBETTER SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ICAREBETTER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, AND ALL WARRANTIES OF THE SERVICES, SOFTWARE OR THE ICAREBETTER SITE BEING BUG-FREE, ERROR-FREE OR FREE FROM DEFECTS.
  9. Limitation of Liability.
    1. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL ICAREBETTER OR ITS PARTNERS, SUPPLIERS, VENDORS OR LICENSORS BE LIABLE TO USER, THE PRACTICE OR A PRACTICE MEMBER FOR ANY (i) LOSS OF PROFITS, LOST REVENUE, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF DATA, (iii) LOSS OR INTERRUPTION OF USE OF THE SERVICES, SOFTWARE, ICAREBETTER SITE, OR PARTNER SITES, (iv) PROVISION OF SERVICES, HEALTH CARE OR OTHERWISE, TO CUSTOMERS OR NON-ICAREBETTER PATIENTS, OR (v) USER SOURCED REVIEWS, WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY, EVEN IF ICAREBETTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. Limitation. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF ICAREBETTER OR ITS PARTNERS, VENDORS, SUPPLIERS OR LICENSORS FOR ANY LOSS OR DAMAGES (WHETHER BASED IN CONTRACT, TORT OR ANY OTHER FORM OF ACTION) (A) RELATING TO OR ARISING OUT OF THIS AGREEMENT, OR (B) RELATING TO OR ARISING OUT OF ANY OTHER AGREEMENT BETWEEN, ON THE ONE HAND, USER, THE PRACTICE OR A PRACTICE MEMBER, AND, ON THE OTHER HAND, ICAREBETTER OR ANY THIRD-PARTY THAT IS A PARTNER, VENDOR, SUPPLIER, LICENSOR OR LICENSEE OF ICAREBETTER, EXCEED THE GREATER OF: (Y) THE AGGREGATE OF THE AMOUNT OF FEES ACTUALLY PAID BY USER TO ICAREBETTER HEREUNDER DURING THE PREVIOUS TWELVE (12)-MONTH PERIOD, OR (Z) ONE HUNDRED DOLLARS ($100).
  10. Marks; Non-Disparagement.
    1. iCareBetter Marks. Any use of a iCareBetter Mark by User that is not expressly permitted hereunder will, in each case, be subject to the prior written approval of iCareBetter. In addition, any such use of a iCareBetter Mark will be subject to iCareBetter’s then-current trademark usage guidelines. iCareBetter reserves the right to terminate User’s right to use any iCareBetter Mark immediately upon the issuance of written notice if iCareBetter determines User to be in violation of such guidelines in its sole discretion. User acknowledges and agrees that it shall not (i) make any comparative references to iCareBetter, its pricing, or the Services or iCareBetter Site; or (ii) disparage or otherwise denigrate iCareBetter or the Services or iCareBetter Site.
    2. User Logos. User hereby grants iCareBetter a non-exclusive, royalty-free license to use User Logos in connection with the Services during the Term.
  11. Intellectual Property.
    All right, title and interest, including without limitation all intellectual property rights, in and to the Services, Software and the iCareBetter Site, including all content submitted by Customers or User thereto (other than User Logos), as well as all URLs and domains registered by iCareBetter (even if such URLs and domains incorporate User Logos), shall remain the valuable and exclusive property of iCareBetter. iCareBetter retains all proprietary rights, title, and interest, including, without limitation, all patents, copyrights, trademarks, service marks, trade dress, rights to the look and feel of the iCareBetter Site, and trade secrets in and to any inventions, data, information, know-how, logos, ideas, concepts, technology, software and documentation related to or resulting from the utilization of the Services and/or the iCareBetter Site.
  12. Confidentiality/HIPAA Compliance.
    1. Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that: (i) if disclosed orally is designated as confidential at the time of disclosure; (ii) if disclosed in writing is marked as “Confidential” and/or “Proprietary”; or (iii) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the provision of the Services and/or the iCareBetter Site, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include PHI (which is governed by Section 14.e) or any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (4) is received from a third party without breach of any obligation owed to the Disclosing Party.
    2. Non-Disclosure. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Receiving Party’s obligations under this Agreement, provided that the Receiving Party certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain such Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own information of a confidential and proprietary nature, but in no event less than a reasonable degree of care.
    3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s request and cost, if the Disclosing Party wishes to contest the disclosure.
    4. Injunctive Relief. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality obligations hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
  13. Term; Termination.
    1. Term. This Agreement will commence as of the date of User’s acceptance of the terms and conditions herein, whether by clicking on the “Accept” button or by downloading, accessing or otherwise using the Services and/or the iCareBetter Site, and shall continue in effect for a period set forth in the Order Form or, if no period is set forth in the Order Form, for a period of one (1) year (as applicable, the “Initial Term”). This Agreement will automatically renew for successive periods of the same length as the Initial Term unless either party notifies the other party in writing at least thirty (30) days prior to the end of the Initial Term, or any renewal period, of its election not to renew this Agreement. The Initial Term and all renewal periods are collectively referred to herein as the “Term.”
    2. Termination. User or iCareBetter may terminate this Agreement if the other party breaches a material term of this Agreement and fails to cure such breach within ten (10) days of receiving notice.
    3. Suspension. iCareBetter may immediately suspend or terminate this Agreement, with regard to User and/or any Practice Member, in the event that iCareBetter believes in its sole good faith determination that a Practice Member has engaged in inappropriate or unprofessional conduct, failed to fulfill the requirements set forth in Section 6.b, or otherwise breached any provision of this Agreement. iCareBetter further reserves the right, at its sole discretion, to terminate this Agreement immediately, with regard to User and/or any Practice Member, for User’s or a Practice Member’s repeated rescheduling or cancelling of appointments.
    4. Survival. The following shall survive expiration or termination of this Agreement: Sections 2.d.i, 2.d.ii,4,5, 7– 14, and all other terms which by their nature are reasonably intended to survive.
  14. Miscellaneous.
    1. Assignment. Neither party may assign this Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of the other party, except that iCareBetter has the unrestricted right to assign this Agreement to an affiliate or in the event of a sale, merger or acquisition of any portion of its business to which this Agreement relates. Any attempted transfer in violation of this Section 14.a will be void and of no effect. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
    2. No Inducement. Nothing contained in this Agreement, including any compensation paid or payable, is intended or shall be construed: (i) to require, influence, or otherwise induce or solicit a party or any of its affiliates for referrals or arranging for the referrals of persons for items or services, or recommending the ordering of any items or services, of any kind whatsoever, to any of the other parties or their affiliates, or to any other person; (ii) as splitting of any professional fees paid to User; (iii) to interfere with a patient’s right to choose his or her own health care provider, or with a provider’s judgment regarding the ordering of any items or health care services; or (iv) as remuneration in exchange for a disclosure of PHI or other information from a Customer or otherwise.
    3. Notices. All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be sufficiently given if sent (i) to iCareBetter via email to info@icarebetter.com; or (ii) to User via email to the designated billing contact or address on file. User expressly consents to the provision of notices via email. Either party may update its preferred notice address at any time upon notice to the other party. Any such notice or other communication shall be deemed to be given as of the date it is delivered to the recipient or, if delivered on a non-business day, on the next business day.
    4. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Massachusetts without reference to the conflict of laws provisions thereof.
    5. Arbitration Agreement. User and iCareBetter acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, iCareBetter’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of this Agreement, and that upon User’s acceptance of this Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce this Agreement against User as the third-party beneficiary hereof.
      1. Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of this Agreement directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Middlesex, Massachusetts. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
      2. Costs of Arbitration. The Rules will govern payment of all arbitration fees. iCareBetter will pay all arbitration fees (not including User’s attorneys’ fees) for claims less than seventy-five thousand dollars ($75,000). iCareBetter will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that User’s claim is frivolous.
      3. Small Claims Court; Infringement. Either User or iCareBetter may assert claims, if they qualify, in small claims court in Middlesex, Massachusetts or any United States county where User lives or works. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
      4. Waiver of Jury Trial. USER AND ICAREBETTER WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. User and iCareBetter are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between User and iCareBetter over whether to vacate or enforce an arbitration award, USER AND iCareBetter WAIVE ALL RIGHTS TO A JURY TRIAL and elect instead to have the dispute be resolved by a judge.
      5. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
      6. Arbitration Severability. If the prohibition against class actions and other claims brought on behalf of third parties, or any other part of this Section 14.e is found to be unenforceable, then all of the other language in this Agreement and this Section 14.e will remain enforceable. To the extent that User or iCareBetter are permitted to bring a claim relating to this Agreement in state or federal court, then such claim shall only be brought in courts located in New York, New York.
    6. Force Majeure. Except for a party’s payment obligations, the performance of either party under this Agreement may be suspended to the extent and for the period of time that such party is prevented or delayed from fulfilling its obligations due to causes beyond its reasonable control (including, without limitation, acts of God, acts of civil or military authority, new legislation or regulatory requirements, strikes or other labor disturbances, fires, floods, epidemics or pandemics, wars or riots). After thirty (30) cumulative days of suspension on the part of one party, the other party may, at its sole discretion and with written notice to the affected party, terminate its obligations without further liability.
    7. Modifications. No modification, amendment or waiver of this Agreement or any of its provisions shall be binding upon iCareBetter unless made in writing and agreed to by iCareBetter. iCareBetter may amend the terms and conditions of this Agreement by posting a notice on the User Account Page or otherwise reasonably notifying User at least thirty (30) days prior to such change taking effect, provided that if User does not agree to such changes, User may terminate this Agreement without penalty by providing iCareBetter with written notice of such election prior to such modification taking effect. User’s continued use of the Services and/or the iCareBetter Site following such period shall be deemed to be User’s acceptance of such change. A failure or delay of either party to: (i) insist upon the performance of any terms, conditions, rights or privileges of this Agreement; or (ii) exercise any rights or privileges conferred in this Agreement, shall not be construed as waiving any such terms, conditions, rights or privileges and the same shall continue and remain in full force and effect.
    8. Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
    9. Entire Agreement. This Agreement, any exhibits or addenda hereto, the policies referred to herein, and any Order Form, constitute the entire agreement between the parties and supersede all previous or contemporaneous agreements, promises, representations, whether written or oral, between the parties with respect to the subject matter hereof.
    10. Headings. The headings of the sections of this Agreement are for convenience only, and do not form a part hereof or in any way limit, define, describe, modify, interpret or construe the meaning, scope or intent of this Agreement or any terms or conditions therein.
    11. Independent Contractors. The relationship of the parties shall be that of independent contractors. Any employee, servant, subcontractor or agent of iCareBetter who is assigned to provide services under this Agreement shall remain at all times under the exclusive direction and control of iCareBetter and shall not be deemed to be an employee, servant, subcontractor or agent of User. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party as agent, employee, or in any other capacity, except as specifically provided herein.
    12. Third Party Beneficiaries. This Agreement is entered into solely between, and made for the sole benefit of, iCareBetter and User, and, subject to indemnification obligations and the limitations of liability herein, this Agreement will not be deemed to create any obligations, remedies or liabilities of a party to any third parties (including without limitation any Practice Member) unless explicitly stated herein. Except as otherwise stated in this Agreement, no third party shall have the right to make any claim or assert any right under this Agreement, and no third party shall be deemed a beneficiary of this Agreement.
    13. Remedies Cumulative. Unless expressly stated, no remedy afforded to a party under this Agreement shall preclude other remedies available under equity or law.