Holistic Wellcare Advisers, LLC
824 Mountain Ave Apt 2D
Westfield, NJ 07090
908.721.2667
August 03, 2022
The following Practitioner Terms (this ““Agreement”) is entered into as of the effective date listed above (“Effective Date”), by and between HOLISTIC WELLCARE ADVISERS Inc. (“Holistic WellCare Advisers”, “us,” “our,” or “we”), and the party identified on the Practitioner Account Page (“Practitioner” or “you”) and any Office and Office Members (defined below) that you represent. This Agreement supplements the Terms of Use entered into between the parties and governs your access and use of the Platform as a Practitioner. Unless otherwise expressly defined below, the capitalized terms used herein have the meaning assigned to them in the Term of Use. If a capitalized term is not defined or has a meaning ascribed to it in the context in which it is used, the capitalized term will have the industry standard meaning.
As used in this Agreement, “Office” shall mean the entity on behalf of which Practitioner has engaged Holistic WellCare Advisers to provide the Services, and shall include the totality of all facilities, assistants, and other such wellness providers, and staff members (each a “Office Member”) located in the same office or affiliate offices, provided such affiliates are part of a single affiliated covered entity, for whom an account is created on the Holistic WellCare Advisers Site by Practitioner or who otherwise use the Services and/or the Holistic WellCare Advisers Site for the purpose set forth in this Agreement. In those instances, in which the Office does not have a separate corporate parent entering into this Agreement on the Office’s behalf as Practitioner, references to Practitioner herein shall also be construed to mean Office and references to Office herein shall be construed to mean Practitioner. This Agreement hereby incorporates by reference any Practitioner account page and/or Sign-Up Page accessible by Practitioner through the Services or other order form or agreement entered into by the parties (collectively, the “Practitioner Account Page”) and any addenda entered into by the parties, as if the terms of such Practitioner Account Page or addenda, as applicable, were stated herein.
BY ACCESSING, SIGNING, OR PROVIDING CREDIT CARD INFORMATION ON A PRACTITIONER ACCOUNT PAGE 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 PRACTITIONER AND THE OFFICE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ACKNOWLEDGE AND AGREE THAT ALL SUCH USE BY PRACTITIONER OR THE OFFICE IS SUBJECT TO SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS OR YOU ARE NOT AUTHORIZED TO BIND PRACTITIONER OR THE OFFICE, THEN DO NOT ACCESS, SIGN, OR PROVIDE CREDIT CARD INFORMATION ON THE PRACTITIONER ACCOUNT PAGE AND YOU THE PRACTITIONER AND THE OFFICE ARE NOT LICENSED OR PERMITTED TO USE THE SERVICES AND/OR THE HOLISTIC WELLCARE ADVISERS SITE. ALL OTHER USES OF THE SERVICES AND/OR THE HOLISTIC WELLCARE ADVISERS SITE ARE STRICTLY PROHIBITED.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT IN SECTION 16.f, BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU, OFFICE AND HOLISTIC WELLCARE ADVISERS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Holistic WellCare Advisers Services.
Services.
Subject to the terms and conditions of this Agreement and payment of the fees set forth in Section 6 and any Practitioner Account Page or addendum to this Agreement (if applicable), Holistic WellCare Advisers may provide a variety of services via the Holistic WellCare Advisers Site and Partner Sites (“Services”), which may include, but are not limited to: (I) hosting Office and Office Member profile web pages, and marketing Office Members and their services on the Holistic WellCare Advisers Site (collectively, the “Marketing Services”); (ii) wellness appointment scheduling services, integration to Practitioner’s practice management system, and appointment reminders for Customers (defined below in Section 5) (collectively, the “Scheduling Technology Services”); (iii) account relations services; (iv) billing, collection and payment services (collectively, the “Payment Services”), and (v) photography shoots of the Practitioner Office. Nothing herein is intended nor shall be construed as creating an exclusive arrangement between you and Holistic WellCare Advisers. This Agreement will not restrict (a) you from advertising in other publications or media or (b) Holistic WellCare Advisers from selling Ad Space to any third parties.
Practitioner Access.
During the Term, and subject to the terms and conditions of this Agreement, Holistic WellCare Advisers grants Practitioner the right to access and use the Services and/or the Holistic WellCare Advisers Site and to permit its Office Members, agents and subcontractors the right to access and use the Services and/or the Holistic WellCare Advisers Site solely on Practitioner’s behalf; provided, however, that Practitioner shall be responsible for any use of the Services and/or the Holistic WellCare Advisers Site by such Office Members, agents and subcontractors. During the Term and subject to the terms and conditions of this Agreement, Practitioner grants Holistic WellCare Advisers the right to access and use Practitioner’s practice management system and calendar system (“Practitioner’s Systems”), and to copy, extract and use all data necessary to provide the Services. Practitioner acknowledges and agrees that Holistic WellCare Advisers shall not be subject to any terms not set forth herein with respect to Practitioner’s Systems, including, but not limited to, any click-through agreements Holistic WellCare Advisers may be required to accept in connection with its use thereof. Practitioner will furnish to Holistic WellCare Advisers such cooperation, technical assistance, resources, and support as reasonably necessary or appropriate for Holistic WellCare Advisers to implement and perform the Services.
Practitioner Information.
Practitioner acknowledges and agrees that, in order to provide certain of Services, Holistic WellCare Advisers shall, and shall authorize its partners to, make certain Office information available to Holistic WellCare Adviser’s end users who have consented to Holistic WellCare Adviser’s terms of use (by clicking through the terms of use or using the Holistic WellCare Advisers Site or end-Practitioner-facing aspects of the Services) (“Customers”), including, without limitation: (is) the address, phone number, fax and email of the Office and Office Members; (ii) information regarding Office Member appointment availability; (iii) insurance plans in which each Office Member participates (i.e., with which each is “in-network”); (iv) general Office information; and (v) trademarks, logos and such other domains, images and materials that Practitioner provides to Holistic WellCare Advisers (“Practitioner Logos”) (collectively, “Practitioner Information”). Holistic WellCare Advisers and its partners may use, modify, display, and reproduce Practitioner Information in connection with providing and marketing the Services and the Holistic WellCare Advisers Site. Practitioner may request that Holistic WellCare Advisers modify Practitioner Information with additional information, links, or services. Holistic WellCare Advisers may incorporate such modifications and additional information into Practitioner’s profile posted on the Holistic WellCare Advisers Site in Holistic WellCare Adviser’s sole discretion.
Accounts.
Each Office Member shall create and maintain throughout the Term accounts and passwords (“Accounts”) to use the Services and/or the Holistic WellCare Advisers Site, including uploading, reviewing, and updating Practitioner Information via the Holistic WellCare Advisers Site. Account information shall be held in strict confidence by Practitioner and Office Members and Practitioner will be solely responsible for any disclosures of its Account information or use thereof by any unauthorized party. Practitioner shall immediately notify Holistic WellCare Advisers at Holistic WellCare Advisers: (i) following any unauthorized use, access, or other compromise of an Account (including any password); and (ii) when an Office Member leaves, is no longer employed, or otherwise ceases to be part of any Office. Holistic WellCare Advisers 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.
Reviews.
Holistic WellCare Advisers solicits feedback from Customers who use the Holistic WellCare Advisers Site regarding the Office and/or Office Members (“Reviews”), and Holistic WellCare Advisers may, in its sole discretion, make these Reviews available through posting on the Holistic WellCare Advisers Site and/or Partner Sites in accordance with the terms of use governing such websites. While Holistic WellCare Advisers may from time to time and in its sole discretion remove Reviews (for example, for violation of Holistic WellCare Adviser’s policies), Holistic WellCare Advisers shall have no obligation to (i) review Reviews for veracity, accuracy, or content, or (ii) remove any Reviews. Holistic WellCare Advisers shall have no liability to Practitioner with respect to, and Practitioner hereby releases Holistic WellCare Advisers from, all claims related to, arising from or in connection with Reviews, including without limitation claims that a Review is defamatory, libelous, false, misleading, unfair, deceptive, and/or disparaging. The foregoing release is made by Practitioner notwithstanding the provisions of California Civil Code Section 1542 (or any other statute or common law principle elsewhere with a similar effect as to the subject matter of the foregoing sentence) which provides: “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.” Practitioner expressly waives any and all rights it may have under the provisions of California Civil Code Section 1542 or any similar statute in any other authority. Information provided by or about Customers or associated with Customers that is contained in or part of Reviews is Customer Information (but is not protected health information) and is collected solely at the discretion of Holistic WellCare Advisers and not on behalf of Practitioner. Practitioner represents and warrants that it will not attempt to unduly influence or fraudulently create Reviews of its Office Members or other providers on the Holistic WellCare Advisers Site.
Practitioner Sourced Reviews.
If applicable, Holistic WellCare Advisers may also display through the Services certain reviews of Office Members submitted by Non-Holistic WellCare Advisers end users or Customers (defined below in Section 5) directly to Practitioner or an agent of Practitioner (“Practitioner Sourced Reviews”). The parties agree and acknowledge that Practitioner Sourced Reviews may not conform to the standard form of reviews Holistic WellCare Advisers customarily obtains from Customers, and accordingly, the parties agree to work in good faith to conform Practitioner Sourced Reviews to Holistic WellCare Adviser’s standard form for publication through the Services. Practitioner agrees and acknowledges that Holistic WellCare Advisers may, in its sole discretion, remove from display through the Services any Practitioner Sourced Review to the extent it violates Holistic WellCare Adviser’s then-current policies or is in violation of applicable laws.
Customer Information.
Customer Information is information that Customers provide directly to Holistic WellCare Advisers so that Holistic WellCare Advisers can provide services to Customers, and does not, will not and may not, include information processed by, obtained from or on behalf of Practitioner, the Office, or any Office Member. Customer Information includes, without limitation, information that Customers provide directly to Holistic WellCare Advisers regarding: (i) creating an account, (ii) searching wellness providers, (iii) completing questionnaires, (iv) leaving reviews of Office Members, or (v) utilizing Embedded Modules (defined below). Practitioner acknowledges and agrees that Customer Information does not, will not and may not include protected health information.
Content.
Holistic WellCare Advisers shall develop, compile, modify or otherwise maintain all content on the Holistic WellCare Advisers Site or as part of the Services, including, without limitation, any Office Member or Office photographs, and any content provided by Practitioner or any Customers. Practitioner acknowledges and agrees that Holistic WellCare Advisers may: (i) make content from the Holistic WellCare Advisers Site, including Practitioner Information, available on Partner Sites and through marketing initiatives; and (ii) use Office Member’s name and/or obtain certain insurance information including, without limitation, coverage, and benefit information. Practitioner shall obtain any necessary permission or consent from each Office and Office Member as may be required to share the Practitioner Information with Holistic WellCare Advisers and for Holistic WellCare Advisers to further use and disclose such information as described herein.
Software.
Acceptance. You may choose to review, download, or otherwise utilize certain software applications or other code and functionality from the Holistic WellCare Advisers Site or otherwise provided by Holistic WellCare Advisers (“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.
Definitions.
“Embedded Module” means html and other code and functionality provided by Holistic WellCare Advisers that is displayed on a Practitioner Website (defined below) and that allows End Practitioners to access and view Holistic WellCare Advisers Content on the Practitioner Website. Embedded Modules include, without limitation, the “Book Online Button,” “white labels,” and other widgets and functionality that Holistic WellCare Advisers may provide for use on a Practitioner Website from time to time.
“End Practitioner” means a visitor to the Practitioner Website.
“Practitioner Website” means the Practitioner URL(s), domain(s) or other web properties accessing or hosting an Embedded Module.
“Holistic WellCare Advisers Content” means all data, information and content provided or otherwise made available by or on behalf of Holistic WellCare Advisers through or in connection with the Services and the Holistic WellCare Advisers Site. Holistic WellCare Advisers Content includes the Holistic WellCare Advisers Marks, links and search functionality leading to the Holistic WellCare Advisers Site, and advertising for Holistic WellCare Advisers or for third party products. In addition, Holistic WellCare Advisers 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.
“Holistic WellCare Advisers Marks” means the Holistic WellCare Advisers name and any trade name, trademark, service mark, or logo of Holistic WellCare Advisers.
Licenses.
Software.
Subject to the terms and conditions of this Agreement and during the Term hereof, Holistic WellCare Advisers hereby grants Practitioner a limited, non-exclusive, non-sublicensable, non-transferable and revocable right to use the Software for its internal business purposes and solely in connection with the relevant Services. Holistic WellCare Advisers reserves all rights to the Software not expressly granted hereunder.
Embedded Modules.
Subject to the terms and conditions of this Agreement and during the Term hereof, Holistic WellCare Advisers hereby grants to Practitioner a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to (i) embed the html and other code provided by Holistic WellCare Advisers hereunder on the Practitioner Website in order to display the Embedded Modules on the Practitioner Website; and (ii) use the Embedded Modules on the Practitioner Website solely for the intended purposes to access and display certain Holistic WellCare Advisers Content made available by Holistic WellCare Advisers via the Embedded Modules to End Practitioners. Upon Holistic WellCare Adviser’s request, Practitioner agrees to immediately remove any Embedded Modules from the Practitioner Website. Except as expressly described herein, Practitioner is not licensed to use the Embedded Modules for any other purpose and nothing in this Agreement shall be deemed to grant Practitioner any other right, title, or interest in the Embedded Modules.
Holistic WellCare Advisers Marks.
Subject to the terms and conditions of this Agreement, Practitioner may display Holistic WellCare Advisers Marks on the Practitioner Website in connection with the presentation of the Embedded Module and Holistic WellCare Advisers Content; provided that all goodwill related to such name and logo, and all uses thereof, and any accrued goodwill shall inure solely to the benefit of Holistic WellCare Advisers. If Holistic WellCare Advisers determines in its sole discretion that any use of Holistic WellCare Advisers Marks may be detrimental to Holistic WellCare Advisers or its business or otherwise objectionable (in Holistic WellCare Adviser’s sole discretion), then Practitioner will promptly cease such use or modify its use to be consistent with Holistic WellCare Adviser’s reasonable requests. Upon any termination of this Agreement, Practitioner will immediately cease all use of Holistic WellCare Advisers Marks, and any other similar mark, name, or logo.
Practitioner Website Terms.
Practitioner hereby agrees that Practitioner will provide the Embedded Modules and Holistic WellCare Advisers Content to End Practitioners subject to the same terms and conditions that End Practitioners are subject to with respect to Practitioner’s own products or services on the Practitioner Website (“End Practitioner Terms”). Practitioner acknowledges and agrees that (i) each End Practitioner affirmatively accepts the End Practitioner Terms in connection with such End Practitioner’s use of the Practitioner Website; and (ii) such End Practitioner Terms include at least the following: (x) all legally required, and otherwise appropriate disclaimers related to the Embedded Modules and Holistic WellCare Advisers Content and its use, and (y) provisions regarding Practitioner’s collection and processing of End Practitioners’ information in compliance with all applicable laws and regulations and consistent with this Agreement. Further, End Practitioners shall be required to accept Holistic WellCare Adviser’s Terms of Use and Privacy Policy if such End Practitioners elect to use Holistic WellCare Adviser’s services or access the Holistic WellCare Advisers Site.
Proprietary Rights and Restrictions.
Feedback. Practitioner may choose to provide Holistic WellCare Advisers with comments concerning the Services or the Holistic WellCare Advisers Site and Practitioner’s use thereof, which may include bug reports, evaluations, proposed product integrations (and associated metrics and learnings) (collectively, “Feedback”). Practitioner hereby assigns to Holistic WellCare Advisers all rights, title, and interest to the Feedback, for any and all commercial and non-commercial purposes, with no obligation of any kind to Practitioner.
Restrictions.
Except as expressly authorized under this Agreement, Practitioner 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 Holistic WellCare Advisers Site; (ii) circumvent or attempt to circumvent any restrictions on, access to, or use of the Holistic WellCare Advisers 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 Holistic WellCare Advisers Site; (iv) use the Holistic WellCare Advisers Site for any unlawful purpose, including to phish, spam, or distribute malware; (v) otherwise use the Holistic WellCare Advisers Site on behalf of any third party or on any websites other than the Practitioner Website, or to create or maintain a separate online scheduling platform, or other similar product or service; (vi) resell, disclose, publish or distribute the Holistic WellCare Advisers Site, including any information created, received, processed or provided through the Services or the Holistic WellCare Advisers Site; (vii) use the Holistic WellCare Advisers 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 Holistic WellCare Advisers Site; or (ix) remove or alter any branding, identifying, or notices included with the Software (including, but not limited to, “Powered by Holistic WellCare Advisers” or other Holistic WellCare Advisers Marks).
Placement. Holistic WellCare Advisers prohibits the placement of the Software or Holistic WellCare Advisers Content on Practitioner Websites that include content that is offensive, abusive, harassing, threatening, discriminatory, vulgar, pornographic, or otherwise inappropriate, as determined by Holistic WellCare Advisers in its sole discretion. Practitioner may not display the Embedded Modules or Holistic WellCare Advisers Content in a manner that does not permit successful linking or redirection to the Holistic WellCare Advisers Website or delivery of the applicable Services to the End Practitioner. Partner may not insert any intermediate page, splash page or other content between the Embedded Modules and the Holistic WellCare Advisers Website.
Telecommunication Enabling Services.
Telecommunication Encounters. Subject to the terms and conditions of this Agreement, Holistic WellCare Advisers may provide services that will enable Customers to access wellness encounters with Office Members via telecommunication technology (“Telecommunication Encounters”), which may be conducted through either (i) the Office’s existing telecommunication capabilities, or (ii) an interactive, two-way audio-visual communications system that Holistic WellCare Advisers will facilitate through its Software.
Telecommunication Marketing and Scheduling and Telecommunication Facilitation Services. Holistic WellCare Adviser’s services shall be limited to Marketing and Scheduling Services for Telecommunication Encounters (“Telecommunication Marketing and Scheduling Services”), and under no circumstances shall Holistic WellCare Advisers be deemed to be the provider of Telecommunication Encounters. Holistic WellCare Adviser’s services may also include the technological facilitation of Telecommunication Encounters between Office Members and Customers via an interactive, two-way audiovisual communications system (the “Telecommunication Facilitation Services”). The Telecommunication Marketing and Scheduling Services, and if applicable, the Telecommunication Facilitation Services, are included in the definition of “Services” hereunder.
Telecommunication Facilitation Software.
Holistic WellCare Advisers may, in its sole discretion, choose to provide Telecommunication Facilitation Services using its own telemedicine technology or by partnering with a third-party technology provider. In either case, the Telecommunication Facilitation Services are included in the definition of “Software” under the Agreement, and are, accordingly, subject to the same terms and conditions that apply to other Software hereunder.
Telecommunication Representations and Warranties.
Practitioner represents, warrants, and covenants that, at all times during the Term:
Each Office Member who engages in Telecommunication Encounters possesses all valid, unexpired, unrevoked, and unrestricted licenses, authorizations, and certifications (collectively, the “Licenses”) as may be required to engage in Telecommunication Encounters. Such Licenses include but are not limited to (i) a license to practice medicine in the authority where the Customer is located, unless the Office Member qualifies for an applicable exemption, and (ii) any Licenses that are required for Telecommunication Encounters within a certain sub-specialty of medicine.
Telecommunication Encounters will be provided by Office Members in a manner that complies with all applicable state and federal laws and regulations, including, but not limited to, those that relate to (i) Office Members’ scope of practice, (ii) remote prescribing, (iii) permitted modalities of telemedicine, (iii) privacy and security, and (iv) coding, billing, and collection activities.
Offices shall obtain informed consent from Customers prior to engaging in Telecommunication Encounters, and such informed consent will comply with all applicable laws and regulations that may apply to wellness services delivered via telemedicine; and Practitioner shall be responsible for establishing policies and procedures that shall be operationalized in the event that a Customer requires emergency wellness services during a Telecommunication Encounter.
Practitioner Responsibilities.
Practitioner Information.
Practitioner will cooperate with Holistic WellCare Advisers or its agents to verify the information specified in Section 8.b, Practitioner Information, and any other information that Holistic WellCare Advisers in its sole discretion deems necessary to confirm Office Members’ professional qualifications. Practitioner will promptly update and notify Holistic WellCare Advisers, in accordance with Section 8.b, of any change in Practitioner Information, including Office Member licensure status and any applicable disciplinary action involving the Office Member. Practitioner is solely responsible for any liability or expense resulting from outdated or inaccurate Practitioner Information. Practitioner agrees that Holistic WellCare Advisers may, in its sole discretion, modify the processes and criteria it uses to evaluate Office Members’ qualifications, including with respect to any specialty listing, and may reject an Office Member from being included in the Services for failure to meet Holistic WellCare Adviser’s eligibility standards, in Holistic WellCare Adviser’s sole discretion.
Acceptance of Customers.
Practitioner’s acceptance of an appointment scheduling request from Holistic WellCare Advisers for a Customer constitutes, for the purposes of this Agreement, Practitioner’s acceptance of such Customer as a client. Practitioner is fully and solely responsible for all services rendered to Customer, and for collecting payment from Customer for all services rendered. Holistic WellCare Advisers will have no responsibility for collection (subject to Holistic WellCare Adviser’s obligations for Payment Services, as applicable) or any liability whatsoever for fees for services due to Practitioner that are unpaid by Customer.
Incorrect Practitioner Information.
Practitioner agrees that any Customer who makes an appointment with Practitioner based on out-of-date or incorrect Practitioner Information shall not be charged for any fees disputed or not otherwise covered by the Customer’s insurance provider as a result of Practitioner’s failure to provide accurate Practitioner Information.
Scheduling Requests.
Practitioner will respond to Customer scheduling requests within a reasonable amount of time, but in no event more than twenty-four (24) hours after receipt of Holistic WellCare Adviser’s request for an appointment on behalf of a Customer. Practitioner acknowledges and agrees that repeated rescheduling or cancelling of Customer appointments may result in Practitioner or the relevant Office Member(s) being removed from, or otherwise affected in the order of display of, appointment listings available to Customers, in Holistic WellCare Adviser’s sole discretion.
Confirmation of Customer Information.
If a Customer submits Customer Information on the Holistic WellCare Advisers Site and authorizes Practitioner to have access to such information in advance of an appointment, at the Customer’s appointment Practitioner will (i) provide Customer with a copy of such Customer Information, and (ii) give Customer an opportunity to review and accept or revise such Customer Information. Practitioner hereby acknowledges, agrees, releases, and indemnifies Holistic WellCare Advisers from all claims and liability arising out of, related to, or in connection with Practitioner’s failure to have Customer accept the Customer Information or arising out of, related to, or in connection with any omissions or errors in any Customer Information provided through the Services. Practitioner has no rights in the Customer Information maintained by Holistic WellCare Advisers other than as expressly provided hereunder. If Holistic WellCare Advisers becomes aware that a Practitioner is using any Customer Information obtained through the Services and/or the Holistic WellCare Advisers Site in a manner that is inconsistent with the terms of this Agreement, Holistic WellCare Adviser’s terms of use or privacy policy, or applicable law, Holistic WellCare Advisers may, without limiting any of its other remedies available at law or in equity, request that Practitioner immediately cease such inconsistent use and/or immediately terminate such Practitioner’s rights with respect to the Services and/or the Holistic WellCare Advisers Site. Holistic WellCare Advisers may, but has no obligation to, delete any content that Holistic WellCare Advisers, in its sole discretion, deems inappropriate for inclusion on the Holistic WellCare Advisers Site.
Contact.
Practitioner agrees that Holistic WellCare Advisers may contact any Office Member regarding the Services, the Software, and/or the Holistic WellCare Advisers Site. If Practitioner has opted out of receiving any email or facsimile communications from Holistic WellCare Advisers then, as a condition of receiving the Services hereunder, Practitioner expressly opts back in to receiving such email and facsimile communications and hereby withdraws it opt out.
Non-Holistic WellCare Advisers Clients.
Practitioner may elect to use certain specific Services for clients who are not Holistic WellCare Advisers end users, such booking appointments for, or having appointment reminders sent to, such clients. Practitioner shall be responsible for obtaining any required consents, permissions, or authorizations from such clients for the use and provision of such Services, including disclosure to and use by Holistic WellCare Advisers of the information (which for the avoidance of doubt shall not include protected health information) of any such clients consistent with the terms of this Agreement and applicable law. Holistic WellCare Advisers may send information, including but not limited to information regarding Holistic WellCare Advisers, the Services and/or certain resources, to such clients.
Fees and Payments.
Services Fees. In consideration of the Services provided hereunder, Practitioner shall pay Holistic WellCare Advisers any initial set up or recurring fees specified on Practitioner’s account page on the Holistic WellCare Advisers Site (“Practitioner Account Page”) or elsewhere in the applicable Practitioner Account Page. Prices shown on the Practitioner Account Page do not include any taxes that may apply. Practitioner agrees to pay any sales and other taxes that may apply (excluding taxes based on Holistic WellCare Adviser’s income) unless Practitioner provides Holistic WellCare Advisers with a valid signed tax exemption certificate applicable to the Services and the Offices. Holistic WellCare Advisers may invoice Practitioner 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 Practitioner Account Page, as applicable. All invoices provided by Holistic WellCare Advisers hereunder are due immediately, and Holistic WellCare Advisers may charge Practitioner’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. Practitioner agrees to these recurring charges.
Other Fees.
In addition to those fees set forth in Section 6.a, Practitioner shall pay Holistic WellCare Advisers the fees set forth in any addendum or Practitioner Account Page entered into by the parties.
Termination.
Upon termination of this Agreement for any reason, Practitioner shall pay to Holistic WellCare Advisers all fees due or accrued under this Agreement and any addendum or Practitioner Account Page entered into by the parties as of the date of such termination. Notwithstanding anything to the contrary in this Agreement or in any addendum, Holistic WellCare Advisers shall not refund to Practitioner any fees paid prior to expiration or termination of this Agreement.
Participation; Services.
Holistic WellCare Advisers 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 Practitioner payments for the applicable Marketing and Scheduling Technology Services are (i) consistent with reasonable value in an arm’s length transaction, (ii) not based on the value or volume of any items or services provided by Practitioner to Customers, and (iii) do not constitute splitting of any professional fees paid to Practitioner. The Services impose no requirements on the manner in which Practitioner provides services to Customers, except that Practitioner agrees not to charge any Customers different rates based upon, nor to charge Customers a fee for, such Customers booking through the Holistic WellCare Advisers Site or otherwise using Holistic WellCare Advisers services.
Limitation of Liability for Use.
Disclaimer. The parties acknowledge and agree that Holistic WellCare Advisers is not responsible for: (i) the accuracy, reliability, timeliness, or completeness of Practitioner Information, Benefit Information (defined below), Customer Information, other data provided by Customers, or any other data or information provided or received through the Services and/or the Holistic WellCare Advisers Site; (ii) any results that may be obtained from the use of the Services and/or the Holistic WellCare Advisers Site; (iii) the provision of Practitioner’s services as a result of Practitioner’s reliance on any Customer Information or other data provided through the Services and/or the Holistic WellCare Advisers Site; (iv) the cancelling or rescheduling of any appointment booked through the Services and/or the Holistic WellCare Advisers Site; (v) use of the Software after the Term; or (vi) losses or injury arising from Practitioner’s failure to implement and maintain the safeguards set forth in Section 8.a.ii, or arising from a security incident not caused by Holistic WellCare Advisers.
Health Care.
Practitioner acknowledges and agrees that Holistic WellCare Advisers is not a health care provider, licensed or otherwise. Holistic WellCare Advisers cannot and will not assume responsibility for the direct care of any Practitioner’s customers or clients, which shall at all times remain the responsibility of Practitioner, Office(s) and Office Members. Holistic WellCare Advisers will not be responsible for the assignment of staff to treat Customers, other clients, or any other activity that involves the provision of wellness services.
Benefit Information.
Practitioner may receive certain insurance-related information (including without limitation coverage and benefit information) of Customers (“Benefit Information”) through the Services. Practitioner’s receipt of Benefit Information is subject to the terms and conditions in this Section 7.c. Practitioner agrees and acknowledges that: (i) Practitioner is aware that the Benefit Information is obtained via a clearing house and/or from the applicable insurance provider or Customer; (ii) Holistic WellCare Advisers cannot confirm the accuracy of the data it receives from such clearing house and/or insurance provider or Customer; (iii) HOLISTIC WELLCARE ADVISERS MAKES NO GUARANTEES AND DISCLAIMS ALL WARRANTIES THAT SUCH BENEFIT INFORMATION IS ACCURATE, TIMELY, COMPLETE OR ERROR-FREE; and (iv) Practitioner is ultimately responsible for verifying all Benefit Information with the applicable insurance carrier and Customer.
Representations, Warranties and Covenants of Practitioner.
Confidentiality. Practitioner represents, warrants and covenants that: (i) it will maintain the confidentiality of Customer Information and shall only use Customer Information or the information of other clients 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 Information, Account information, and Holistic WellCare Advisers Confidential Information, and to prevent such information from improper use and disclosure.
Office Member Information.
Practitioner represents, warrants and covenants that at all times during the Term: (i) Practitioner will provide Holistic WellCare Advisers with complete and accurate information about Office Members’ specialties (in accordance with and subject to Holistic WellCare Adviser’s then-current guidelines on specialty listings), practice affiliations, association memberships, board certifications, insurance participation, and contact information (including Office Members’ professional address and phone and fax numbers); (ii) Practitioner will provide Holistic WellCare Advisers accurate and up-to-date information regarding each Office Member’s appointment availability; (iii) each Office 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 Practitioner or an Office Member to a Customer resulting from Practitioner’s or an Office Member’s use of the Services and/or the Holistic WellCare Advisers Site (and Practitioner shall confirm the same to Holistic WellCare Advisers on at least an annual basis), and (C) necessary for Holistic WellCare Advisers to display Practitioner’s and Office Members’ specialties; (iv) each Office Member has entered into a valid and unexpired collaborative practice or other agreements to the extent required for such Office Member to practice at the applicable Offices (including such agreements to the extent the same is a condition of such Office Member’s license); (v) each Office Member is a member in good standing in any occupation in which he or she practices with appropriate clinical privileges (if applicable), and is employed by or affiliated with Practitioner; (vi) each Office Member possesses valid and unrestricted state and federal narcotic and controlled substances registrations, as applicable; (vii) Practitioner will obtain and maintain, and ensure that each Office 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 Office Member’s practice; (vii) each Office Member provide all clients presenting themselves for wellness services without regard to such clients’ race, religion, gender, sexual orientation, disability, payer source or other unlawful considerations; (ix) the wellness provider primarily providing services for an appointment shall be the Office Member with whom such appointment is booked; (x) Practitioner will use, and ensure that each Office Member uses, the Services and the Holistic WellCare Advisers Site in compliance with all applicable laws and regulations; (xi) Practitioner has the right to enter into and subject the Office and each Office Member to the terms and conditions of this Agreement; (xii) Practitioner has obtained from each Office Member all right, title and interest necessary for Holistic WellCare Advisers to provide the Services to Practitioner on behalf of such Office Member; and (xii) each Office Member shall comply with the then-current Holistic WellCare Advisers Community Standards available at https://www.Holistic WellCare Advisers.com/about/community standards/ or any successor location (“Community Standards”). Practitioner represents, warrants and covenants that it will notify Holistic WellCare Advisers within five (5) days of any additional information applicable to Practitioner’s or an Office Member’s practice, any changes with respect to any information provided to Holistic WellCare Advisers, or if at any point Practitioner or an Office Member is no longer in compliance with any of the warranties, representations, or covenants in this Section 8.b, except that: (A) Practitioner will have fifteen (15) days to notify Holistic WellCare Advisers with respect to any additional information applicable to Practitioner’s or an Office Member’s practice or changes of the information provided by Practitioner pursuant to Section 8.b.i, and (B) Practitioner will notify Holistic WellCare Advisers 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 Practitioner pursuant to Section 8.b.ii. Practitioner shall be liable for any failure by Office Members to meet the foregoing requirements of this Section 8.b.
Competition.
Practitioner acknowledges, represents, warrants and covenants that it will not, and will ensure that each Office 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 Practitioner, including each Office Member, notwithstanding that such Practitioner or any such Office Member has not elected to use the Payment Services.
Discount Reporting.
Practitioner 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 Practitioner paid for the applicable Marketing and Scheduling Technology Services hereunder (i.e., net of any applicable discounts, rebates, or other price concessions).
Ownership Rights.
Practitioner represents, warrants and covenants that it has all necessary right, title and interest in and to the content submitted by Practitioner to Holistic WellCare Advisers in order for Holistic WellCare Advisers to perform the Services, including any and all rights and interests in or to Practitioner Information and any copyright, trademark, other intellectual property, publicity, and privacy (including necessary consents, authorizations and/or other legal permissions).
Practitioner Sourced Reviews.
Practitioner represents and warrants that (a) it has obtained all rights, titles, interests, consents and authorizations necessary in accordance with applicable law for Holistic WellCare Advisers to publish Practitioner Sourced Reviews through the Services, (b) each Practitioner Sourced Review is unbiased and no remuneration has been or will be provided to the applicable client for his or her review, and (c) each Practitioner Sourced Review has been provided to Practitioner or its agent by a client of Practitioner in connection with services actually provided (or that ought to have been provided, as the case may be) by the Office Member associated with the applicable Practitioner Sourced Review.
Indemnification.
Practitioner will defend, indemnify and hold harmless Holistic WellCare Advisers 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 Practitioner or an Office Member to a Customer or other client resulting from Practitioner’s or a Office Member’s use of the Services and/or the Holistic WellCare Advisers Site; (ii) any fees, costs or expenses in connection with any services or treatment provided by Practitioner or a Office Member to a Customer or other client resulting from Practitioner’s or a Office Member’s use of the Services and/or the Holistic WellCare Advisers Site; (iii) use of the Services by, or provision of the Services to; (iv) gross negligence, willful or intentional misconduct, or fraud by a Practitioner, Office, or Office Member; (v) any breach of Sections 2.e, 3.d, 4.e, 8 or 10.a.ii; (vi) Practitioner Sourced Reviews; or (vii) Practitioner Information.
Other Representations and Warranties; Disclaimer of Warranties.
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.
No Other Warranties.
EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES, SOFTWARE AND THE HOLISTIC WELLCARE ADVISERS 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, HOLISTIC WELLCARE ADVISERS 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 HOLISTIC WELLCARE ADVISERS SITE BEING BUG-FREE, ERROR-FREE OR FREE FROM DEFECTS.
Limitation of Liability.
Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL HOLISTIC WELLCARE ADVISERS OR ITS PARTNERS, SUPPLIERS, VENDORS OR LICENSORS BE LIABLE TO PRACTITIONER, 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, HOLISTIC WELLCARE ADVISERS SITE, OR PARTNER SITES, (iv) PROVISION OF SERVICES, HEALTH CARE OR OTHERWISE, TO CUSTOMERS, OR (v) PRACTITIONER SOURCED REVIEWS, WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY, EVEN IF HOLISTIC WELLCARE ADVISERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF HOLISTIC WELLCARE ADVISERS 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, PRACTITIONER, THE PRACTICE OR A PRACTICE MEMBER, AND, ON THE OTHER HAND, HOLISTIC WELLCARE ADVISERS OR ANY THIRD-PARTY THAT IS A PARTNER, VENDOR, SUPPLIER, LICENSOR OR LICENSEE OF HOLISTIC WELLCARE ADVISERS, EXCEED THE GREATER OF: (Y) THE AGGREGATE OF THE AMOUNT OF FEES ACTUALLY PAID BY PRACTITIONER TO HOLISTIC WELLCARE ADVISERS HEREUNDER DURING THE PREVIOUS TWELVE (12)-MONTH PERIOD, OR (Z) ONE HUNDRED DOLLARS ($100).
Marks; Non-Disparagement.
Holistic WellCare Advisers Marks. Any use of a Holistic WellCare Advisers Mark by Practitioner that is not expressly permitted hereunder will, in each case, be subject to the prior written approval of Holistic WellCare Advisers. In addition, any such use of a Holistic WellCare Advisers Mark will be subject to Holistic WellCare Adviser’s then-current trademark usage guidelines. Holistic WellCare Advisers reserves the right to terminate Practitioner’s right to use any Holistic WellCare Advisers Mark immediately upon the issuance of written notice if Holistic WellCare Advisers determines Practitioner to be in violation of such guidelines in its sole discretion. Practitioner acknowledges and agrees that it shall not (i) make any comparative references to Holistic WellCare Advisers, its pricing, or the Services or Holistic WellCare Advisers Site; or (ii) disparage or otherwise denigrate Holistic WellCare Advisers or the Services or Holistic WellCare Advisers Site.
Practitioner Logos.
Practitioner hereby grants Holistic WellCare Advisers a non-exclusive, royalty-free license to use Practitioner Logos in connection with the Services during the Term.
Intellectual Property.
All right, title and interest, including without limitation all intellectual property rights, in and to the Services, Software and the Holistic WellCare Advisers Site, including all content submitted by Customers or Practitioner thereto (other than Practitioner Logos), as well as all URLs and domains registered by Holistic WellCare Advisers (even if such URLs and domains incorporate Practitioner Logos), shall remain the valuable and exclusive property of Holistic WellCare Advisers. Holistic WellCare Advisers 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 Holistic WellCare Advisers 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 Holistic WellCare Advisers Site.
Confidentiality.
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 Practitioner Account Page hereunder), the provision of the Services and/or the Holistic WellCare Advisers Site, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include protected health information 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.
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.
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.
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.
Term; Termination.
Term. This Agreement will commence as of the date of Practitioner’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 Holistic WellCare Advisers Site, and shall continue in effect for a period set forth in the Practitioner Account Page or, if no period is set forth in the Practitioner Account Page, 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.”
Termination.
Practitioner or Holistic WellCare Advisers 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.
Suspension.
Holistic WellCare Advisers may immediately suspend or terminate this Agreement, with regard to Practitioner and/or any Office Member, in the event that Holistic WellCare Advisers believes in its sole good faith determination that a Office Member has engaged in inappropriate or unprofessional conduct, failed to fulfill the requirements set forth in Section 8.b, or otherwise breached any provision of this Agreement. Holistic WellCare Advisers further reserves the right, at its sole discretion, to terminate this Agreement immediately, with regard to Practitioner and/or any Office Member, for Practitioner’s or a Office Member’s repeated rescheduling or cancelling of appointments.
Survival.
The following shall survive expiration or termination of this Agreement: Sections 2.e.i, 2.e.ii, 6, 7, 9 – 16, and all other terms which by their nature are reasonably intended to survive.
Miscellaneous.
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 Holistic WellCare Advisers 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 16.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.
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 Practitioner; (iii) to interfere with a client’s right to choose his or her own wellness provider, or with a provider’s judgment regarding the ordering of any items or wellness services; or (iv) as remuneration in exchange for a disclosure of any information from a Customer or otherwise.
Non-Competition.
Practitioner acknowledges and agrees that the use and disclosure of Holistic WellCare Adviser’s Confidential Information would inevitably occur if Practitioner utilized any services by any competitor of Holistic WellCare Advisers during the Term.
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 to Practitioner via email at info@holisticwellcareadvisers.com WellCare Advisers. Practitioner 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.
Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas without reference to the conflict of law’s provisions thereof.
Arbitration Agreement.
Practitioner and Holistic WellCare Advisers acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, Holistic WellCare Adviser’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of this Agreement, and that upon Practitioner’s acceptance of this Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Practitioner as the third-party beneficiary hereof.
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 the State of Texas. 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 authority.
Costs of Arbitration.
The Rules will govern payment of all arbitration fees. Holistic WellCare Advisers will pay all arbitration fees (not including Practitioner’s attorneys’ fees) for claims less than seventy-five thousand dollars ($75,000). Holistic WellCare Advisers will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that Practitioner’s claim is frivolous.
Small Claims Court; Infringement.
Either Practitioner or Holistic WellCare Advisers may assert claims, if they qualify, in small claims court in the State of Texas or any United States county where Practitioner 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 authority, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
Waiver of Jury Trial.
PRACTITIONER AND HOLISTIC WELLCARE ADVISERS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Practitioner and Holistic WellCare Advisers 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 extremely limited review by a court. In any litigation between Practitioner and Holistic WellCare Advisers over whether to vacate or enforce an arbitration award, PRACTITIONER AND HOLISTIC WELLCARE ADVISERS WAIVE ALL RIGHTS TO A JURY TRIAL and elect instead to have the dispute be resolved by a judge.
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 PRACTITIONER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PRACTITIONER.
Arbitration Severability.
If the prohibition against class actions and other claims brought on behalf of third parties, or any other part of this Section 16.f is found to be unenforceable, then all of the other language in this Agreement and this Section 16.f will remain enforceable. To the extent that Practitioner or Holistic WellCare Advisers 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 the State of Texas.
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.
Modifications.
No modification, amendment, or waiver of this Agreement or any of its provisions shall be binding upon Holistic WellCare Advisers unless made in writing and agreed to by Holistic WellCare Advisers. Holistic WellCare Advisers may amend the terms and conditions of this Agreement by posting a notice on the Practitioner Account Page or otherwise reasonably notifying Practitioner at least thirty (30) days prior to such change taking effect, provided that if Practitioner does not agree to such changes, Practitioner may terminate this Agreement without penalty by providing Holistic WellCare Advisers with written notice of such election prior to such modification taking effect. Practitioner’s continued use of the Services and/or the Holistic WellCare Advisers Site following such period shall be deemed to be Practitioner’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.
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.
Entire Agreement.
This Agreement, any exhibits, or addenda hereto, the policies referred to herein, and any Practitioner Account Page, 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.
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.
Independent Contractors.
The relationship of the parties shall be that of independent contractors. Any employee, servant, subcontractor, or agent of Holistic WellCare Advisers who is assigned to provide services under this Agreement shall remain at all times under the exclusive direction and control of Holistic WellCare Advisers and shall not be deemed to be an employee, servant, subcontractor, or agent of Practitioner. 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.
Third Party Beneficiaries.
This Agreement is entered into solely between, and made for the sole benefit of, Holistic WellCare Advisers and Practitioner, 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 Office 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.
Remedies Cumulative.
Unless expressly stated, no remedy afforded to a party under this Agreement shall preclude other remedies available under equity or law.