Welcome, and thank you for your interest in HealthBanc (“MyHealthBanc”, “we,” or “us”) and our Web site at www.healthbanc.com (our “Site”), as well as all related Web sites, networks, embeddable widgets, downloadable software, mobile applications (including tablet applications and applications “apps”), and other services provided by us and on which a link to these Terms of Service is displayed (collectively, and together with the Site, our “Service”). These Terms of Service are a legally binding contract between you and MyHealthBanc regarding your use of the Service.
These Terms provide that all disputes between you and MyHealthBanc will be resolved by BINDING ARBITRATION. BY ACCEPTING THESE TERMS, YOU AGREE TO GIVE UP YOUR RIGHT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT IN A COURT OF LAW (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 13-20 below for the details regarding your agreement to arbitrate any disputes with MyHealthBanc.
The parties agree as follows:
The parties agree as follows:
1.1“Earning Purchase” means a Patient’s purchase of an Offering from Provider for which the Patient earns Loyalty Points.
1.2“Loyalty Platform” means the proprietary system developed and owned by MyHealthBanc through which Patients can earn, accumulate, and redeem Loyalty Points through Providers.
1.3“Loyalty Points” means points that Patients can earn and accumulate through the purchase of Offerings from Providers and can redeem for Offerings from Providers.
1.4“MHB Hardware” means the hardware provided by MyHealthBanc to Provider in connection with this Agreement, as further described on Exhibit A, including the MHB Terminal if any.
1.5“MHB Technology” means, individually or collectively, the MHB Hardware, Loyalty Platform, Loyalty Points, MHB Web Portal, and Mobile Application.
1.6“MHB Terminal” means the tablet provided by MyHealthBanc for display at Provider’s Office to enable Patients to access the Loyalty Platform if any.
1.7“MHB Web Portal” means the web-based management console accessible by Provider and Patients via the following URL: www.healthbanc.com using a compatible Internet browser and access credentials.
1.8“Mobile Application” means any mobile application for use by Patients to engage in Transactions via the Loyalty Platform.
1.9“Offering” means a healthcare service or other item that is offered for sale by Provider via the Loyalty Platform.
1.10“Office” means the premises at which Provider offers healthcare services or items for sale to Patients, as further described on Exhibit A.
1.11“Patient” means any person visiting the Provider for the contemplated purchase of an Offering from Provider.
1.12“Patient Data” means all data collected by MyHealthBanc in connection with a Patient’s use of the MHB Web Portal or the Mobile Application, including any personal information entered by the Patient or logs of the Patient’s Transaction history.
1.13“Provider Data” means all data collected by MyHealthBanc in connection with Provider’s use of the MHB Web Portal or the Mobile Application, including any personal information about Patients or other individuals.
1.14“Redeeming Purchase” means a Patient’s purchase of an Offering from Provider for which the Patient uses Loyalty Points as consideration. This is represented to the Patient as a “Spend” of points.
1.15“Set-Up Services” means the services described on Exhibit B.
1.16“Services” means, individually or together, the Set-Up Services and Support Services.
1.17“Support Services” means the services described in Section 5
1.18“Transaction” means a Patient’s transaction for a Redeeming Purchase or an Earning Purchase from Provider.
1.19 “Booking Services, System or Platform” mean the ability for patients to request appointment bookings from providers via the Healthbanc patient app.
1.19 Set-Up Services. Subject to the terms and conditions of this Agreement, MyHealthBanc will perform the Set-Up Services. Provider will grant MyHealthBanc access to the Office and cooperate with MyHealthBanc to assist in the installation of the MHB Hardware and training of Provider’s personnel on use of the MHB Hardware if required.
2.1. Subject to the terms and conditions of this Agreement, MyHealthBanc grants to Provider a limited, non-exclusive, non-transferable, non-sublicensable right during the Term to use the MHB Hardware or software to access the Loyalty
2.2 . Subject to the terms and conditions of this Agreement, MyHealthBanc grants to Provider a limited, non-exclusive, non-transferable, non-sublicensable right during the Term to use the trademarks, logos, and name of MyHealthBanc (“MyHealthBanc Marks”) in connection with Provider’s marketing or advertising of the MHB Technology at the Office; provided that each any use of the MyHealthBanc Marks by Provider is approved by MyHealthBanc in writing in advance of each such use. Provider will only use the MyHealthBanc Marks in accordance with this Agreement. Provider acknowledges that it has no right or interest in the MyHealthBanc Marks other than the license rights granted under this Agreement and that MyHealthBanc will remain the sole and exclusive owner of all right, title and interest in and to the MyHealthBanc Marks. Any use by Provider of the MyHealthBanc Marks, and all goodwill associated therewith, will inure solely to the benefit of MyHealthBanc.
2.3 Provider Account.
(a) Provider must create an account (“Provider Account”) for the Loyalty Platform via the MHB Web Portal. For each Earning Purchase (Patient “Check In”), the Provider Account will be debited the number of Loyalty Points corresponding to that Earning Purchase in cash or via the provider credit card or approved credit facility. Upon each Redeeming Purchase (Patient “Spend”), the Provider Account will be credited the number of Loyalty Points corresponding to that Redeeming Purchase. The provider must process (accept or decline) a patient request for points debit or credit within 24 hours of a request. Any disputes between providers and patients about points credits or debits are the responsibility of the provider to fix or make good not Healthbanc.
(b) Provider may review the status of its Provider Account via the MHB Web Portal, which will include statements detailing all Transactions for the applicable statement period and setting forth the then-current balance of Loyalty Points in the Provider Account. The statements or points totals on the website or application may not be equal to the net amount to be credited or debited in cash due to the absence of fees and charges yet to be levied by Healthbanc.
2.4 . Except as otherwise explicitly provided in this Agreement, Provider will not, and will not permit or authorize third parties to (a) modify, reproduce, translate, enhance, disassemble, decompile, reverse engineer, or create derivative works of any portion of the MHB Technology; (b) rent, lease, or otherwise permit third parties to use any portion of the MHB Technology; (c) use any portion of the MHB Technology to provide services to third parties; or (d) circumvent or disable any security or other technological features or measures of any portion of the MHB Technology.
2.5 e. Provider will use its best efforts to prevent any unauthorized use of the MHB Technology and immediately notify MyHealthBanc in writing of any unauthorized use that comes to Provider’s attention. If there is unauthorized use by anyone who obtained access to the MHB Technology directly or indirectly through Provider, Provider will take all steps reasonably necessary to terminate the unauthorized use. Provider will cooperate and assist with any actions taken by MyHealthBanc to prevent or terminate unauthorized use of any MHB Technology.
2.6 Provider’s use of the MHB Technology must be in compliance with all applicable laws and regulations, and Provider will refrain from any unethical conduct or any other conduct that my tend to damage the reputation of MyHealthBanc.
2.7 Provider will not make or publish any representations, warranties, guarantees, or commitments on behalf of MyHealthBanc or otherwise attribute any of the foregoing to Provider concerning any matter whatsoever.
3.1 (a) Access to the appointment booking system. Subject to the terms and conditions of this Agreement, MyHealthBanc grants to Provider a limited, non-exclusive, non-transferable, non-sublicensable right during the Term to use the MHB Hardware or software access the appointment booking system.
(b) The provider will respond to any booking requests within nil to 20mins during normal business hours.
(c) The provider shall use the “do not accept any future bookings button” if they cannot accept any more bookings, if for example the provider is on holidays for a specified date.
(d) Healthbanc does not take any responsibility for any damages due to a lack or failing of communication between the provider and patient. This includes any problems with connectivity between the patient and HCP including any issues or problems that could be caused by Healthbanc. PLEASE BE PROMPT AND COMPLETE IN YOUR COMMUNCIATION WITH PATIENTS THIS IS YOUR RESPONSIBILITY.
(e) You acknowledge will not communicate with the patient, relay or message or otherwise any medical or health information via the booking system. The system is for bookings only.
4.1 Provider will be responsible for the maintenance of the MHB Hardware, including the following:
(a)any necessary repairs or replacement of the MHB Hardware, including all associated taxes and shipping costs; and
(b)any authorized or unauthorized use of the MHB Hardware while installed at the Office, whether by Patients or employees of Provider or any other third party.
4.2 During the Term, Provider will ensure, and will cause its employees and other representatives to ensure, that, at all times during normal business hours at the Office:
(a) the MHB Marketing Materials is (i) displayed in the Office reception area, on a service counter, or in a comparable space offered to Patients.
(b) all membership or promotional cards and other marketing materials provided by MyHealthBanc for display at the Office (the “Marketing Materials”) are on display in proximity to the MHB Terminal, in each of the foregoing cases, as may be reasonably directed by MyHealthBanc from time to time.
(c) all provider staff as requested by Healthbanc undergo training on the Healthbanc system and participate in any activity as specified by HealthBanc relating to the HealthBanc system
5.1 During the Term, Provider’s “Authorized Administrators” identified on the www.healthbanc.com website upon registration will be entitled to receive MyHealthBanc’s standard e-maiL support at SUPPORT@myhealthbanc.com. MyHealthBanc will use commercially reasonable efforts to have support personnel available during regular business hours to offer, as reasonably necessary and upon Provider’s reasonable request, the support services described in this Section 5 (“Support Services”).
5.2 Provider will document and promptly report all detected errors in the MHB Technology to MyHealthBanc with enough detail to permit MyHealthBanc to reproduce the error. Provider will assist MyHealthBanc with recreating and diagnosing each error.
5.3 MyHealthBanc will use commercially reasonable efforts to correct performance errors affecting Provider’s use of the MHB Technology with a level of effort commensurate with the severity of the error.
5.4 Unless otherwise expressly agreed to by MyHealthBanc in a separate written agreement, the Support Services do not include:
(a)(a) visits to Provider’s site, or (b)(b) any work with or relating to any third-party equipment or software.
6.1 All payment processing for Transactions will be administered through a third-party payment processor designated by Provider and approved in advance by MyHealthBanc. The Provider hereby agrees to accept from Patients Loyalty Points on behalf of patients in lieu of cash payments for transactions between the Provider and Patient. If the Patient selects an amount to "Spend" with the provider the provider will discount this amount from the amount payable by the patient at the point of service/goods purchase, or on the patients next billing cycle as agred by the Patient. The loyalty points will transfer from the patients points account to the providers account ready for payment or "cash out" by a provider (see 6.4 Loyalty Balances) , in accordance with this Agreement
6.2 . MyHealthBanc will encrypt all Provider Data and store the Provider Data on a platform with reasonable security measures, whether owned or controlled by MyHealthBanc or administered by a third-party service.
6.3 Other than U.S. federal and state net income taxes imposed on MyHealthBanc, Provider will bear all taxes, duties, and other governmental charges resulting from sale of any Offerings.
6.4 Each MONTH or other time interval as stated by Healthbanc, (a) if the balance of Loyalty Points in the Provider Account is positive, Provider may elect to (i) have the entirety of or a portion of the balance of Loyalty Points converted to cash currency, payable to Provider, or (ii) maintain the Loyalty Points for use within the Loyalty Platform; and (b) if the balance of Loyalty Points in the Provider Account is negative, the Provider will pay MyHealthBanc immediately, the corresponding amount in cash currency, payable in U.S. Dollars or currency requested by Healthbanc. Healthbanc may direct debit the amount owing to it via the providers credit card (see 6.6).
6.5 The Provider hereby agrees to accept from MyHealthBanc cash payments in exchange for Loyalty Points redeemed by Patients in accordance with this Agreement.
6.6 The provider must register with and allow debits or credits to a valid credit card acceptable to Healthbanc . Upon registration of a credit card the provider grants permission for Healthbanc to make the appropriate debits or credits without further notice or approvals.
6.7 Guarantees or warranties
Myhealthbanc guarantees that after 3 months of memerbship and before 4 months of membership if the provider is not satified then the proivider can request a refund of fees. This request will be granted if the provider has either has used myhealthbanc as its only appointment booking platform or allwoed myhealthbanc to integrate with the providers current/old appointment booking system.
6.8 Provider Payments.
(a)Provider will pay or deliver MyHealthBanc any and all agreed-upon fees and other consideration for Provider’s use of the MHB Technology, including a reasonable transaction fee per payment transaction and fees based on the accumulation and redemption of Loyalty Points, in each case as determined by MyHealthBanc in its sole discretion, and as more fully set forth on the website , as may be modified from time to time by MyHealthBanc (the “Participation Fees”). The current participation fees as in Exhibit A below are current only at the time of sign up for more current fees see the Healthbanc website.
(b) Any portion of the Participation Fees due and not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid.
(c) If Provider fails to timely pay any fees due under this Agreement, MyHealthBanc may, without limitation to any of its other rights or remedies, suspend Provider’s access to the MHB Technology and the performance of any Services until it receives all amounts due.
6.9 MyHealthBanc uses the services of a thrid party for financial transactions namely Stripe payments the link for their service agreement is:
7.1 . Unless this Agreement is terminated earlier in accordance with the terms hereof, this Agreement will commence upon the Effective Date and continue for one year (“Initial Term”) and will automatically renew one year at a time unless the provider notifies Myhealthbanc in writing of its intent to not renew this Agreement with at least 30 days notice (each, a “Renewal Term” and, together with the Initial Term, the “Term”).
7.2 MyHealthBanc may terminate this Agreement for any reason or no reason IMMMEDIATELY by giving Provider written notice of its decision to terminate the Agreement and of the proposed date of termination
7.3 If either party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other party may give the defaulting party written notice of the material breach or default (including a statement of the facts relating to the material breach or default, the provisions of this Agreement that are in material breach or default, and the action required to cure the material breach or default) and of the non-defaulting party’s intention to terminate the Agreement pursuant to Section 7.4 if the material breach or default is not cured within 30 days after the defaulting party’s receipt of that notice (or a later date as may be specified in that notice). Without limiting the preceding sentence, any failure by Provider to timely pay to MyHealthBanc any amounts owing under this Agreement will constitute a material breach of this Agreement.
7.4 If the defaulting party fails to cure a material breach or default specified in any notice under Section 7.2 within 30 days after receipt of notice (or a later date as may be specified in that notice), then the non-defaulting party may terminate this Agreement by giving the defaulting party written notice of termination.
7.5 If this Agreement is terminated for any reason in accordance with its terms: (a) within 48 hours following the time of termination, Provider must return to MyHealthBanc all MHB Hardware (if any), the Marketing Materials, and all Confidential Information of MyHealthBanc then in Provider’s possession or control; (b) Provider will pay MyHealthBanc for any damage to the MHB Hardware beyond normal wear and tear; (c) MyHealthBanc will promptly return all Provider Materials to Provider then in MyHealthBanc’s possession or control; (d) on the day of termination, the parties will together reconcile and settle the Provider Account (in accordance with Section 6) and all other payments due to either party under this Agreement; (d) all liabilities accrued prior to the effective date of the termination will survive; and (e) any provision that, by its nature or express terms should survive, will survive such termination or expiration of this Agreement, including, but not limited to Sections 1, 3.4, 3.5, 4.1, 6, 7.5, 8, 9.3, 10, 11, 12, 13, and 14.
8.1 Ownership of IP, Confidential Information, Data, and Feedback.
(a) As between the parties, Provider owns all rights, title, and interest in, to, and under Provider’s Confidential Information (as defined below), the Provider Data, and all suggestions, enhancement requests, recommendations, or other feedback provided by or on behalf of Provider to MyHealthBanc (“Feedback”),.
(b)MyHealthBanc is and will remain the sole and exclusive owner of, and retains all rights, title, and interest in, to, and under the MHB Technology, MyHealthBanc’s Confidential Information (as defined below), and the Patient Data.
(a)Provider grants to MyHealthBanc:
(i)a limited, non-transferable, non-sublicensable, nonexclusive right to access and use Provider’s Confidential Information (as defined below), solely to the extent necessary to perform its obligations or exercise its rights under this Agreement;
(ii)a fully paid-up, perpetual, non-exclusive, worldwide license to use the Provider Data (A) as necessary to perform its obligations or exercise its rights under this Agreement, (B) to improve MyHealthBanc’s products and services, and (C) otherwise in connection with MyHealthBanc’s internal business purposes; and
(iii)a fully paid-up, perpetual, irrevocable, transferrable, sublicensable, non-exclusive, worldwide license under the Feedback to use, copy, modify, distribute, or otherwise exploit the Feedback for any purpose, including the making, distribution, sale, offer for sale, or importation of products or services based on, derived from, or incorporating the Feedback.
(b)MyHealthBanc grants to Provider a limited, non-transferable, nonsublicensable, nonexclusive right to access and use the MHB Technology, MyHealthBanc’s Confidential Information (as defined below), and the Patient Data, solely to the extent necessary to perform its obligations or exercise its rights under this Agreement. Provider will not have any rights or interest in or to the MHB Technology, MyHealthBanc’s Confidential Information, or the Patient Data, except as expressly granted in this Agreement. MyHealthBanc reserves to itself all rights not expressly granted to Provider under this Agreement.
9.1 Each party represents and warrants to the other that:
(a)(a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b)(b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; (c)(c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound; and (d)(d) it will comply with all applicable laws in connection with this Agreement.
9.2. MyHealthBanc takes reasonable measures to protect the confidentiality of the information it receives from Provider in compliance with applicable federal and state laws, rules, and regulations and as required by this Agreement. Provider agrees not to provide to MyHealthBanc “protected health information,” as that term is defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
9.3 EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 9, MYHEALTHBANC MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. MYHEALTHBANC EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. MYHEALTHBANC DOES NOT WARRANT THAT THE MHB TECHNOLOGY IS OR WILL BE ERROR-FREE OR THAT OPERATION OF ANY MHB TECHNOLOGY WILL BE SECURE OR UNINTERRUPTED. MYHEALTHBANC EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON PROVIDER’S USE OF THE MHB TECHNOLOGY.
10.1 MyHealthBanc will defend Provider and its employees, directors, agents, and representatives (“Provider Indemnified Parties”) from any actual or threatened third-party claim that the MHB Technology infringes or misappropriates any U.S. patent issued as of the Effective Date or any copyright or trade secret of any third party during the Term if: (a) the applicable Provider Indemnified Party gives MyHealthBanc prompt written notice of the claim; (b) MyHealthBanc has full and complete control over the defense and settlement of the claim; (c) the applicable Provider Indemnified Party provides assistance in connection with the defense and settlement of the claim as MyHealthBanc may reasonably request; and (d) the applicable Provider Indemnified Party complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
10.2 MyHealthBanc will indemnify each of the Provider Indemnified Parties against:
(a)(a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 10.1; (b)(b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without MyHealthBanc’s consent after MyHealthBanc has accepted defense of such claim); and (c)(c) if any proceeding arising under Section 10.1 is settled, all amounts to owed to any third party, as agreed to by MyHealthBanc in settlement of any such claims.
10.3 If Provider’s use of the MHB Technology is, or in MyHealthBanc’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 10.1, then MyHealthBanc will either:
(a)(a) procure the continuing right of Provider to use the MHB Technology; (b)(b) replace or modify the MHB Technology in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, MyHealthBanc is unable to do either (a) or (b), MyHealthBanc will (c)(c) terminate this Agreement.
10.4 MyHealthBanc will have no obligation under this Section 10 for any infringement to the extent that it arises out of or is based upon: (a) the combination, operation, or use of the MHB Technology if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications required by or provided by Provider, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the MHB Technology outside of the scope of the rights granted to Provider; (d) Provider’s failure to use the latest release of any MHB Technology or to comply with instructions provided by MyHealthBanc, if the alleged infringement would not have occurred but for such failure; or
(e)(e) any modification of any portion of the MHB Technology not made by MyHealthBanc where such infringement would not have occurred absent such modification. Provider will reimburse MyHealthBanc for any costs or damages that result from these actions.
10.5 This Section 10 states MyHealthBanc’s sole and exclusive liability, and Provider’s sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by any portion of the MHB Technology.
11.1Defense by Provider. Provider will defend MyHealthBanc and its affiliates, employees, directors, agents, and representatives (“MHB Indemnified Parties”) from any actual or threatened third-party claim arising out of or based upon Provider’s use of the MHB Technology, Provider’s provision of healthcare services, or Provider's breach of any of the provisions of this Agreement, excluding any claims for which MyHealthBanc is responsible under Section 10. MyHealthBanc will:
(a)(a) give Provider prompt written notice of the claim; (b)(b) grant Provider full and complete control over the defense and settlement of the claim; (c)(c) assist Provider with the defense and settlement of the claim as Provider may reasonably request, at Provider’s expense; and (d)(d) comply with any settlement or court order made in connection with the claim.
11.2Indemnification by Provider. Provider will indemnify the MHB Indemnified Parties against:
(a)(a) all damages, costs, and attorneys’ fees finally awarded against the applicable MHB Indemnified Party(ies) in any proceeding under Section 11.1; (b)(b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by the applicable MHB Indemnified Party(ies) in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Provider’s consent after Provider has accepted defense of such claim); and (c)(c) if any proceeding arising under Section 11.1 is settled, Provider will pay any amounts owed to any third party as agreed to by Provider in settlement of any such claims. This Section 11.2 will apply regardless of any insurance coverage held by the applicable MHB Indemnified Party(ies).
12.1Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE ACTIVITIES CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
12.2Cap on Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, AND EXCEPT FOR LIABILITY ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL THE PARTIES’ TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER THE ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED (A) IN THE CASE OF MYHEALTHBANC, THE TOTAL AMOUNT OF THE PARTICIPATION FEES ACTUALLY RECEIVED FROM PROVIDER, AND (B) IN THE CASE OF PROVIDER, THE TOTAL AMOUNT OF NET REVENUES RECEIVED FROM TRANSACTIONS PLACED, IN EACH CASE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
12.3Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY MYHEALTHBANC TO PROVIDER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
13.Generally. In the interest of resolving disputes between you and MyHealthBanc in the most expedient and cost-effective manner, you and MyHealthBanc agree that any and all disputes arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to, all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MYHEALTHBANC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
14.Exceptions. Notwithstanding subsection 13, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief or other provisional relief in aid of arbitration from a court of law, or (iv) file suit in a court of law to address intellectual property infringement claims.
15.Arbitrator. Any arbitration between you and MyHealthBanc will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting MyHealthBanc.
16.Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”), to the following address, as applicable:
myhealthbanc.com INC t/a MyHealthBanc.com
c/o Wilson Sonsini Goodrich & Rosati PC
139 Townsend Street, Suite 140
San Francisco, CA 94107
17.The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good-faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or MyHealthBanc may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or MyHealthBanc will not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, MyHealthBanc will pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by MyHealthBanc in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greatest.
18.Fees. In the event that you commence arbitration in accordance with these Terms, MyHealthBanc will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco County, California, provided that, if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse MyHealthBanc for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days following the arbitrators’ ruling on the merits.
19.No Class Actions. YOU AND MYHEALTHBANC AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and MyHealthBanc agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
20.Modifications. In the event that MyHealthBanc makes any future change to this arbitration provision (other than a change to MyHealthBanc’s address for Notice), you may reject any such change by sending us written notice within 30 days following the change to MyHealthBanc’s address for Notice, in which case your account with MyHealthBanc will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
21.1Definition. “Confidential Information” means the terms of this Agreement and any trade secrets or other confidential information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans and materials, including the Provider Materials and the Marketing Materials, Patients, prospects, or other affairs), that is disclosed to a party during the Term and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. Confidential Information does not include (a) the Provider Data or (b) any information that: (i) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (ii) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (iii) is acquired by the receiving party from another source without restriction as to use or disclosure; or (iv) is or becomes part of the public domain through no action or inaction of the receiving party.
21.2Restricted Use and Nondisclosure. During and after the Term, each party will:
(a)(a) use the other party’s Confidential Information solely for the purpose for which it is provided; (b)(b) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to and at least as restrictive as the terms contained in this Section 21.1; and (c)(c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
21.3Required Disclosure. If either party is required by law to disclose the Confidential Information, including the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure to the greatest extent possible.
21.4Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that it may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement or applicable law.
22.1Relationship. MyHealthBanc is an independent contractor (and not an agent or representative of Provider) in the performance of this Agreement. This Agreement will not be interpreted or construed as:
(a)(a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b)(b) imposing any partnership or franchise obligation or liability on either party; or (c)(c) prohibiting or restricting MyHealthBanc’s performance of any services for any third party or the provision of products to any third party.
22.2Subcontractors. MyHealthBanc may utilize one or more subcontractors or other third parties to perform its duties under this Agreement as long as MyHealthBanc remains responsible for all of its obligations under this Agreement.
22.3Reference. Subject to Section 21 regarding confidentiality, Provider will:
(a)(a) make one or more representatives reasonably available for reference inquiries from potential MyHealthBanc customers, partners, and investors; (b)(b) permit MyHealthBanc to create and publish a case study describing in general terms the nature of Provider’s use of the Loyalty Platform; and (c)(c) permit MyHealthBanc to issue and publish a press release containing a quotation from a representative of Provider announcing that Provider has subscribed to use the Loyalty Platform and the general context of the intended use. In addition, Provider hereby consents to MyHealthBanc’s publication of Provider’s logo in connection with any publication of MyHealthBanc’s customer names and logos on its Web site.
22.4Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
22.5Force Majeure. MyHealthBanc will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond MyHealthBanc’s reasonable control, so long as MyHealthBanc uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
22.6Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A, without regard to the conflict of laws principles thereof. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts in San Francisco County, California, in connection with any action arising out of or in connection with this Agreement.
22.7Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
22.8Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the MHB Technology under this Agreement is found to be illegal, unenforceable, or invalid, Provider’s right to use the MHB Technology will immediately terminate.
22.9Interpretation. The parties have had an equal opportunity to participate in the drafting of this Agreement and the attached exhibits. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Any reference to any agreement, document or instrument will mean such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof. Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in this Agreement, they will be deemed references to this Agreement as a whole and not to any particular Article, Section, or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
22.10Counterparts. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in two or more counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered will be an original, but all of which together will constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a fax machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each party forever waives any such defense, except to the extent that such defense relates to lack of authenticity.
22.11Entire Agreement. This Agreement, including all schedules and exhibits to this Agreement, is the final and complete expression of the agreement between these parties regarding the MHB Technology. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of MyHealthBanc has any authority to bind MyHealthBanc with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Provider may not assign or transfer this Agreement or any rights or obligations under this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of MyHealthBanc. Any assignment in violation of this Agreement is null and void. We may assign this Agreement or any rights or obligations under this Agreement, in whole or in part, at any time without notice to Provider. This Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. MyHealthBanc will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Provider in any receipt, acceptance, confirmation, correspondence, or otherwise, unless MyHealthBanc specifically agrees to such provision in writing and signed by an authorized agent of MyHealthBanc.
Contract Period 1 Year renewing
$100 set up fee and Membership fees as per website www.healthbanc.com/provider