User Agreement

doctorsNYNJ User Agreement

This doctorsNYNJ User Agreement (“Agreement”) contains the terms and conditions that apply to the use by the Practice that you (“User” or “You”) represent of the Services (as defined in Section 1.a) offered by doctorsNYNJ, Inc. (“doctorsNYNJ”) (at the URL: https://www.doctorsnynj.com and all affiliated websites and applications owned and operated by doctorsNYNJ, including any Software (as defined in Section 1.j), (collectively, the “doctorsNYNJ Site”) and on its partners’ websites, digital platforms and applications (“Partner Sites”)). As used in this Agreement, “Practice” shall mean the entity on behalf of which the User has engaged doctorsNYNJ to provide the Services, and shall include the totality of all of doctors, dentists, and other healthcare specialist, professional or provider, and staff members (each a “Practice Member”) located in the same office or affiliate offices, provided such affiliates are part of a single affiliated covered entity (as such terms are defined within HIPAA) or an organized health care arrangement or “OCHA” (as such term is defined within HIPAA), for whom an account is created on the doctorsNYNJ Site by User or who otherwise use the Services, Software and/or the doctorsNYNJ Site for the purpose set forth in this Agreement. In those instances in which the Practice does not have a separate corporate parent entering into this Agreement on the Practice’s behalf as the User, references to User herein shall also be construed to mean Practice and references to Practice herein shall be construed to mean User. This Agreement hereby incorporates by reference any User order form or User Account Page (collectively, “Order Form”) and any addenda entered into by the parties, as if the terms of such Order Form or addenda, as applicable, were stated herein. BY CLICKING ON THE “ACCEPT” BUTTON OR DOWNLOADING, ACCESSING OR OTHERWISE USING THE SERVICES, SOFTWARE AND/OR THE doctorsNYNJ SITE, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO AND BIND USER AND PRACTICE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ACKNOWLEDGE AND AGREE THAT ALL SUCH USE BY USER IS SUBJECT TO SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS OR ARE NOT AUTHORIZED TO BIND USER, THEN DO NOT CLICK THE “ACCEPT” BUTTON AND USER IS NOT LICENSED OR PERMITTED TO USE THE SERVICES, SOFTWARE AND/OR THE doctorsNYNJ SITE. ALL OTHER USES OF THE SERVICES, SOFTWARE AND/OR THE doctorsNYNJ SITE ARE STRICTLY PROHIBITED. 1. doctorsNYNJ Services. a. Subject to the terms and conditions of this Agreement and payment of the fees set forth in Section 4 and any addendum to this Agreement (if applicable), doctorsNYNJ will provide a variety of services via the doctorsNYNJ Site and Partner Sites (“Services”), which may include, but are not limited to, (i) hosting Practice and Practice Member profile web pages, marketing Practice Members and their services on the doctorsNYNJ Site, health care appointment scheduling services, training, integration to User’s practice management system, and appointment reminders (collectively, the “Marketing and Scheduling Services”); and (ii) billing, collection and payment services (collectively, the “Payment Services”). b. During the Term, and subject to the terms and conditions of this Agreement, doctorsNYNJ grants User the right to access and use the Services, Software and/or the doctorsNYNJ Site and to permit its Practice Members, agents and subcontractors the right to access and use the Services, Software and/or the doctorsNYNJ Site solely on User’s behalf; provided, however, that User shall be responsible for any use of the Services, Software and/or the doctorsNYNJ Site by such Practice Members, agents and subcontractors. During the Term and subject to the terms and conditions of this Agreement, User grants doctorsNYNJ the right to access and interact with User’s practice management system, calendar system and patient database (“User’s Systems”), and to copy, extract and use all data necessary to provide the Services. User acknowledges and agrees that doctorsNYNJ shall not be subject to any terms not set forth herein with respect to User’s Systems, including, but not limited to, any click-through agreements doctorsNYNJ may be required to accept in connection with its use thereof. User will furnish to doctorsNYNJ such cooperation, technical assistance, resources and support, as reasonably necessary or appropriate for doctorsNYNJ to implement and perform the Services. c. User acknowledges and agrees that, in order to provide certain of the Services, doctorsNYNJ shall, and shall authorize its partners to, make certain Practice information available to doctorsNYNJ’s end users who have consented to doctorsNYNJ’s terms of use (by clicking through the terms of use or using the doctorsNYNJ Site or end-user-facing aspects of the Services) (“Customers”), including, without limitation, (i) the address, phone number, fax and email of the Practice and Practice Members, (ii) information regarding Practice Member appointment availability and National Provider Identifier (“NPI”), (iii) insurance in which each Practice Member participates (i.e., with which each is “in-network”), (iv) general Practice information, and (v) trademarks, logos and such other images and materials that User provides to doctorsNYNJ (“User Logos”) (collectively, “User Information”). doctorsNYNJ and its partners may use, modify, display, and reproduce User Information in connection with providing and marketing the Services. User may request that doctorsNYNJ modify the User Information with additional information, links or services. doctorsNYNJ may incorporate such modifications and additional information into User’s profile posted on the doctorsNYNJ Site in doctorsNYNJ’s sole discretion. d. Each Practice Member shall create and maintain throughout the Term accounts and passwords (“Accounts”) to use the Services, Software and/or the doctorsNYNJ Site, including uploading, reviewing, and updating User Information via the doctorsNYNJ Site. Account information shall be held in strict confidence by User and Practice Members and User will be solely responsible for any disclosures of its Account information or use thereof by any unauthorized party. User shall immediately notify doctorsNYNJ at service@doctorsnynj.com: (i) following any unauthorized use, access or other compromise of an Account (including any password), and (ii) when a Practice Member leaves, is no longer employed or otherwise ceases to be part of any Practice. e. doctorsNYNJ reserves the right to disable any Account upon its reasonable belief that the security with respect to that Account has likely been or will be compromised. f. doctorsNYNJ solicits feedback from Customers who use the doctorsNYNJ Site, and doctorsNYNJ may, in its sole discretion, make this feedback available through posting on the doctorsNYNJ Site and/or Partner Sites in accordance with the terms of use governing such websites. doctorsNYNJ shall have no liability to User with respect to, and User hereby releases doctorsNYNJ from all claims related to, arising from or in connection with Customer feedback. The foregoing release is made by User 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 favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” User 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 jurisdiction. doctorsNYNJ may, but has no obligation to, remove any Customer feedback in doctorsNYNJ’s sole discretion. Information provided by or about Customers or associated with Customers that is contained in or part of Customer feedback is Customer Personal Information (as defined in Section 1.g) but is not PHI (as the term is defined in Section 12.e) and is collected solely at the discretion of doctorsNYNJ and not on behalf of User. g. doctorsNYNJ may send information, including, but not limited to, information regarding doctorsNYNJ, the Services and/or certain resources, to NondoctorsNYNJ Patients (as defined in Section 3.a). h. doctorsNYNJ will maintain Customer consent for the use and disclosure of a Customer’s health care or medical history, and other personal information (collectively, “Customer Personal Information”) in connection with the Services, whether in paper or electronic form. For the avoidance of doubt, Customer Personal Information is information that Customers provide directly to doctorsNYNJ so that doctorsNYNJ can provide services to the Customers, and does not include information obtained from or on behalf of the User, the Practice or any Practice Member. User acknowledges and agrees that Customer Personal Information is not PHI. i. doctorsNYNJ shall develop, compile, modify or otherwise maintain all content on the doctorsNYNJ Site or as part of the Services, including, without limitation, any Practice Member or Practice photographs, and any content provided by User or any Customers. User acknowledges and agrees that doctorsNYNJ may: (i) make content from the doctorsNYNJ Site, including User Information, available on Partner Sites and through marketing initiatives; and (ii) use Practice Member’s NPI to obtain certain insurance information including, without limitation, coverage and benefit information. Practice shall obtain any necessary permission or consent from each Practice Member to share the Practice information with doctorsNYNJ and for doctorsNYNJ to further use and disclose such information as described herein. j. Where applicable, doctorsNYNJ will validate Customer phone numbers, serve as a communication vehicle between Customer and User, gather Customer Personal Information and assist in appointment scheduling. k. Software. i. If User elects to download any software application from the doctorsNYNJ Site (“Software”), subject to the terms and conditions of this Agreement and during the Term hereof, doctorsNYNJ hereby grants User a limited, non-exclusive, non-transferable and non-sublicensable right and license to use the Software for its internal business purposes and solely in connection with the relevant Services. doctorsNYNJ reserves all rights to the Software not expressly granted hereunder. ii. User shall not and shall not allow any third party to (A) decompile, disassemble, reverse engineer or otherwise attempt to discover the source code of any portion of the Software; (B) circumvent or attempt to circumvent any access controls to functions, features or components of the Software; (C) prepare derivative works of the Software; or (D) remove or alter any branding, identifying, or notices included with such Software, including, e.g., the “Powered by doctorsNYNJ” Mark (as defined in Section 10). Violation by User of any restriction in the preceding sentence shall be deemed a material breach of this Agreement. Notwithstanding anything in this Agreement, doctorsNYNJ shall have the right to remotely disable Software at its sole discretion. 2. User Responsibilities. a. User will cooperate with doctorsNYNJ or its agents to verify the information specified in Section 6.b, User Information, and any other information that doctorsNYNJ in its sole discretion deems necessary to confirm Practice Members’ professional qualifications. User will promptly update and notify doctorsNYNJ, in accordance with Section 6.b, of any change in User Information, including Practice Member licensure status and any other information required to be provided under Section 6.b. User is solely responsible for any liability or expense resulting from outdated or inaccurate User Information. User agrees that doctorsNYNJ may, in its sole discretion, modify the processes and criteria it uses to evaluate Practice Members’ qualifications, including with respect to any specialty listing. b. User’s acceptance of an appointment scheduling request from doctorsNYNJ for a Customer constitutes, for the purposes of this Agreement, User’s acceptance of the Customer as a patient. User is fully and solely responsible for all care rendered to Customer, and for collecting payment from Customer for all services rendered. doctorsNYNJ will have no responsibility for collection (subject to doctorsNYNJ’s obligations for Payment Services) or any liability whatsoever for fees for services due to User that are unpaid by Customer. c. User agrees that any Customer who makes an appointment with the User based on out-of-date or incorrect User Information shall not be charged for any fees disputed or not otherwise covered by the Customer’s insurance provider as a result of User’s failure to provide accurate User Information. d. User will respond to doctorsNYNJ scheduling requests on behalf of Customers within a reasonable amount of time, but in no event more than one (1) hour after receipt of doctorsNYNJ’s request for an appointment on behalf of a Customer. User acknowledges and agrees that rescheduling or cancelling of Customer appointments may result in User or the relevant Practice Member(s) being removed from, or otherwise affected in the order of display of, appointment listings available to Customers. e. If a Customer submits Customer Personal Information on the doctorsNYNJ Site and authorizes User to have access to such information in advance of an appointment, at the Customer’s appointment User will (i) provide Customer with a copy of such Customer Personal Information, and (ii) give Customer an opportunity to review and accept or revise such Customer Personal Information. User hereby acknowledges, agrees, releases, and indemnifies doctorsNYNJ from all claims and liability arising out of, related to or in connection with User’s failure to have Customer accept the Customer Personal Information or arising out, related to or in connection with of any omissions or errors in any Customer Personal Information provided through the Services. User has no rights in the Customer Personal Information maintained by doctorsNYNJ other than as is expressly provided hereunder. If doctorsNYNJ becomes aware that a User is using any Customer Personal Information obtained through the Services, Software and/or the doctorsNYNJ Site in a manner that is inconsistent with the terms of this Agreement, doctorsNYNJ’s terms of use or privacy policy, or applicable law, doctorsNYNJ may, without limiting any of its other remedies available at law or in equity, request that User immediately cease such inconsistent use and/or immediately terminate such User’s rights with respect to the Services, Software and/or the doctorsNYNJ Site. doctorsNYNJ may, but has no obligation to, delete any content that doctorsNYNJ, in its sole discretion, deems inappropriate for inclusion on the doctorsNYNJ Site. f. User agrees that doctorsNYNJ may contact any Practice Member regarding the Services, the Software and/or doctorsNYNJ Site. If User has opted out of receiving any email or facsimile communications from doctorsNYNJ, User hereby expressly opts in to receive such email and facsimile communications and hereby withdraws its opt out. 3. Elected Services. a. Generally; Services for Non-doctorsNYNJ Patients. Certain of the Services may be provided by doctorsNYNJ on an elective basis. For example, User may elect to use certain Services for patients who are not Customers (“Non-doctorsNYNJ Patients”), including without limitation, booking appointments for, or having appointment reminders sent to, Non-doctorsNYNJ Patients. User shall be responsible for obtaining any required consents, permissions or authorizations from Non-doctorsNYNJ Patients for the use and provision of Services, including disclosure to and use by doctorsNYNJ of the healthcare and personal information of any Non-doctorsNYNJ Patients consistent with the terms of this Agreement and applicable law. doctorsNYNJ may send information, including, but not limited to, information regarding doctorsNYNJ, the Services and/or certain resources, to Non-doctorsNYNJ Patients. b. Elected Services Addendum. Other elective Services, including without limitation certain Payment Services, may be set forth in an addendum entered into by the parties. 4. Fees and Payments. a. Marketing and Scheduling Services Fees. In consideration of the Marketing and Scheduling Services provided herein, User shall pay doctorsNYNJ any initial set up or recurring fees specified on User’s account page on the doctorsNYNJ Site (“User Account Page”) or elsewhere in the applicable Order Form. doctorsNYNJ will invoice User for the first payment in advance, at the time of sign up, and in advance for each subsequent license period. Invoices are due immediately and doctorsNYNJ will charge User’s credit card, bank account, or other form of payment, on a recurring basis, in advance of the period of service. User agrees to this recurring charge. Such fees for Marketing and Scheduling Services shall throughout the Term reflect the fair market value for the Marketing and Scheduling Services. b. Other Fees. In addition to those fees set forth in Section 4.a, User shall pay doctorsNYNJ the fees set forth in any addendum entered into by the parties, including the Elected Services Addendum. c. Amounts Past Due and Fee Changes. All amounts due and owing hereunder by User that are not paid by the due date shall bear interest at the rate of the lesser of one and one half percent (1.5%) per month or the maximum amount permissible by law. Except as otherwise may be agreed in an applicable Order Form, doctorsNYNJ reserves the right to change from time to time the amount of the fees for any of the Services (including any part of the Marketing and Scheduling Services or the Payment Services). User will be notified of any such fee changes on the User Account Page at least thirty (30) days prior to becoming effective. If User does not wish to pay such revised fees, then User’s sole option is to terminate this Agreement by notifying doctorsNYNJ in writing prior to the revised fees becoming effective. If User does not notify doctorsNYNJ in writing prior to the revised fees becoming effective, then User will be deemed to have accepted such fee changes and such revised fee amounts will be automatically incorporated into this Agreement by this reference. d. Upon termination of this Agreement for any reason, User shall pay to doctorsNYNJ all fees due under this Agreement and any addendum entered into by the parties. Notwithstanding anything to the contrary in this Agreement or in any addendum, doctorsNYNJ shall not refund to User any fees paid prior to expiration or termination of this Agreement nor refund to User any fees due and payable for Services rendered prior to expiration or termination of this Agreement. e. doctorsNYNJ will not exclude as a participant in the Services any individual or entity who meets the qualifications for participation as set forth herein. Any User payments are only based on the cost of operating the Services, and not on the volume or value of any referrals to, or business otherwise generated by, either doctorsNYNJ or User for any service for which payment may be made in whole or in part under Medicare, Medicaid or any other federal or state health care program. The Services impose no requirements on the manner in which User provides services to a Customer, except that doctorsNYNJ requires that User not charge different rates based upon whether a Customer uses the Services. User shall not charge Customer a fee for using the Services. 5. Limitation of Liability for Use. a. The parties acknowledge and agree that doctorsNYNJ is not responsible for: (i) the accuracy, reliability, timeliness, or completeness of the User Information, PHI, Benefit Information, Customer Personal Information, other data provided by Customers, or any other data or information provided or received through the Services, Software and/or the doctorsNYNJ Site; (ii) the results that may be obtained from the use of the Services, Software and/or the doctorsNYNJ Site; (iii) the provision of User’s services as a result of User’s reliance on any Customer Personal Information or other data provided through the Services, Software and/or the doctorsNYNJ Site; (iv) the cancelling or rescheduling of any appointment booked through the Services, Software and/or the doctorsNYNJ Site; (v) use of the Software after the Term; or (vi) losses or injury arising from User’s failure to implement and maintain the safeguards set forth in Section 6.a.ii, or arising from a security incident not caused by doctorsNYNJ. b. User acknowledges and agrees that doctorsNYNJ is not a health care provider, licensed or otherwise. doctorsNYNJ cannot and will not assume responsibility for the direct care of any patient, which shall at all times remain the responsibility of User, Practice(s) and Practice Members. doctorsNYNJ will not be responsible for the assignment of staff to treat Customers, other patients or any other activity that involves the practice of medicine. c. User may receive certain insurancerelated information (including without limitation coverage and benefit information) of Customers (“Benefit Information”) through the Services. User’s receipt of Benefit Information is subject to the terms and conditions in this Section 5.c. User agrees and acknowledges that: (i) User is aware that the Benefit Information is obtained via a clearing house and/or from the applicable insurance provider; (ii) doctorsNYNJ cannot confirm the accuracy of the data it receives from such clearing house and/or insurance provider; (iii) doctorsNYNJ MAKES NO GUARANTEES AND DISCLAIMS ALL WARRANTIES THAT SUCH BENEFIT INFORMATION IS ACCURATE, TIMELY, COMPLETE OR ERRORFREE; and (v) User is ultimately responsible for verifying all Benefit Information with the applicable insurance carrier and Customer. 6. Representations, Warranties and Covenants of User. a. User represents, warrants and covenants that (i) it will maintain the confidentiality of Customer Personal Information and shall only use Customer Personal Information or the healthcare and personal information of other patients as permitted in this Agreement and consistent with state and federal laws, including applicable privacy and data security laws; and (ii) it will implement and maintain reasonable and appropriate administrative, organizational, physical, and technical safeguards to protect the confidentiality, integrity and availability of Customer Personal Information, Account information, and doctorsNYNJ Confidential Information, and to prevent such information from improper use and disclosure. b. User represents, warrants and covenants that at all times during the Term: (i) User will provide doctorsNYNJ with complete and accurate information about Practice Members’ specialties (in accordance with and subject to doctorsNYNJ’s then current guidelines on specialty listings), practice or hospital affiliations, association memberships, board certifications, insurance participation, and contact information (including Practice Members’ professional address, phone and fax number); (ii) User will provide doctorsNYNJ accurate and up-todate information regarding each Practice Member’s appointment availability; (iii) each Practice Member possesses valid, unexpired, unrevoked and unrestricted licenses, authorizations and certifications: (A) for all jurisdictions in which he or she practices medicine (free of any disciplinary actions by state medical boards), (B) necessary to provide all services or treatment provided by User or a Practice Member to a Customer or other patient resulting from User’s or a Practice Member’s use of the Services, Software and/or the doctorsNYNJ Site (and User shall confirm the same to doctorsNYNJ on at least an annual basis), and (C) necessary for doctorsNYNJ to display User’s and Practice Member’s specialties; (iv) each Practice Member has entered into a valid and unexpired collaborative practice or other agreements to the extent required for such Practice Member to practice at the applicable Practices (including such agreements to the extent the same is a condition of such Practice Member’s license); (v) each Practice Member is a member in good standing on the medical staff of any hospitals in which he or she practices with appropriate clinical privileges (if applicable), and is employed by or affiliated with User; (vi) each Practice Member possesses valid and unrestricted state and federal narcotic and controlled substances registrations as applicable; (vii) each Practice Member is and remains a participating provider in the Medicare and Medicaid programs (Titles XVIII and XIX of the Social Security Act, respectively) or is qualified to participate therein, but in any event shall not be excluded therefrom; (viii) User will obtain and maintain, and ensure that each Practice Member obtains and maintains, professional liability insurance coverage and other insurance of the types and in the amounts that are at a minimum consistent with industry standards and applicable law, with respect to each Practice Member’s practice; (ix) each Practice Member treats all patients presenting themselves for treatment without regard to such patients’ race, religion, gender, sexual orientation, disability, payer source or other unlawful considerations; (x) the healthcare provider primarily providing services for an appointment shall be the Practice Member with whom such appointment is booked; (xi) User will use, and ensure that each Practice Member uses, the Services, Software and the doctorsNYNJ Site in compliance with all applicable laws and regulations, including, without limitation, the hospital conditions of participation, the patient freedom of choice laws and principles, and antitrust, competition, advertising, marketing and consumer protection laws and regulations; and (xii) User has the right to enter into and subject the Practice and each Practice Member to the terms and conditions of this Agreement. User represents, warrants and covenants that it will notify doctorsNYNJ within five (5) days of any additional information applicable to User’s or a Practice Member’s practice, any changes with respect to any information provided to doctorsNYNJ, or if at any point User or a Practice Member is no longer in compliance with any of the foregoing warranties, representations, or covenants except that (1) User will have fifteen (15) days to notify doctorsNYNJ with respect to any additional information applicable to User’s or a Practice Member’s practice or changes of the information provided by User pursuant to Section 6.b.i, and (2) User will notify doctorsNYNJ within a reasonable amount of time, but in no event more than one (1) hour after any changes with respect to the information provided by User pursuant to Section 6.b.ii. User shall be liable for any failure by Practice Members to meet the foregoing requirements of this Section 6.b. c. User acknowledges, represents, warrants and covenants that it will not, and will ensure that each Practice Member will not, engage or participate in any act or omission involving the use of the Services (i) to establish, attempt to establish, or enforce, directly or indirectly, any agreement or coordination of (A) the prices charged for any product or service; (B) the kinds, frequencies or amounts of any product or service offered; or (C) the customer or customer categories for any product or service; or otherwise engage or attempt to engage in price fixing, output restriction, or customer or market allocation; or (ii) to engage in any anticompetitive, deceptive or unfair act, omission or practices, or otherwise violate applicable antitrust, competition or consumer protection laws or regulations. For the avoidance of doubt, the foregoing shall apply to User, including each Practice Member, notwithstanding that such User or any such Practice Member has not elected to use the Payment Services. 7. Indemnification. User will defend, indemnify and hold harmless doctorsNYNJ and its affiliates, directors, officers, employees, consultants and agents from any and all claims, actions, proceedings, losses, damages, liabilities and expenses, including reasonable attorneys’ fees and amounts awarded by a court or paid in settlement, arising from or related to (i) any services or treatment provided by User or a Practice Member to a Customer or other patient resulting from User’s or a Practice Member’s use of the Services, Software and/or the doctorsNYNJ Site, (ii) any fees, costs or expenses in connection with any services or treatment provided by User or a Practice Member to a Customer or other patient resulting from User’s or a Practice Member’s use of the Services, Software and/or the doctorsNYNJ Site; (iii) use of the Services by, or provision of the Services to, Non-doctorsNYNJ Patients; (iv) gross negligence, willful or intentional misconduct, or fraud; or (v) any breach of Sections 6 or 8.a.ii. 8. Other Representations and Warranties; Disclaimer of Warranties. a. 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, and (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. b. Each party represents and warrants to the other party that 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. c. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE SERVICES, SOFTWARE AND THE doctorsNYNJ SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, doctorsNYNJ HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, 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 doctorsNYNJ SITE BEING BUG FREE, ERROR FREE OR FREE FROM DEFECTS. 9. Limitation of Liability. a. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL doctorsNYNJ OR ITS PARTNERS, SUPPLIERS, VENDORS OR LICENSORS BE LIABLE TO USER, THE PRACTICE OR A PRACTICE MEMBER FOR ANY (i) LOSS OF PROFITS, LOST REVENUE, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF DATA, (iii) LOSS OR INTERRUPTION OF USE OF THE SERVICES, SOFTWARE, doctorsNYNJ SITE, OR PARTNER SITES, OR (iv) PROVISION OF SERVICES, HEALTH CARE OR OTHERWISE, TO CUSTOMERS OR NON-doctorsNYNJ PATIENTS, WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY, EVEN IF doctorsNYNJ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. b. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF doctorsNYNJ OR ITS PARTNERS, VENDORS, SUPPLIERS OR LICENSORS FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER FORM OF ACTION, EXCEED THE GREATER OF: (i) THE AGGREGATE OF THE AMOUNT OF FEES DURING THE PREVIOUS TWELVE (12)-MONTH PERIOD (A) PAID TO doctorsNYNJ PURSUANT TO SECTION 4.a, AND (B) OTHERWISE VALIDLY DUE AND OWING BY USER TO doctorsNYNJ UNDER THIS AGREEMENT; OR (ii) $100. 10. Trademarks; Publicity. a. Any use of the name or any trade name, trademark or service mark of doctorsNYNJ (each a “Mark”) by User will, in each case, be subject to the prior written approval of doctorsNYNJ. In addition, any such use of a Mark will be subject to doctorsNYNJ’s trademark usage guidelines. doctorsNYNJ reserves the right to terminate User’s right to use any Mark, immediately upon the issuance of written notice, if doctorsNYNJ determines User to be in violation of such guidelines. b. User hereby grants doctorsNYNJ a nonexclusive, royalty-free license to use the User Logos in connection with the Services during the Term. 11. Intellectual Property. a. All right, title and interest, including without limitation all intellectual property rights, in and to the Services, Software and the doctorsNYNJ Site, including all content submitted by Customers or User thereto (other than the User Logos), shall remain the valuable and exclusive property of doctorsNYNJ. b. doctorsNYNJ 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 doctorsNYNJ 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, Software and/or the doctorsNYNJ Site. 12. Confidentiality/HIPAA Compliance. a. 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, including, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the provision of the Services, Software and/or the doctorsNYNJ Site, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include PHI (which is governed by Section 12.e) or any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (4) is received from a third party without breach of any obligation owed to the Disclosing Party. b. 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 Receiving Party certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the 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 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. c. 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 Disclosing Party’s request and cost, if the Disclosing Party wishes to contest the disclosure. d. 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. e. In the event that doctorsNYNJ creates, receives, maintains, or transmits Protected Health Information (or “PHI”, as such term is defined by HIPAA) from or on behalf of User or the Practice (as applicable) in order to perform the Services (“Practice PHI”), the parties agree and acknowledge that doctorsNYNJ is serving as a “Business Associate”, as such term is defined in the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recover and Reinvestment Act of 2009 (the “HITECH Act”), and as set forth in their respective implementing regulations (“HIPAA”), of the Practice (and of User if it is a Covered Entity component, or Business Associate, of the Practice). The Practice, doctorsNYNJ, and User (if it is a Covered Entity component, or Business Associate, of the Practice) agree to discharge their respective duties hereunder in accordance with the applicable provisions of HIPAA. Terms used in this Section 12.e but not otherwise defined shall have the meaning ascribed to them by HIPAA. For purposes of this Section 12.e only, when doctorsNYNJ is deemed to be a Business Associate of Practice and/or User, as applicable, doctorsNYNJ shall be referred to as “Business Associate,” and Practice and/or User, as applicable, shall be referred to as “Covered Entity”. In the event that User is a Business Associate of the Practice, references to Business Associate herein shall be to doctorsNYNJ, notwithstanding that doctorsNYNJ would be a Business Associate Subcontractor, as defined in HIPAA, of User. In the event of an inconsistency between this Section 12.e and another term of this Agreement as it relates to PHI, this Section 12.e shall control. i. Use and Disclosure. Business Associate agrees not to use or disclose Practice PHI other than as permitted or required by this Agreement or as Required by Law. Business Associate shall comply with the provisions of this Section 12.e relating to privacy and security of PHI and that are applicable to Business Associates. ii. Appropriate Safeguards. Business Associate agrees to use appropriate safeguards to prevent the use or disclosure of Practice PHI other than as provided for by this Agreement or as Required By Law. Without limiting the generality of the foregoing sentence, Business Associate will: A. Implement administrative, organizational, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic Practice PHI as required by the Security Rule; Business Associate will comply with the applicable requirements, policies, procedures and documentation requirements of the Security Rule. B. Report to Covered Entity any Security Incident involving Electronic Practice PHI or involving systems in which Electronic Practice PHI is stored, maintained, or over which it is transmitted of which Business Associate becomes aware. Any actual, successful Security Incident will be reported to Covered Entity in writing without unreasonable delay. With respect to attempted, unsuccessful Security Incidents, the parties acknowledge and agree that this Section 12.e constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required. “Unsuccessful Security Incidents” means, without limitation, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, use, disclosure, modification or destruction of ePHI or interference with system operations in an information system that contains ePHI. C. Notify Covered Entity following the discovery of a Breach of Unsecured PHI that is Practice PHI in accordance with 45 C.F.R. § 164.140 without unreasonable delay and in no case later than sixty (60) days (or within any shorter deadline imposed by applicable state law) after discovery of the Breach. The notice shall include the following information if known (or can be reasonably obtained) by Business Associate: (I) contact information for the individuals who were or who may have been impacted by the Breach (e.g., first and last name, mailing address, street address, phone number, email address), (II) a brief description of the circumstances of the Breach, including the date of the Breach and date of discovery, (III) a description of the types of Unsecured PHI involved in the Breach (e.g., names, social security numbers, dates of birth, addresses, account numbers of any type, and similar information), and (IV) a brief description of what the Business Associate has done or is doing to investigate the Breach and mitigate harm to the individuals impacted by the Breach. A Breach is considered “discovered” as of the first day on which the Breach is known, or reasonably should have been known, to Business Associate or any employee, officer or agent of Business Associate, other than the individual committing the Breach. D. Reporting. Business Associate agrees to report, without unreasonable delay, to Covered Entity any access, use or disclosure of Practice PHI by Business Associate or a third party to which Business Associate disclosed Practice PHI not permitted by this Agreement of which Business Associate becomes aware. E. To the extent that Business Associate carries out one or more of Covered Entity's obligations under Subpart E of 45 C.F.R. Part 164, Business Associate will comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations. iii. Mitigation. Business Associate agrees to take reasonable steps to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Practice PHI by Business Associate in violation of the requirements of this Section 12.e (including, without limitation, any Security Incident or Breach of Unsecured PHI). Business Associate agrees to reasonably cooperate and coordinate with Covered Entity in the investigation of any violation of the requirements of this Section 12.e and/or any Security Incident or Breach. Business Associate shall also reasonably cooperate and coordinate with Covered Entity in the preparation of any reports or notices to the Individual, a regulatory body or any third party required to be made under HIPAA or any other federal or state laws, rules or regulations, provided that any such reports or notices shall be subject to the prior written approval of Covered Entity. iv. Minimum Necessary. To the extent required by the “minimum necessary” requirements of HIPAA, Business Associate shall only request, use and disclose the minimum amount of Practice PHI necessary to accomplish the purpose of the request, use or disclosure. See corresponding Covered Entity obligation in Section 12.e.xi.B. v. Subcontractors. Business Associate shall enter into a written agreement meeting the requirements of 45 C.F.R. §§ 164.504(e) and 164.314(a)(2) with each Subcontractor (including, without limitation, a Subcontractor that is an agent under applicable law) that creates, receives, maintains or transmits Practice PHI on behalf of Business Associate. Business Associate shall ensure that the written agreement with each Subcontractor obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as the restrictions or conditions that apply to Business Associate through this Section 12.e with respect to such information. vi. Access to Designated Record Sets. The parties do not expect that Business Associate will maintain Designated Record Sets. In the event, however, that Covered Entity requests that Business Associate maintain a Designated Record Set, Business Associate agrees to provide access, within thirty (30) days of a request by Covered Entity, and in the manner designated by the Covered Entity, to Practice PHI in a Designated Record Set created or received by Business Associate solely on behalf of Covered Entity only, to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements under HIPAA Regulations. If an Individual makes a request for access to Practice PHI directly to Business Associate, Business Associate shall notify Covered Entity of the request within three (3) business days of such request. Covered Entity shall have the sole responsibility to make decisions regarding whether to approve a request for access to Practice PHI. vii. Amendments to Designated Record Sets. The parties do not expect that Business Associate will maintain Designated Record Set. In the event however, that Covered Entity requests that Business Associate maintain a Designated Record Set, Business Associate agrees to provide information to Covered Entity for amendment and to incorporate any such amendment(s) to Practice PHI in a Designated Record Set that the Covered Entity directs or agrees to pursuant to HIPAA Regulations within thirty (30) days of a request by Covered Entity, and in the manner designated by the Covered Entity. If an Individual makes a request for an amendment to Practice PHI directly to Business Associate, Business Associate shall notify Covered Entity of the request within three business (3) days of such request. Covered Entity will have the sole responsibility to make decisions regarding whether to approve a request for an amendment to Practice PHI. viii. Access to Books and Records. Business Associate agrees to make its internal practices, books, and records relating to the use and disclosure of Covered Entity’s PHI received from, or created or received by Business Associate on behalf of, Covered Entity available to the Secretary for purposes of the Secretary determining Covered Entity’s and Business Associate’s compliance with the Privacy Rule. ix. Accountings. Business Associate agrees to, within fifteen (15) days of request for an accounting of disclosures of Practice PHI from Covered Entity, make available to Covered Entity such PHI as is in Business Associate’s possession and as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of Practice PHI in accordance with HIPAA. If Business Associate receives a request for an accounting for Practice PHI directly from an Individual, Business Associate shall forward such request to Covered Entity within ten (10) business days; Covered Entity shall have the sole responsibility to provide an accounting of such disclosures. x. Permitted Uses and Disclosures by Business Associate. A. Services Agreement. Except as otherwise limited in this Section 12.e, Business Associate may use or disclose PHI to perform the Services, provided that such use or disclosure would not violate HIPAA if done by Covered Entity. B. Use for Administration of Business Associate. Except as otherwise limited in this Section 12.e, Business Associate may use Covered Entity’s PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate. Covered Entity acknowledges and agrees that proper management and administration of Business Associate includes, without limitation, modifications of, upgrades to, and the development and/or addition of additional features and functionality for, the Software or Services. C. Disclosure for Administration of Business Associate. Except as otherwise limited in this Section 12.e, Business Associate may disclose Practice PHI for the proper management and administration of the Business Associate, provided that (I) disclosures are Required by Law, or (II) Business Associate obtains reasonable written assurances from the third party to whom the information is disclosed that the third party will (1) protect the confidentiality of Practice PHI, (2) use or further disclose the Practice PHI only as Required by Law or for the purpose for which it was disclosed to the third party, and (3) notify the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. D. Data Aggregation. Business Associate may use Practice PHI to provide Data Aggregation services relating to the Health Care Operations of Covered Entity if required or permitted under this Agreement; and E. De-Identified Information. Business Associate may use Practice PHI to create de-identified health information in accordance with the HIPAA de-identification requirements. Business Associate may use or disclose de-identified health information for any purpose permitted by law. F. Authorization. doctorsNYNJ may present Customers with a valid HIPAA Authorization to obtain Customers’ authorizations for doctorsNYNJ to be able to use and disclose Practice PHI for the purposes set forth in the Authorization. If a Customer has signed a valid HIPAA Authorization for Business Associate to retain such individual’s Practice PHI and use and disclose such PHI for the purposes set forth in the Authorization, then, notwithstanding anything in Section 12.e.xiv, the parties agree that doctorsNYNJ will have no obligation to return or destroy such PHI upon the termination of this Agreement. xi. Obligations of Covered Entity. A. Permissible Requests by Covered Entity. Except as set forth in Section 12.e.x of this Agreement, Covered Entity shall not request Business Associate to use or disclose Covered Entity’s PHI in any manner that would not be permissible under the Privacy Rule if done by Covered Entity. B. Minimum Necessary PHI. Consistent with Business Associate’s mutual obligation in Section 12.e.iv, when Covered Entity discloses PHI to Business Associate, Covered Entity shall provide the minimum amount of PHI necessary for the accomplishment of Business Associate’s purpose. C. Permissions; Restrictions. Covered Entity warrants and covenants that it has obtained and will obtain any consents, authorizations and/or other legal permissions required under HIPAA and other applicable law for the disclosure of PHI to Business Associate. Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an Individual to use or disclose his or her Covered Entity’s PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI. Covered Entity shall not agree to any restriction on the use or disclosure of PHI under 45 C.F.R. § 164.522 that restricts Business Associate’s use or disclosure of Covered Entity’s PHI under this Agreement unless Business Associate grants its written consent. D. Notice of Privacy Practices. Except as required by HIPAA or other applicable law, with Business Associate’s consent or as set forth in this Agreement, Covered Entity shall not include any limitation in the Covered Entity’s notice of privacy practices that limits Business Associate’s use or disclosure of Covered Entity’s PHI under this Agreement. xii. Compliance with HIPAA Transaction Standards. When providing Services, Business Associate shall comply with all applicable HIPAA standards and requirements (including, without limitation, those specified in 45 C.F.R. Part 162) with respect to the transmission of health information in electronic form in connection with any transaction for which the Secretary has adopted a standard under HIPAA (“Covered Transactions”). Business Associate will make its services and/or products compliant with HIPAA’s standards and requirements no less than thirty (30) days prior to the applicable compliance dates under HIPAA. Business Associate represents that it is aware of all current HIPAA standards and requirements regarding Covered Transactions, and Business Associate shall comply with any modifications to HIPAA standards and requirements which become effective from time to time. Business Associate shall require all of its agents and subcontractors (if any) who assist Business Associate in providing its services and/or products to comply with the terms of this Section 12.e.xii. xiii. Termination Upon Breach. Any other provision of this Agreement notwithstanding, either party (the “Non-Breaching Party”), upon knowledge of a material breach of Section 12.e or any other provision relating to Practice PHI by the other party (the “Breaching Party”), shall provide an opportunity for the Breaching Party to cure the breach or end the violation. If Breaching Party does not cure the breach or end the violation to the reasonable satisfaction of the Non-Breaching Party within the time specified by the Non-Breaching Party, the Non-Breaching Party may terminate: (A) this Agreement; (B) all of the provisions of this Agreement that involve the use or disclosure of Practice PHI; and (C) such other provisions, if any, of this Agreement as the NonBreaching Party designates in its sole discretion. xiv. Effect of Termination. A. Except as provided in Section 12.e.xiv.B, upon termination of this Agreement, for any reason, Business Associate shall return or destroy without unreasonable delay all Practice PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity. This provision shall apply to Practice PHI that is in the possession of subcontractors or agents of Business Associate. B. In the event that Business Associate reasonably determines that returning or destroying the Practice PHI is infeasible, Business Associate shall extend the protections of this Section 12.e to such PHI and limit further uses and disclosures of Practice PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains Practice PHI. Without limiting the generality of the foregoing, Covered Entity acknowledges and agrees that: (I) it is infeasible for Business Associate to delete Practice PHI from its backup tapes or other backup systems, and (II) temporarily retaining certain Practice PHI as necessary during an ongoing investigation in connection with a Security Incident or Breach of Unsecured PHI will render returning or destroying such Practice PHI infeasible. 13. Term; Termination. a. This Agreement will commence as of the date of User’s acceptance of the terms and conditions herein, whether by clicking on the “Accept” button or downloading, accessing or otherwise using the Services, Software and/or the doctorsNYNJ Site, and shall continue in effect for a period set forth in the Order Form, or, if no period is set forth in the Order Form, for a period of one (1) year (as applicable, the “Initial Term”). This Agreement will automatically renew for successive periods of the same length as the Initial Term unless either party notifies the other 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 the “Term.” b. doctorsNYNJ may terminate this Agreement, with regard to User and/or any Practice Member, immediately in the event that a Practice Member engages in inappropriate or unprofessional conduct, or loses his or her license to practice or otherwise becomes unable to fulfill the requirements set forth in Section 6.b. doctorsNYNJ further reserves the right, at its sole discretion, to terminate this Agreement immediately, with regard to User and/or any Practice Member, for User’s or a Practice Member’s repeated rescheduling or cancelling of appointments. c. Survival. The following shall survive expiration or termination of this Agreement: Sections 1.j.ii, 2.b, 2.c, 2.e, 3.b, 4, 5, 6, 7, 8.c, 9, and 11 to 14, and all other terms which by their nature should survive. 14. Miscellaneous. a. Assignment. Neither party may assign this Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of the other, except that doctorsNYNJ has the unrestricted right to assign this Agreement to an affiliate or in the event of a sale, merger or acquisition of its business. Any attempted transfer in violation hereof 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. b. 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 reimbursable under any federal or state health care program, 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) to interfere with a patient's right to choose his or her own health care provider, or with a provider’s judgment regarding the ordering of any items or health care services; or (iii) as remuneration in exchange for a disclosure of PHI. c. Non-Competition. User acknowledges and agrees that the use and disclosure of doctorsNYNJ’s proprietary and confidential information would inevitably occur if User utilizes any services by any competitor of doctorsNYNJ. Accordingly, User agrees that during the Term, User shall not purchase, use, perform, or agree to perform, any services for any third party that develops, promotes, sells, licenses, distributes, or provides services, or has plans to do any of the foregoing, that would compete directly with the technology or online appointment scheduling services being marketed, sold, licensed, distributed, provided or otherwise made available by doctorsNYNJ on the doctorsNYNJ Site; provided, however, that the foregoing restrictions shall not limit User’s right to offer or provide an appointment scheduling service directly via the practice website owned and operated by or on behalf of User. d. Notices. Any 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 by overnight guaranteed delivery service and addressed to such address or addressee as either party may from time to time designate to the other by written notice. 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. e. Governing Law; Dispute Resolution; No Class Actions. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without reference to the conflict of laws provisions thereof. Any controversy, dispute or claim arising out of or related to this Agreement that cannot be resolved by informal and good-faith negotiations between authorized representatives of the parties shall be settled by final and binding arbitration to be conducted by an arbitration tribunal in the State, City and County of New York, pursuant to the rules of the American Arbitration Association. The arbitration tribunal shall consist of one arbitrator. The decision or award of the arbitrator shall be final, and judgment upon such decision or award may be entered in any competent court or application may be made to any competent court for judicial acceptance of such decision or award and an order of enforcement. The parties agree that the arbitrator shall have the authority to impose equitable and injunctive relief as well as to award monetary relief, as the arbitrator deems appropriate. User further waives the right to bring, and agrees not to participate in, any class action, consolidated, multi-district or collective action, or private attorney general action. f. 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, 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. g. Modifications. No modification, amendment or waiver of this Agreement or any of its provisions shall be binding upon doctorsNYNJ unless made in writing and agreed to by doctorsNYNJ. doctorsNYNJ may amend the terms and conditions of this Agreement by posting a notice on the User Account Page or otherwise reasonably notifying User at least thirty (30) days prior to such change taking effect, provided that if User does not agree to such changes, User may terminate this Agreement without penalty by providing doctorsNYNJ with written notice of such election prior to such modification taking effect. User’s continued use of the Services, Software and/or the doctorsNYNJ Site following such period shall be deemed to be User’s acceptance of such change. A failure or delay of either party to: (i) insist upon the performance of any terms, conditions, rights or privileges of this Agreement; or (ii) exercise any rights or privileges conferred in this Agreement, shall not be construed as waiving any such terms, conditions, rights or privileges and the same shall continue and remain in full force and effect. h. 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. i. Entire Agreement. This Agreement, any addenda hereto, the policies referred to herein, and the Order Form, constitute the entire agreement between the parties and supersedes all previous or contemporaneous agreements, promises, representations, whether written or oral, between the parties with respect to the subject matter hereof. j. Headings. The headings of the sections of this Agreement are for convenience only, do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe the meaning, scope or intent of this Agreement or any terms or conditions therein. k. Independent Contractors. The relationship of the parties shall be that of independent contractors. Any employee, servant, subcontractor or agent of doctorsNYNJ who is assigned to provide services under this Agreement shall remain at all times under the exclusive direction and control of doctorsNYNJ and shall not be deemed to be an employee, servant, subcontractor or agent of User. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party as agent, employee, or in any other capacity, except as specifically provided herein. l. Third Party Beneficiaries. This Agreement is entered into solely between, and made for the sole benefit of, doctorsNYNJ and User, and, subject to indemnification obligations and the limitations of liability herein, this Agreement will not be deemed to create any obligations, remedies or liabilities of a party to any third parties (including without limitation any Practice Member). 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. m. Remedies Cumulative. Unless expressly stated, no remedy afforded to a party under this Agreement shall preclude other remedies available under equity or law. 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