Effective Date: June 14, 2016
BetterPT exists to improve your physical therapy experience, and we hope you’ll make great use of our service. These terms explain your rights and responsibilities when using BetterPT. If you have any questions, feel free to contact us at email@example.com. You can also learn more at BetterPT.com/terms. Thank you so much for choosing BetterPT.
You acknowledge that although some Content (as defined below) may be provided by individuals in the physical therapy profession, the provision of such Content alone does not create a physical therapist professional/patient relationship, and does not constitute an opinion, medical advice, or diagnosis or treatment, but is provided to assist you with locating appropriate care from a physical therapist, specialist, professional or other provider (collectively, “Physical Therapists”). “Content” means content, text, data, graphics, images, photographs, video, audio, information, suggestions, guidance, and other materials provided, made available or otherwise found through the Services and/or Mobile App, including without limitation information provided by Physical Therapists on profiles or in direct response to your questions.
WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK, PRICE OR COST INFORMATION, INSURANCE COVERAGE OR BENEFIT INFORMATION, OR OTHER CONTENT THROUGH THE SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY SUCH CONTENT. FURTHERMORE, WE DO NOT IN ANY WAY ENDORSE OR RECOMMEND ANY INDIVIDUAL LISTED OR ACCESSIBLE THROUGH THE SERVICES.
The Content that you obtain or receive by using the Services is for informational, scheduling and payment purposes only.
All related information, including but not limited to information shared via BetterPT emails and text messages comes from independent Physical Therapists and organizations and is for information purposes only.
THE CONTENT, WHETHER SUCH CONTENT IS PROVIDED BY OR THROUGH THE USE OF THE SERVICES OR THROUGH ANY OTHER COMMUNICATIONS FROM BETTERPT, IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE FROM A QUALIFIED PHYSICAL THERAPIST OR HEALTHCARE PROVIDER BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SITE. DO NOT USE THE SERVICES FOR EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY, IMMEDIATELY CALL A HEALTH CARE PROFESSIONAL AND 911. YOUR USE OF THE CONTENT IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE, DENTISTRY, NURSING, OR OTHER PROFESSIONAL HEALTH CARE ADVICE, OR THE PROVISION OF MEDICAL CARE.
We do not recommend or endorse any specific tests, Physical Therapists, procedures, opinions, or other information that may appear through the Services. If you rely on any Content provided through the Services, you do so solely at your own risk.
WE ONLY ACT AS A TECHNOLOGY PLATFORM TO CONNECT YOU WITH PHYSICAL THERAPISTS WHO MAY BE INTERESTED IN PROVIDING YOU WITH PHYSICAL THERAPY SERVICES. NO LICENSED MEDICAL PROFESSIONAL/PATIENT RELATIONSHIP IS CREATED BY USING THE CONTENT, WHETHER SUCH CONTENT IS PROVIDED BY OR THROUGH THE USE OF THE SERVICES OR THROUGH ANY OTHER COMMUNICATIONS FROM BETTERPT INCLUDING, BUT NOT LIMITED TO, THE “FIND A PHYSICAL THERAPIST” FEATURE, OFFICIAL BETTERPT SOCIAL CHANNELS, BETTERPT EMAILS OR TEXT MESSAGES, LINKS TO OTHER SITES OR ANY ASSISTANCE WE MAY PROVIDE TO HELP YOU FIND AN APPROPRIATE PHYSICAL THERAPIST.
We have no control over, and cannot guarantee the availability of any Physical Therapist at any particular time. We will not be liable for cancelled or otherwise unfulfilled appointments, or any injury resulting therefrom, or for any other injury resulting or arising from or related to the use of the Mobile App or Services whatsoever.
You are strongly advised to perform your own investigation prior to selecting a Physical Therapist by making confirming telephone calls to the appropriate licensing or certification authorities to verify listed credentials and education, and to further verify information about a particular Physical Therapist by confirming with the Physical Therapist’s office, your current healthcare providers and the professional association(s) relevant to the Physical Therapist.
BetterPT uses reasonable efforts to ensure that Physical Therapists only participate in the Services if they hold all active licenses required by law to practice the specialties of the services offered by them, and are not excluded from participation in the Medicare and Medicaid programs. BetterPT may also exclude Physical Therapists who, in BetterPT’s discretion, have engaged in inappropriate or unprofessional conduct. Nonetheless, in connection with using the Mobile App and the Services to locate and schedule appointments with Physical Therapists, you understand that:
YOU ARE ULTIMATELY RESPONSIBLE FOR CHOOSING YOUR OWN PHYSICAL THERAPIST.
Physical Therapists listed through the Services with whom you may book appointments enter into contracts with us, and may pay us a fee in order to be included in the Services. We will provide you with lists and/or profile previews of Physical Therapists who may be suitable to provide the services you seek based on information that you provide to us (such as insurance information, schedule, geographical location, and desired treatment style). In an effort to aid in the discovery of Physical Therapists and enable the maximum choice and diversity of Physical Therapists participating in the Services, these lists and/or profile previews may also be based on other criteria (including, for example, Physical Therapist availability, past selections by and/or ratings of Physical Therapists by you or by other BetterPT users, and past experience of BetterPT users with Physical Therapists); but BetterPT (a) does not recommend or endorse any Physical Therapists, (b) does not make any representations or warranties with respect to these Physical Therapists or the quality of the services they may provide, and (c) does not receive any additional fees from Physical Therapists for featuring them (i.e., higher or better placement on lists) through the Services.
BetterPT does not track or monitor Physical Therapist compliance with direct access rules or other similar applicable requirements (e.g., whether a referral or prescription from your physician is needed for you to see a physical therapist), which may vary from state to state. Please note that your insurance company may limit or decline to reimburse you for otherwise reimbursable physical therapy services received without a prescription or a referral from a physician.
Physical Therapist Content:
Physical Therapist profiles and other practice-related Content are intended for general reference purposes only. Such Content may be provided by the Physical Therapists and/or their office staff, or collected from multiple other data sources that are not confirmed by BetterPT and may not be confirmed by the Physical Therapist. Such Content often changes frequently and may become out of date, incomplete or inaccurate. Neither the Mobile App nor BetterPT provides any advice or qualification certification about any particular Physical Therapist. You are encouraged to independently verify such Content.
The procedures, products, services and devices presented through the Services are not appropriate for all individuals, patients or all clinical situations. Any products, services or devices represented through the Services by Physical Therapists or other participants of the Services are presented for your awareness and do not necessarily imply, and we make no claims as to, safety or appropriateness for any particular individual or prediction of effectiveness, outcome or success.
The insurance and insurance related Content (including, without limitation, insurance coverage and benefit Content) is intended for general reference purposes and for your convenience only (“Insurance Content”). Such Insurance Content is based on Personal Information (as defined below) you provide to us as well as Physical Therapist Content. The Insurance Content is provided either directly by the insurance provider you identify or via a third-party clearinghouse. Insurance Content often changes frequently and may become out of date, incomplete or inaccurate. In order to improve (but not guarantee) the accuracy of the Insurance Content, you acknowledge and agree that you will (a) provide accurate and complete insurance-related Personal Information, and (b) verify and update your insurance-related Personal Information (including, without limitation, verifying such Personal Information obtained by automated means from an insurance card you provide); BetterPT will not be responsible for your failure to comply with subparts (a) or (b) hereof, nor for any inaccurate, incomplete or outdated Insurance Content, regardless of the reason.
As part of the registration process, you will provide an e-mail address and create a password. These are your credentials for accessing the Services that are only available to registered users (“Credentials”). You should keep your Credentials private and not share your Credentials with anyone else. You must immediately notify us if your password has been stolen or compromised by sending an email to support@BetterPT.com.
You are responsible for all payments that you incur through your use of the Services, including BetterPT’s service fee for facilitating a physical therapy session (“BetterPT Service Fee”) and charges for your appointments with Physical Therapists (“Physical Therapy Service Fee,” and together with the BetterPT Service Fee, the “Fees”). You must resolve any dispute, including any Fee dispute, between you or any Physical Therapist arising from an appointment or other transaction made through the Services directly with the Physical Therapist.
You are responsible for all use of the Services and for all use of your Credentials, including use by others to whom you have given your Credentials. You may only use Mobile App the Services for lawful, non-commercial purposes. You may not use the Services in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Services. You may not attempt to gain unauthorized access to any of the Services, user accounts, or computer systems or networks, through hacking, password mining or any other means. You may not accumulate or index, directly or indirectly, any Content or portion of the Mobile App or Services (including, without limitation, Physical Therapist or practice information, appointment availability, price information, and Insurance Content) for any purpose whatsoever.
Regardless of whether you are a user or whether you schedule or intend to schedule appointments through the Services, if you are a Physical Therapist or other person or entity in the healthcare or medical industries, you acknowledge and agree that:
(A) Unless you have registered a Physical Therapist account with us to offer services as a Physical Therapist through the Services, you will not use the Services for any purpose other than your own personal use as a patient or prospective patient.
(B) You will not use the Services to establish, attempt to establish, or enforce, directly or indirectly, any agreement or coordination of the prices charged for any product or service; the kinds, frequencies or amounts of any product or service offered; or 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.
(C) You will not use the Services, directly or indirectly, to engage in any anti-competitive, deceptive or unfair practices, or otherwise violate applicable antitrust, competition or consumer protection laws, or regulations.
You acknowledge and agree that the form and nature of the Services provided by BetterPT provide may change from time to time without prior notice. You agree that BetterPT will not be liable to you or any third party for any suspension or discontinuation of any of the Services or portion thereof.
Certain of the Services may have additional terms (including without limitation policies, guidelines, and rules) that will further govern your use of that particular Service, and supplement this Agreement. If you choose to register for, access or use any such Services, you may be presented with such additional terms. By using those Services, you agree to comply with any such additional terms, which are incorporated by reference into this Agreement.
The Services may include links to other websites, including links provided as automated search results. Some of these websites may contain materials that are objectionable, unlawful, or inaccurate. These links are provided for your convenience only and we do not endorse these sites or the products and services they provide. You acknowledge and agree that we are not responsible or liable for the content or accuracy of these other websites.
You will have the opportunity to submit feedback regarding your experiences with Physical Therapists featured through the Services and to submit inquiries concerning possible needs (collectively “Posted Information”). It is important that you act responsibly when providing Posted Information. All Posted Information must comply with our Acceptable Use Policy, as detailed in the following Section 12 of these Terms.
BetterPT reserves the right to investigate and at our discretion take appropriate legal action against anyone who violates this provision or the Acceptable Use Policy, including without limitation, removing any offending communication from the Services and terminating the membership of such violators or blocking your use of the Services.
By posting Posted Information through the Services, you agree to and hereby do grant, and you represent and warrant that you have the right to grant, to BetterPT and its contractors an irrevocable, perpetual, royalty-free, fully sublicensable, fully paid up, worldwide license to use, copy, publicly perform, digitally perform, publicly display, and distribute such Posted Information and to adapt, edit, translate, prepare derivative works of, or incorporate into other works, such Posted Information. This license is non-exclusive, except you agree that BetterPT shall have the exclusive right to practice this license to the extent of combining your Posted Information with the Posted Information of other BetterPT users for purposes of constructing or populating a searchable database of reviews and information related to the physical therapy industry.
You agree not to use the Services in any unlawful, infringing, tortious or harmful manner; in any way that violates another party’s intellectual property, privacy or other rights; or in any way that otherwise interferes with the operation, use or enjoyment of any service, system or other property.
Without limiting any of the foregoing, you agree that you shall not (and you agree not to allow any third party to):
You may not use contact information provided by our users or Physical Therapists, or harvest such information for the purpose of sending, or to facilitate the sending of, unsolicited bulk communications, such as SPAM. You may not allow others to use your account to violate the terms of this section. We may immediately terminate your registration or access to the Services and take other legal action if you or anyone using your Credentials violates these provisions.
We reserve the right to publish your Posted Information as part of the Services and to also remove your Posted Information for any reason. We are not, however, responsible for any failure or delay in posting or removing Posted Information. Keep in mind that the Posted Information of others is simply opinion and should not be relied on.
Without limiting the generality of the foregoing:
You may not submit Posted Information that:
BetterPT adopts the general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (DMCA) (http://www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of BetterPT’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is provided at the bottom of this section.
BetterPT Policy: Our policy is to (a) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, other users; and (b) remove and discontinue Service to repeat offenders.
Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below (“Proper Bona Fide Infringement Notification”):
Upon Receipt of a Bona Fide Infringement Notification. Once a Proper Bona Fide Infringement Notification is received by the Designated Agent, it is BetterPT’s policy:
Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider or user believes that the material that was removed or to which access was disabled is either not infringing, or the content provider or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider or user must send a counter-notice containing the following information to the Designated Agent listed below:
Removal. If a counter-notice is received by the Designated Agent, BetterPT may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at BetterPT’s discretion.
Address for Designated Agent. Please contact BetterPT’s Designated Agent to Receive Notification of Claimed Infringement at firstname.lastname@example.org.
All of the Content is owned by us or our licensors and is protected by copyright, trademark, patent, and trade secret laws, other proprietary rights, and international treaties. You acknowledge that the Services and any underlying technology or software used in connection with the Services contain BetterPT’s proprietary information. We give you permission to use the aforementioned content for personal, non-commercial purposes only and do not transfer any intellectual property rights to you by virtue of permitting your use of the Services. You may print, download, and store information from the Mobile App for your own convenience, but you may not copy, distribute, republish (except as permitted in this paragraph), sell, or exploit any of the content, or exploit the Mobile App or Services in whole or in part, for any commercial gain or purpose whatsoever. Except as expressly and unambiguously provided herein, neither BetterPT nor the Physical Therapists grant you any express or implied rights, and all rights in the Mobile App and the Services not expressly granted by BetterPT to you are retained by BetterPT.
While BetterPT may provide you with Insurance Content to assist you in processing any insurance claims, the sessions you participate in with Physical Therapists that you connect with through the Services may or may not be covered by your insurance, and it is solely your responsibility to contact your health plan, determine whether coverage applies and submit a claim. You are responsible for the full Fees (and for paying the Fee in advance of your appointment) regardless of whether you later are able to receive reimbursement from your health plan for part or all of the cost.
There is no charge to register with us or download the BetterPT application on your mobile device. You are charged Fees only when you actually use the Services by scheduling a session with a Physical Therapist. Each Physical Therapist sets his or her own Physical Therapy Fees, and upon booking an appointment, BetterPT will apply a BetterPT Service Fee that is retained by BetterPT. Each Physical Therapist also sets his or her own cancellation policy, which will be disclosed to you through the Services before you confirm an appointment. We reserve the right to make modifications to the Fee structure, including by introducing a fee in the future for downloading the BetterPT application, or for registering with us. If we decide to make such modifications, we will inform you of the Fees before you incur any charges.
Prior to scheduling an appointment with a Physical Therapist, please carefully review (a) the Fees, (b) cancellation policy and (c) all of the products and services that are included and excluded in each session. Physical Therapists are required to provide the applicable services at or below the Physical Therapy Fee that is displayed at your time of booking, unless you separately agree otherwise. Services in addition to or different from what is advertised on the Services may be available, offered or rendered by the Physical Therapist. You and your Physical Therapist are responsible for agreeing to any additional or different services, and the fees associated with such modifications. WE ARE NOT RESPONSIBLE FOR YOUR OR ANY PHYSICAL THERAPIST’S AGREEMENT OR FAILURE TO REACH AGREEMENT ON ANY ADDITIONAL OR DIFFERENT SERVICES.
The BetterPT Service Fee reflects the value for the Services provided by BetterPT.
You acknowledge and agree that:
(a) you are responsible for and you will pay the Fees for the sessions booked through BetterPT;
(b) you remain responsible for paying all amounts required by law and/or contract (e.g., health plan agreement), including all cost-sharing obligations (such as, but not limited to, copayments, deductibles and other coinsurance obligations);
(c) BetterPT may process your payment, and may do so in collaboration with our payment processing partner;
(d) BetterPT is not responsible for any Physical Therapy Fees or other charges incurred for any products or services provided by a Physical Therapist;
(e) BetterPT is not responsible for any charges submitted for processing by Physical Therapists;
(f) in the event you dispute any Physical Therapy Fees or other fees chargeable or charged through BetterPT by a Physical Therapist, you will resolve such dispute directly with the applicable Physical Therapist;
(h) you will promptly review all Fees and other charges processed through the Transaction Processing Services, and immediately notify BetterPT to the extent you have any questions, concerns or disputes; in no event may you raise any questions, concerns or disputes after twelve (12) months from the date of the applicable transaction; and
You further acknowledge and agree that: neither BetterPT nor our payment processing partner will be responsible if either we or our payment processing partner are unable to complete a transaction for any reason, including but not limited to:
We may send communications to you on your mobile telephone by SMS or text message. Message and data rates from your mobile telephone service provider may apply and are subject to the terms and conditions imposed by your provider. You may opt-out of receiving future SMS or text messages from us by clicking on the “opt-out” link at the end of any SMS or text message that we send.
We may incorporate third party software as part of certain of the Services, including without limitation open source third party software. Your use of such third party software is subject to any and all applicable additional terms and conditions governing such use provided by the third party software provider. Where applicable, additional notices relating to the third party software may be provided by us, which for example may contain attribution and disclaimer notices applicable to the third party software.
In the event you are accessing the Services via an application (“Application”) on a device provided by Apple, Inc. (“Apple”) or an Application obtained through the Apple App Store, the following shall apply:
(b) the Application is licensed to you pursuant to the terms and conditions set forth in the Agreement solely to be used in connection with the Services for your private, personal, non-commercial use;
(c) you will only use the Application in connection with an Apple device that you own or control;
(d) you acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
(e) in the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
(f) you acknowledge and agree that BetterPT, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
(g) you acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) you represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties; and
(i) both you and BetterPT acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use.
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no control over, and no duty to take any action regarding: which users gain access to the Mobile App and/or the Services; what content you access via the Mobile App and/or the Services; what effects the content on the Mobile App and/or the Services may have on you; how you may interpret or use the content on the Mobile App and/or the Services; or what actions you may take as a result of having been exposed to the content on the Mobile App and/or the Services. You release us from all liability for you having acquired or not acquired content through the Mobile App and/or the Services. The Mobile App and/or the Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. We make no representations concerning any content contained in or accessed through the Mobile App and/or the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Mobile App and/or the Services. We make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Mobile App and/or the Services. WE PROVIDE THE SITE AND THE SERVICES “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE.” WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE SERVICES AND THE SITE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF INFORMATION PROVIDED BY USERS OF THE SERVICES OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, BETTERPT MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. BETTERPT DOES NOT WARRANT THAT THE SITE OR THE SERVICES WILL OPERATE ERROR-FREE, BUG-FREE OR FREE FROM DEFECTS, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE SERVICES, SOFTWARE OR SITE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS.
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR REGISTRATION. IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICES OR THE SITE, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (a) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO REGISTER FOR THE SITE OR THE SERVICES, OR (b) $100; EXCEPT THAT, FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE TRANSACTION PROCESSING SERVICES (AS DEFINED IN SECTION 14), IN NO EVENT SHALL OUR CUMULATIVE LIABILITY THEREOF REGARDLESS OF THE FORM OF ACTION EXCEED THE TOTAL AMOUNT OF TRANSACTION PROCESSING FEES (AS DESCRIBED IN SECTION 14), IF ANY, REMITTED TO AND RETAINED BY BETTERPT FOR PROVIDING TRANSACTION PROCESSING SERVICES FOR APPOINTMENTS MADE BY YOU IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.
IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SITE AND/OR THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR MEDICAL MALPRACTICE OR NEGLIGENCE OF HEALTHCARE PROVIDERS UTILIZED THROUGH USE OF THE SERVICE, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED IN ACCORDANCE HEREIN TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “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”.
No action arising under or in connection with this Agreement, regardless of the form, may be brought by you more than one (1) year after the cause of action arose; actions brought thereafter are forever barred.
This Agreement shall be deemed to have been entered into and shall be construed and enforced in accordance with the laws of the State of New York as applied to contracts made and to be performed entirely within New York, without giving effect to the state’s conflicts of law statute. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this Agreement to arbitrate. YOU ARE WAIVING THE ABILITY TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service.
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.
We may assign this contract at any time, including without limitation to any parent, subsidiary, or any affiliated company, or as part of the sale to, merger with, or other transfer of our company to another entity. You may not assign, transfer or sublicense this Agreement to anyone else and any attempt to do so in violation of this section shall be null and void.