Effective Date: Dec 1, 2022
This User Agreement (this “Agreement”) is a contract between you (“you” or “User”) and Temp Fill-Ins (“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.tempfillins.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.
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.tempfillins.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 may either confirm or reject 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.
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.
6. 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.
7. 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.
For all questions about the services provided by this short code, you can send an email to email@example.com
8. 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.
10. 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.