Provider Terms of Service

Last modified: February 5, 2021

This Dr. B User Agreement (“Agreement”) contains the terms and conditions that apply to the use by you (“User” or “You”), and the Practices and Practice Members (defined below) that you represent, of the Services (as hereinafter defined) offered by Dr. B, Inc. (“Dr. B”), including but not limited to at https://www.hidrb.com/ and all affiliated websites and applications and any Software (as hereinafter defined) owned and operated by Dr. B (collectively, the “Dr. B Site”), as well as on its partners’ websites, digital platforms and applications (“Partner Sites”). As used in this Agreement, “Practice” shall mean the entity on behalf of which User has engaged Dr. B to provide the Services, and shall include the totality of all facilities, doctors, and other healthcare specialists, professionals or providers, and staff members (each a “Practice Member”) located in the same office or affiliate offices; provided, that such affiliates are part of a single affiliated covered entity (as such terms are defined within HIPAA) or an organized health care arrangement or “OHCA” (as such term is defined within HIPAA), for whom an account is created on the Dr. B Site by User or who otherwise use the Services and/or the Dr. B Site for the purpose set forth in this Agreement. In those instances in which the Practice does not have a separate corporate parent entering into this Agreement on the Practice’s behalf as User, references to User herein shall also be construed to mean Practice and references to Practice herein shall be construed to mean User. This Agreement hereby incorporates by reference any User account page accessible by User through the Services (the “User Account Page”) and any addenda entered into by the parties, as if the terms of such addenda, as applicable, were stated herein.BY SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR OTHERWISE AGREEING TO THESE TERMS, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO AND BIND USER AND PRACTICE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ACKNOWLEDGE AND AGREE THAT ALL SUCH USE BY USER IS SUBJECT TO SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS OR ARE NOT AUTHORIZED TO BIND USER AND PRACTICE, THEN DO NOT SIGN THE ORDER FORM AND USER AND PRACTICE ARE NOT LICENSED OR PERMITTED TO USE THE SERVICES AND/OR THE DR. B SITE. ALL OTHER USES OF THE SERVICES AND/OR THE DR. B SITE ARE STRICTLY PROHIBITED.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT IN SECTION 14(f), BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU, PRACTICE AND DR. B WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

1. Dr. B Services.

(a) Services. Subject to the terms and conditions of this Agreement, Dr. B will provide a variety of services via the Dr. B Site and Partner Sites (“Services”).


(b) User Access. During the Term, and subject to the terms and conditions of this Agreement, Dr. B grants User the right to access and use the Services and/or the Dr. B Site and to permit its Practice Members, agents and subcontractors the right to access and use the Services and/or the Dr. B Site solely on User’s behalf; provided, that User shall be responsible for any use of the Services and/or the Dr. B Site by such Practice Members, agents and subcontractors. During the Term and subject to the terms and conditions of this Agreement, User grants Dr. B the right to access and use User’s practice management system, calendar system and patient database (“User’s Systems”), and to copy, extract and use all data necessary to provide the Services. User acknowledges and agrees that Dr. B 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 Dr. B may be required to accept in connection with its use thereof. User will furnish to Dr. B such cooperation, technical assistance, resources, and support as reasonably necessary or appropriate for Dr. B to implement and perform the Services.


(c) User Information. User acknowledges and agrees that, in order to provide certain of the Services, Dr. B shall, and shall authorize its partners to, make certain Practice information available to Dr. B’s end users who have consented to Dr. B’s terms of use (by clicking through the terms of use or using the Dr. B Site or end-user-facing aspects of the Services) (“Customers”), including, without limitation: (i) the address, phone number and email of the Practice and Practice Members; (ii) information regarding Practice Member vaccine dose availability; and (iii) trademarks, logos and such other domains, images and materials that User provides to Dr. B (“User Logos”) (collectively, “User Information”). Dr. B and its partners may use, modify, display, and reproduce User Information in connection with providing and marketing the Services and the Dr. B Site. User may request that Dr. B modify User Information with additional information, links or services. Dr. B may incorporate such modifications and additional information into User’s profile posted on the Dr. B Site in Dr. B’s sole discretion.


(d) Accounts. Each Practice Member shall create and maintain throughout the Term accounts and passwords (“Accounts”) to use the Services and/or the Dr. B Site, including uploading, reviewing, and updating User Information via the Dr. B 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 Dr. B at legalhelp@hidrb.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. Dr. B reserves the right to disable any Account upon its reasonable belief that the security with respect to that Account has been or likely will be compromised.


(e) Reviews. Dr. B may solicit feedback from Customers who use the Dr. B Site regarding the Practice and/or Practice Members (“Reviews”), and Dr. B may, in its sole discretion, make these Reviews available through posting on the Dr. B Site and/or Partner Sites in accordance with the terms of use governing such websites. While Dr. B may from time to time and in its sole discretion remove Reviews (for example, for violation of Dr. B’s policies), Dr. B shall have no obligation to (i) review Reviews for veracity, accuracy or content, or (ii) remove any Reviews. Dr. B shall have no liability to User with respect to, and User hereby releases Dr. B from, all claims related to, arising from or in connection with Reviews, including without limitation claims that a Review is defamatory, libelous, false, misleading, unfair, deceptive, and/or disparaging. The foregoing release is made by 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 or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” 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. Information provided by or about Customers or associated with Customers that is contained in or part of Reviews is Customer Personal Information (as hereinafter defined) but is not PHI (as hereinafter defined) and is collected solely at the discretion of Dr. B and not on behalf of User. User agrees that it will not attempt to unduly influence or fraudulently create Reviews of its Practice Members or other providers on the Dr. B Site.


(f) Customer Personal Information. Dr. B 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 Dr. B so that Dr. B can provide services to Customers, and does not include information obtained from or on behalf of User, the Practice or any Practice Member. Customer Personal Information includes, without limitation, information that Customers provide directly to Dr. B (i) creating an account, (ii) searching for healthcare providers, (iii) completing medical history forms, (iv) leaving reviews of Practice Members, or (v) utilizing Embedded Modules (defined below). User acknowledges and agrees that Customer Personal Information is not “personal health information” (as such term is defined within HIPAA).


(g) Content. Dr. B shall develop, compile, modify or otherwise maintain all content on the Dr. B 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 Dr. B may make content from the Dr. B Site, including User Information, available on Partner Sites and through marketing initiatives. User shall obtain any necessary permission or consent from each Practice and Practice Member as may be required to share the User Information with Dr. B and for Dr. B to further use and disclose such information as described herein.

2. Software.

(a) Acceptance. You may choose to review, download or otherwise utilize certain software applications or other code and functionality from the Dr. B Site or otherwise provided by Dr. B (“Software”). As a condition to using the Software, you must review and agree to the terms of this Section 2 and certain other terms and conditions that may apply (collectively, the “Software Terms”). You are not required to agree to the Software Terms. However, if you reject the Software Terms, you do not have any right to use the Software. If you use the Software, you will be deemed to have accepted the Software Terms. The term “Software” includes Embedded Modules, as defined below.


(b) Definitions.
(i) “Dr. B Content” means all data, information and content provided or otherwise made available by or on behalf of Dr. B through or in connection with the Services and the Dr. B Site. Dr. B Content includes the Dr. B Marks, links and search functionality leading to the Dr. B Site, and advertising for Dr. B or for third party products. In addition, Dr. B Content includes any and all data and html and other code that accompanies the Embedded Module, and any upgrades, enhancements or modifications to such code.
(ii) “Dr. B Marks” means the Dr. B name and any trade name, trademark, service mark, or logo of Dr. B.
(iii) “Embedded Module” means html and other code and functionality provided by Dr. B that is displayed on a User Website (defined below) and that allows End Users to access and view Dr. B Content on the User Website. Embedded Modules include, without limitation, the “Book Online Button,” “white labels,” and other widgets and functionality that Dr. B may provide for use on a User Website from time to time.
(iv) “End User” means a visitor to the User Website.
(v) “User Website” means the User URL(s), domain(s) or other web properties accessing or hosting an Embedded Module.


(c) Licenses.
(i) Software. Subject to the terms and conditions of this Agreement and during the Term hereof, Dr. B hereby grants User a limited, non-exclusive, non-sublicensable, non-transferable and revocable right and license to use the Software for its internal business purposes and solely in connection with the relevant Services. Dr. B reserves all rights to the Software not expressly granted hereunder.
(ii) Embedded Modules. Subject to the terms and conditions of this Agreement and during the Term hereof, Dr. B hereby grants to User a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to
(i) embed the html and other code provided by Dr. B hereunder on the User Website in order to display the Embedded Modules on the User Website; and (ii) use the Embedded Modules on the User Website solely for the intended purposes to access and display certain Dr. B Content made available by Dr. B via the Embedded Modules to End Users. Upon Dr. B’s request, User agrees to immediately remove any Embedded Modules from the User Website. Except as expressly described herein, User is not licensed to use the Embedded Modules for any other purpose and nothing in this Agreement shall be deemed to grant User any other right, title or interest in the Embedded Modules.
(iii) Dr. B Marks. Subject to the terms and conditions of this Agreement, User may display Dr. B Marks on the User Website in connection with the presentation of the Embedded Module and Dr. B Content; provided, that all goodwill related to such name and logo and all uses thereof and any accrued goodwill shall inure solely to the benefit of Dr. B. If Dr. B determines in its sole discretion that any use of Dr. B Marks may be detrimental to Dr. B or its business or otherwise objectionable (in Dr. B’s sole discretion), then User will promptly cease such use or modify its use to be consistent with Dr. B’s reasonable requests. Upon any termination of this Agreement, User will immediately cease all use of Dr. B Marks, and any other similar mark, name or logo.


(d) User Website Terms. User hereby agrees that User will provide the Embedded Modules and Dr. B Content to End Users subject to the same terms and conditions that End Users are subject to with respect to User’s own products or services on the User Website (“End User Terms”). User acknowledges and agrees that (i) each End User affirmatively accepts the End User Terms in connection with such End User’s use of the User Website; and (ii) such End User Terms include at least the following: (x) all legally required, and otherwise appropriate disclaimers related to the Embedded Modules and Dr. B Content and its use, and (y) provisions regarding User’s collection and processing of End Users’ personal information in compliance with all applicable laws and regulations and consistent with this Agreement. Further, End Users shall be required to accept Dr. B’s Terms of Use and Privacy Policy if such End Users elect to use Dr. B’s services or access the Dr. B Site.


(e) Proprietary Rights and Restrictions.
(i) Feedback. User may choose to provide Dr. B with comments concerning the Services or the Dr. B Site and User’s use thereof, which may include bug reports, evaluations, proposed product integrations (and associated metrics and learnings) (collectively, “Feedback”). User hereby assigns to Dr. B all rights, title, and interest to the Feedback, for any and all commercial and non-commercial purposes, with no obligation of any kind to User.
(ii) Restrictions. Except as expressly authorized under this Agreement, User may not (a) copy, rent, lease, sell, lease, license, transfer, assign, sublicense, redistribute, disassemble, aggregate, index, reverse engineer or decompile, derive source code or algorithms from, modify or alter, interfere with, defeat, avoid, disrupt, bypass, remove, disrupt or disable any part of the Dr. B Site; (B) circumvent or attempt to circumvent any restrictions on, access to, or use of the Dr. B Site, or any of their constituent components; (C) introduce any virus, worm, trap door, back door, timer, time bomb, authorization codes, or other device that would access, modify, interfere or disrupt the use of the Dr. B Site; (D) use the Dr. B Site for any unlawful purpose, including to phish, spam, or distribute malware; (E) otherwise use the Dr. B Site on behalf of any third party or on any websites other than the User Website, or to create or maintain a separate online vaccine dose availability platform, or other similar product or service; (F) resell, disclose, publish or distribute the Dr. B Site, including any information created, received, processed or provided through the Services or the Dr. B Site; (G) use the Dr. B Site in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of publicity; (H) cache or store any content obtained via use of the Dr. B Site; or (I) remove or alter any branding, identifying, or notices included with the Software (including, but not limited to, “DR. B”, “MAKE THE MOST OF EVERY DOSE” or other Dr. B Marks).


(f) Placement. Dr. B prohibits the placement of the Software or Dr. B Content on User Websites that include content that is offensive, abusive, harassing, threatening, discriminatory, vulgar, pornographic, or otherwise inappropriate, as determined by Dr. B in its sole discretion. User may not display the Embedded Modules or Dr. B Content in a manner that does not permit successful linking or redirection to the Dr. B Site or delivery of the applicable Services to the End User. Partner may not insert any intermediate page, splash page or other content between the Embedded Modules and the Dr. B Site.

3. User Responsibilities.

(a) User Information. User will cooperate with Dr. B or its agents to verify the information specified in Section 6(b), User Information, and any other information that Dr. B in its sole discretion deems necessary to confirm Practice Members’ professional qualifications. User will promptly update and notify Dr. B, in accordance with Section 6(b), of any change in User Information, including Practice Member licensure status and any applicable disciplinary action involving the Practice Member. User is solely responsible for any liability or expense resulting from outdated or inaccurate User Information. User agrees that Dr. B may, in its sole discretion, modify the processes and criteria it uses to evaluate Practice Members’ qualifications, including with respect to any specialty listing, and may reject a Practice Member from being included in the Services for failure to meet Dr. B’s eligibility standards, in Dr. B’s sole discretion.


(b) Acceptance of Customers. User’s acceptance of a Customer introduced through the Dr. B Site constitutes, for the purposes of this Agreement, User’s acceptance of such Customer as a patient. User is fully and solely responsible for all care rendered to Customer, and for collecting payment from Customer for all services rendered. Dr. B will have no responsibility for collection or any liability whatsoever for fees for services due to User that are unpaid by Customer.


(c) Vaccine Dose Availability. From time to time, User will report to Dr. B the number of vaccine doses available in the next two hours and (ii) the Practice location(s) with such vaccine doses. At all times, User shall ensure that 99.5% of such reported vaccine doses are available for access and administration to Customers. A vaccine dose is not considered available in the event such vaccine dose becomes unusable or upon occurrence of any degradation of such vaccine dose, in whole or in part.


(d) Confirmation of Customer Personal Information. If a Customer submits Customer Personal Information on the Dr. B Site and authorizes User to have access to such information, at such Customer’s vaccination, User will (i) provide such Customer with a copy of such Customer Personal Information, and (ii) give such Customer an opportunity to review and accept or revise such Customer Personal Information. User hereby acknowledges, agrees, releases, and indemnifies Dr. B from all claims and liability arising out of, related to, or in connection with User’s failure to have a Customer accept the Customer Personal Information or arising out of, related to, or in connection with any omissions or errors in any Customer Personal Information provided through the Services. User has no rights in the Customer Personal Information maintained by Dr. B other than as expressly provided hereunder. If Dr. B becomes aware that a User is using any Customer Personal Information obtained through the Services and/or the Dr. B Site in a manner that is inconsistent with the terms of this Agreement, Dr. B’s terms of use or privacy policy, or applicable law, Dr. B may, without limiting any of its other remedies available at law or in equity, request that User immediately cease such inconsistent use and/or immediately terminate such User’s rights with respect to the Services and/or the Dr. B Site. Dr. B may, but has no obligation to, delete any content that Dr. B, in its sole discretion, deems inappropriate for inclusion on the Dr. B Site.


(e) SMS/Text Communications.
(i) Dr. B will primarily communicate with User via SMS on User’s mobile telephone. Message and data rates from User’s mobile telephone service provider may apply and are subject to the terms and conditions imposed by User’s mobile telephone service provider.(ii) User may cancel the SMS service at any time. Just text [“STOP”] to the short code. After User sends the SMS message [“STOP” to Dr. B, Dr. B will send User an SMS message to confirm that User has been unsubscribed. After this, User will no longer receive SMS messages from Dr. B.
(iii) If User experiences issues with the messaging program, User can reply with the keyword [“HELP”] for more assistance, or User can get help directly by sending an email to legalhelp@hidrb.com. Carriers are not liable for delayed or undelivered messages. As always, message and data rates may apply for any messages sent to User from Dr. B and to Dr. B from User. If Dr. B has any questions about User’s text or data plan, it is best to contact User’s wireless provider.
(iv) If User has any questions regarding privacy, User should read Dr. B’s Privacy Policy.

4. Non-Dr. B Patients.


User may elect to use certain Services for patients who are not Customers (“Non-Dr. B Patients”). User shall be responsible for obtaining any required consents, permissions or authorizations from Non-Dr. B Patients for the use and provision of such Services, including disclosure to and use by Dr. B of the healthcare and personal information of any Non-Dr. B Patients consistent with the terms of this Agreement and applicable law. Dr. B may send information, including but not limited to information regarding Dr. B, the Services and/or certain resources, to Non-Dr. B Patients.


5. Limitation of Liability for Use.


(a) Disclaimer. The parties acknowledge and agree that Dr. B is not responsible for: (i) the accuracy, reliability, timeliness, or completeness of User Information, Customer Personal Information, other data provided by Customers, or any other data or information provided or received through the Services and/or the Dr. B Site; (ii) any results that may be obtained from the use of the Services and/or the Dr. B Site; (iii) the provision of User’s services as a result of User’s reliance on any Customer Personal Information or other data provided through the Services and/or the Dr. B Site; (iv) use of the Software after the Term; or (v) losses or injury arising from User’s failure to implement and maintain any Dr. B recommended technical safeguards, or arising from a security incident not caused by Dr. B.
(b) Health Care. User acknowledges and agrees that Dr. B is not a health care provider, licensed or otherwise. Dr. B 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. Dr. B will not be responsible for the assignment of staff to treat Customers, other patients, or any other activity that involves the practice of medicine.

6. Covenants of User.


(a) Confidentiality. User 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 Dr. B Confidential Information, and to prevent such information from improper use and disclosure.
(b) Practice Member Qualifications; Accuracy of Information. User covenants that at all times during the Term:
(i) User will provide Dr. B timely, accurate and up-to-date information regarding each Practice Member’s vaccine dose availability;
(ii) each Practice Member possesses valid, unexpired, unrevoked and unrestricted licenses, authorizations and certifications: (a) for all jurisdictions in which he or she practices (free of any disciplinary actions by state medical boards or other applicable regulatory bodies), and (B) necessary to provide all services or treatment provided by User or a Practice Member to a Customer or Non-Dr. B Patient resulting from User’s or a Practice Member’s use of the Services and/or the Dr. B Site (and User shall confirm the same to Dr. B on at least an annual basis);
(iii) 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);
(iv) 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;
(v) each Practice Member possesses valid and unrestricted state and federal narcotic and controlled substances registrations, as applicable;
(vi) each Practice Member is and remains a participating provider in the Medicare and Medicaid programs (Titles XVIII and XIX of the Social Security Act, respectively) or is qualified to participate therein, but in any event is not excluded therefrom;
(vii) 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;
(viii) 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;
(ix) User will use, and ensure that each Practice Member uses, the Services and the Dr. B 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;
(x) User has the right to enter into and subject the Practice and each Practice Member to the terms and conditions of this Agreement;
(xi) User has obtained from each Practice Member all right, title and interest necessary for Dr. B to provide the Services to User on behalf of such Practice Member; and
(xii) each Practice Member shall comply with the then-current Dr. B Community Standards in effect from time to time (“Community Standards”). User covenants that it will notify Dr. B within five days of any additional information applicable to User’s or a Practice Member’s practice, any changes with respect to any information provided to Dr. B, or if at any point User or a Practice Member is no longer in compliance with any of the covenants in this Section 6(b), except that User will notify Dr. B within a reasonable amount of time, but in no event more than two hours after any changes with respect to the information provided by User pursuant to Section 6(b)(i). User shall be liable for any failure by Practice Members to meet the foregoing requirements of this Section 6(b).
(c) Competition. User acknowledges and agrees that it will not, and will ensure that each Practice Member will not engage or participate in any act or omission involving the use of the Services: (i) to establish, attempt to establish, or enforce, directly or indirectly, any agreement or coordination of (a) the prices charged for any product or service; (B) the kinds, frequencies or amounts of any product or service offered; or (C) the customer or customer categories for any product or service; or otherwise engage or attempt to engage in price fixing, output restriction, or customer or market allocation; or (ii) to engage in any anti-competitive, deceptive or unfair act, omission or practice, or to otherwise violate applicable antitrust, competition or consumer protection laws or regulations.

7. Indemnification.


User will defend, indemnify and hold harmless Dr. B and its affiliates, directors, officers, employees, consultants and agents from any and all claims, actions, proceedings, losses, damages, liabilities and expenses, including reasonable attorneys’ fees and amounts awarded by a court or paid in settlement, arising from or related to: (i) any services or treatment provided by User or a Practice Member to a Customer or other patient resulting from User’s or a Practice Member’s use of the Services and/or the Dr. B Site; (ii) any fees, costs or expenses in connection with any services or treatment provided by User or a Practice Member to a Customer or other patient resulting from User’s or a Practice Member’s use of the Services and/or the Dr. B Site; (iii) use of the Services by, or provision of the Services to, Non-Dr. B Patients; (iv) gross negligence, willful or intentional misconduct, or fraud by a User, Practice, or Practice Member; (v) any breach of Section 2(e), Section 3(d), Section 6 or Section 8; or (vi) User Information.

8. Other Representations and Warranties; Disclaimer of Warranties.


(a) Mutual Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized; (ii) it has the full power to enter into this Agreement and to perform its obligations hereunder; (iii) the execution and delivery of this Agreement will not result in any breach of any terms and conditions of, or constitute a default under, any other agreement to which such party is bound; and (iv) it is not currently the subject of a voluntary or involuntary petition in bankruptcy, does not currently contemplate filing any such voluntary petition, and is not aware of any basis for the filing of an involuntary petition.
(b) Ownership Rights. User further represents and warrants that it has all necessary right, title and interest in and to the content submitted by User to Dr. B in order for Dr. B to perform the Services, including any and all rights and interests in or to User Information and any copyright, trademark, other intellectual property, publicity, and privacy (including necessary consents, authorizations and/or other legal permissions).
(c) No Other Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES, SOFTWARE AND THE DR. B SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DR. B HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, AND ALL WARRANTIES OF THE SERVICES, SOFTWARE OR THE DR. B SITE BEING BUG-FREE, ERROR-FREE OR FREE FROM DEFECTS.

9. Limitation of Liability.


(a) Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL DR. B 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, DR. B SITE, OR PARTNER SITES, (iv) PROVISION OF SERVICES, HEALTH CARE OR OTHERWISE, TO CUSTOMERS OR NON-DR. B PATIENTS, OR (v) USER SOURCED REVIEWS, WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY, EVEN IF DR. B HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Limitation. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF DR. B OR ITS PARTNERS, VENDORS, SUPPLIERS OR LICENSORS FOR ANY LOSS OR DAMAGES (WHETHER BASED IN CONTRACT, TORT OR ANY OTHER FORM OF ACTION) (a) RELATING TO OR ARISING OUT OF THIS AGREEMENT, OR (B) RELATING TO OR ARISING OUT OF ANY OTHER AGREEMENT BETWEEN, ON THE ONE HAND, USER, THE PRACTICE OR A PRACTICE MEMBER, AND, ON THE OTHER HAND, DR. B OR ANY THIRD-PARTY THAT IS A PARTNER, VENDOR, SUPPLIER, LICENSOR OR LICENSEE OF DR. B, EXCEED $100.
10. Marks; Non-Disparagement.
(a) Dr. B Marks. Any use of a Dr. B Mark by User that is not expressly permitted hereunder will, in each case, be subject to the prior written approval of Dr. B. In addition, any such use of a Dr. B Mark will be subject to Dr. B’s then-current trademark usage guidelines. Dr. B reserves the right to terminate User’s right to use any Dr. B Mark immediately upon the issuance of written notice if Dr. B determines User to be in violation of such guidelines in its sole discretion. User acknowledges and agrees that it shall not (i) make any comparative references to Dr. B, its pricing, or the Services or Dr. B Site; or (ii) disparage or otherwise denigrate Dr. B or the Services or Dr. B Site.

10. Marks; Non-Disparagement.


(a) Dr. B Marks. Any use of a Dr. B Mark by User that is not expressly permitted hereunder will, in each case, be subject to the prior written approval of Dr. B. In addition, any such use of a Dr. B Mark will be subject to Dr. B’s then-current trademark usage guidelines. Dr. B reserves the right to terminate User’s right to use any Dr. B Mark immediately upon the issuance of written notice if Dr. B determines User to be in violation of such guidelines in its sole discretion. User acknowledges and agrees that it shall not (i) make any comparative references to Dr. B, its pricing, or the Services or Dr. B Site; or (ii) disparage or otherwise denigrate Dr. B or the Services or Dr. B Site.

(b) User Logos. User hereby grants Dr. B a non-exclusive, royalty-free license to use User Logos in connection with the Services during the Term.

11. Intellectual Property.


All right, title and interest, including without limitation all intellectual property rights, in and to the Services, Software and the Dr. B Site, including all content submitted by Customers or User thereto (other than User Logos), as well as all URLs and domains registered by Dr. B (even if such URLs and domains incorporate User Logos), shall remain the valuable and exclusive property of Dr. B. Dr. B 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 Dr. B Site, and trade secrets in and to any inventions, data, information, know-how, logos, ideas, concepts, technology, software and documentation related to or resulting from the utilization of the Services and/or the Dr. B Site.

12. Confidentiality.


(a) Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”) that: (i) if disclosed orally is designated as confidential at the time of disclosure; (ii) if disclosed in writing is marked as “Confidential” and/or “Proprietary”; or (iii) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, the terms and conditions of this Agreement, the provision of the Services and/or the Dr. B Site, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include 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) Non-Disclosure. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Receiving Party’s obligations under this Agreement; provided, that the Receiving Party certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain such Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own information of a confidential and proprietary nature, but in no event less than a reasonable degree of care.
(c) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s request and cost, if the Disclosing Party wishes to contest the disclosure.
(d) Injunctive Relief. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality obligations hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

13. Term; Termination.


(a) Term. This Agreement will commence as of the date of User’s acceptance of the terms and conditions herein, whether by accessing or otherwise using the Services and/or the Dr. B Site, and shall continue in effect for a period of one year (as applicable, the “Initial Term”). This Agreement will automatically renew for successive periods of the same length as the Initial Term unless either party notifies the other party in writing at least 30 days prior to the end of the Initial Term, or any renewal period, of its election not to renew this Agreement. The Initial Term and all renewal periods are collectively referred to herein as the “Term.”
(b) Termination. User or Dr. B may terminate this Agreement if the other party breaches a material term of this Agreement and fails to cure such breach within 10 days of receiving notice.
(c) Suspension. Dr. B may immediately suspend or terminate this Agreement, with regard to User and/or any Practice Member, in the event that Dr. B believes in its sole good faith determination that a Practice Member has engaged in inappropriate or unprofessional conduct, failed to fulfill the requirements set forth in Section 6(b), or otherwise breached any provision of this Agreement.
(d) Survival. The following shall survive expiration or termination of this Agreement: Section 2(e)(i), Section 2(e)(ii), Section 6(a), Section 7, Section 8, Section 9, Section 10, Section 11, Section 12, Section 13, Section 14, and all other terms which by their nature are reasonably intended to 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 party, except that Dr. B has the unrestricted right to assign this Agreement to an affiliate or in the event of a sale, merger or acquisition of any portion of its business to which this Agreement relates. Any attempted transfer in violation of this Section 14(a) will be void and of no effect. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
(b) No Inducement. Nothing contained in this Agreement is intended or shall be construed: (i) to require, influence, or otherwise induce or solicit a party or any of its affiliates for referrals or arranging for the referrals of persons for items or services, or recommending the ordering of any items or services, of any kind whatsoever, to any of the other parties or their affiliates, or to any other person; (ii) as splitting of any professional fees paid to User; (iii) to interfere with a patient’s right to choose his or her own health care provider, or with a provider’s judgment regarding the ordering of any items or health care services; or (iv) as remuneration in exchange for a disclosure of information from a Customer or otherwise.
(c) Non-Competition. User acknowledges and agrees that the use and disclosure of Dr. B’s Confidential Information would inevitably occur if User utilizes any services by any competitor of Dr. B during the Term. Accordingly, User agrees that during the Term, User shall not, and shall not agree to, purchase, use, or 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 Services being marketed, sold, licensed, distributed, provided or otherwise made available by Dr. B on the Dr. B Site; provided, that the foregoing restrictions shall not limit User’s right to offer or provide a vaccine dose availability notification service directly via the User Website owned and operated by or on behalf of User.
(d) Notices. All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be sufficiently given if sent (i) to Dr. B via email to legalhelp@hidrb.com; or (ii) to User via email to the designated contact on file. User expressly consents to the provision of notices via email. Either party may update its preferred notice address at any time upon notice to the other party. Any such notice or other communication shall be deemed to be given as of the date it is delivered to the recipient or, if delivered on a non-business day, on the next business day.
(e) Governing Law. 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.
(f) Arbitration Agreement. User and Dr. B acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, Dr. B’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of this Agreement, and that upon User’s acceptance of this Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce this Agreement against User as the third-party beneficiary hereof.
(i) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of this Agreement directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(ii) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Dr. B will pay all arbitration fees (not including User’s attorneys’ fees) for claims less than $5,000. Dr. B will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that User’s claim is frivolous.
(iii) Small Claims Court; Infringement. Either User or Dr. B may assert claims, if they qualify, in small claims court in New York, New York or any United States county where User lives or works. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(iv) Waiver of Jury Trial. USER AND DR. B WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. User and Dr. B are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between User and Dr. B over whether to vacate or enforce an arbitration award, USER AND DR. B WAIVE ALL RIGHTS TO A JURY TRIAL and elect instead to have the dispute be resolved by a judge.
(v) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
(vi) Arbitration Severability. If the prohibition against class actions and other claims brought on behalf of third parties, or any other part of this Section 14(f) is found to be unenforceable, then all of the other language in this Agreement and this Section 14(f) will remain enforceable. To the extent that User or Dr. B are permitted to bring a claim relating to this Agreement in state or federal court, then such claim shall only be brought in courts located in New York, New York.
(g) Force Majeure. The performance of either party under this Agreement may be suspended to the extent and for the period of time that such party is prevented or delayed from fulfilling its obligations due to causes beyond its reasonable control (including, without limitation, acts of God, acts of civil or military authority, new legislation or regulatory requirements, strikes or other labor disturbances, fires, floods, epidemics or pandemics, wars or riots). After 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.
(h) Modifications. No modification, amendment or waiver of this Agreement or any of its provisions shall be binding upon Dr. B unless made in writing and agreed to by Dr. B. Dr. B may amend the terms and conditions of this Agreement by reasonably notifying User 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 Dr. B with written notice of such election prior to such modification taking effect. User’s continued use of the Services and/or the Dr. B 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.
(i) 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.
(j) Entire Agreement. This Agreement, any exhibits or addenda hereto, and the policies referred to herein, constitute the entire agreement between the parties and supersede all previous or contemporaneous agreements, promises, representations, whether written or oral, between the parties with respect to the subject matter hereof.
(k) Headings. The headings of the sections of this Agreement are for convenience only, and do not form a part hereof or in any way limit, define, describe, modify, interpret or construe the meaning, scope or intent of this Agreement or any terms or conditions therein.
(l) Independent Contractors. The relationship of the parties shall be that of independent contractors. Any employee, servant, subcontractor or agent of Dr. B who is assigned to provide Services under this Agreement shall remain at all times under the exclusive direction and control of Dr. B 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.
(m) Third Party Beneficiaries. This Agreement is entered into solely between, and made for the sole benefit of, Dr. B and User, and, subject to indemnification obligations and the limitations of liability herein, this Agreement will not be deemed to create any obligations, remedies or liabilities of a party to any third parties (including without limitation any Practice Member) unless explicitly stated herein. Except as otherwise stated in this Agreement, no third party shall have the right to make any claim or assert any right under this Agreement, and no third party shall be deemed a beneficiary of this Agreement.
(n) Remedies Cumulative. Unless expressly stated, no remedy afforded to a party under this Agreement shall preclude other remedies available under equity or law.