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Last updated: April 1, 2015

PatientActivator®

SUBSCRIBER AGREEMENT

THIS SUBSCRIBER AGREEMENT (this “Agreement”) describes the terms and conditions which are applicable to subscribers of the PatientActivator® service and related software (collectively, the “Services”) available under the domain and sub-domains of http://www.patientactivator.com, http://www.NationalDentalReviews.org and http://www.18DReputationMonitor.com (the “Site”). The Services and the Site are owned and administered by Futuredontics, Inc., a California corporation d/b/a PatientActivator (“Futuredontics,” “we” or “us”).

  1. Services and Fees

    The Site and the Services work with your practice management software to manage patient retention and relationships, analyze business operations and return on investment, and communicate with your patients (“Consumers”) via phone, e-mail or text message.

    Subscriber agrees to pay the current monthly service fee or promotional rate, as quoted. If Subscriber qualifies for a discount, any qualifying discount will be effective as of the first billing cycle following qualification upon written request by Subscriber.

    Additional fees for other services, including but not limited to, dormant, appointment reminder and re-care phone calls, will be charged monthly on an as-quoted basis.

    Futuredontics reserves the right to increase the monthly service fees upon thirty (30) days’ notice. Continued use of the Services or the Site after notice shall constitute your agreement to such increase.

    Monthly service fees are due and payable on the first business day of each month. Service fees for the first month of service may be prorated based on activation date. Subscriber authorizes Futuredontics to automatically debit the credit card provided by Subscriber, if any. If payment is not received when due, Futuredontics may suspend or terminate Subscriber’s use of and access to the Services or the Site.

    Late payments will incur late charges at a rate of 1.0% a month, or the highest interest rate allowable by law, whichever is lower. All payments shall be made in U.S. currency.

    If Futuredontics is deemed to be the prevailing party in connection with any litigation relating to any fees not paid by Subscriber in accordance with this Agreement, Subscriber shall reimburse Futuredontics for all reasonable attorney fees and costs resulting therefrom.

  2. Term

    If you activate the Services on the first day of the month, the term of this Agreement shall commence on such date and expire on the date twelve (12) months after such date. If you activate the Services on any day other than the first day of the month, the term of this Agreement shall commence on such date and expire on the date twelve (12) months after the last day of the month during which Services were activated. This term of this Agreement will auto-renew for an additional twelve (12) month period at the end of the then-current term unless either party hereto provides written notice of termination at least thirty (30) days prior to the end of the then-current term.

  3. Termination

    3.1 By Subscriber
    (a) During the first thirty (30) days of the term (the “Initial 30 Day Period”), Subscriber may terminate this Agreement by providing Futuredontics written notice of Subscriber’s intent to terminate no later than twenty-four (24) hours before expiration of the Initial 30 Day Period. Failure by Subscriber to provide such written notice will render this provision null and void.

    (b) After the Initial 30 Day Period, there is no termination of convenience. Subscriber will be responsible for the balance of the term if Subscriber terminates this Agreement after the Initial 30 Day Period.

    3.2 By Futuredontics
    (a) Futuredontics may immediately suspend or terminate your use of the Services or the Site at any time if you breach any of the terms of this Agreement or the Privacy Policy.

    Upon request of Subscriber within fourteen (14) days after termination, Futuredontics may, in its sole discretion, provide to Subscriber a download of patient review data in Excel format.

  4. Responsible party

    Subscribers must provide a valid e-mail address, their legal name and any other required information to complete the registration process. As part of accessing the Site you will have a username. Subscribers are responsible for maintaining the privacy and security of their username and password. Futuredontics will not be held liable for any damage or loss that may result from your failure to protect your login information, including, but not limited to, your password. In addition, you will be financially accountable for all use of our Site by you and anyone using your password and login information.

  5. Intellectual Property/Use of Site

    The parties agree that Futuredontics owns all right, title and interest to the trademarks, service marks, copyrights and other intellectual property rights related to the Services and the Site. During the term of this Agreement, subject to the terms and conditions of this Agreement, Futuredontics grants to Subscriber a personal, limited, non-exclusive, non-transferable right to use the Services and the Site solely for its own business purpose. Subscriber shall not sell, re-sell, license, sublicense, assign, distribute or make available the Services or the Site to any third party. Subscriber shall not modify or make derivative works of the Services or the Site; create links to the Services or the Site or frame or mirror any Site pages; or reverse engineer, republish or copy any materials from the Site or the Services.

    We do not permit or authorize any attempt to use the Services in a manner that could damage, disable, overburden or impair any aspect of any of our Site or Services. Unless otherwise provided by this Agreement, or unless specific applicable law requires Futuredontics to allow Subscriber to do so, Subscriber may not do any of the following without the prior written consent of Futuredontics:

    1. Use the Site other than for legitimate business purposes;
    2. Imply in any fashion that Futuredontics is endorsing Subscriber’s products or services;
    3. Use or access of the Site in any way that, in our reasonable judgment, adversely affects the performance or function of the Site, or any other computer systems or networks used by Futuredontics;
    4. Use any robot, spider, other automatic device, or manual process (1) to monitor or copy our Site or permanently store the content contained thereon or (2) for any other unauthorized purpose including, without limitation, using or attempting to use any device, software, or routine to interfere or attempt to interfere with the proper working of the Site;
    5. Copy, reproduce, alter, modify, create derivative works from, or publicly display any content (except exclusively for Subscriber’s own personal, non-commercial use) from the Site; or
    6. Use any device, software, or routine that interferes, or attempts to interfere, with the normal operation of our Site, or take any action that imposes an unreasonable load on our equipment.

    If we believe that unauthorized or improper use is being made of any Service, we may, without notice, take such action as we, in our sole discretion, deem appropriate, including blocking messages from a particular internet domain, mail server or IP address. We may immediately terminate any account which we determine, in our sole discretion

  6. Spam Policy

    We prohibit the use of the Site or the Services in any manner associated with the transmission, distribution or delivery of any unsolicited bulk or unsolicited commercial e-mail ("Spam"). You may not use the Services or the Site to send Spam and you may not deliver Spam or cause Spam to be delivered to any Consumers. In addition, e-mail sent, or caused to be sent, using the Services or the Site may not:

    1. Use or contain invalid or forged headers;
    2. Use or contain invalid or non-existent domain names;
    3. Employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path;
    4. Use other means of deceptive addressing;
    5. Use a third party's internet domain name, or be relayed from or through a third party's equipment, without permission of the third party;
    6. Contain false or misleading information in the subject line or otherwise contain false or misleading content;
    7. Fail to comply with additional technical standards described below; or
    8. Otherwise violate this Agreement.

    We do not authorize the harvesting, mining or collection of e-mail addresses or other information from the Site or through use of the Services. We do not permit or authorize third parties to use the Site or the Services to collect, compile or obtain any information about our subscribers or their Consumers, including but not limited to subscriber e-mail addresses, which are our confidential and proprietary information. Use of the Site and the Services is also subject to our Privacy Policy.

  7. Services and Content

    7.1 Availability

    We will use our reasonable commercial efforts to keep the Service and Site available on a 24-hour/7-days-a-week basis, subject to necessary scheduled downtime for maintenance, unscheduled maintenance and system outages. We cannot promise that access to the Site will be uninterrupted or available at all times. We assume no liability to any user for any delay, interruption or downtime in connection with our operation of, and Subscriber’s access to the Service and the Site.

    7.2 Changes

    Any aspect of any Site may be changed, supplemented, deleted, updated, discontinued, suspended or modified at any time at Futuredontics sole and absolute discretion and without prior notice to you. However, we make no commitment to update the information contained on this Site. You agree that Futuredontics shall not be liable to you for any delay or other damages that might result from such modification, suspension or discontinuance.

    7.3 Viruses

    We make reasonable attempts to exclude viruses from the Site, but cannot ensure that the Site will be at all times free from viruses or other destructive software. You are urged to take appropriate safeguards before downloading information from the Site. We assume no responsibility for any damages to computer equipment or other property that may result from use of the Site or downloading anything from the Site.

    7.4 Outbound Links

    For your convenience, our Site provides links to other sites. When you click on one of these links, you are leaving our Site and entering another site. We are not responsible for any Content, Products and Services provided through such third party websites.

    7.5 Reviews and Ratings

    Reviews and ratings do not reflect the views of Futuredontics; its affiliated entities; or its employees, officers, directors, or shareholders. We reserve the right, but do not undertake the obligation, to refuse or to remove any unacceptable review or other content in our sole and absolute discretion. A non-exhaustive list of unacceptable review or content includes, but is not limited to, the following: Offensive language, including obscenities, hate speech, or harassing, vulgar or explicit language; references to illegal activity; personal threats; or disclosure of personal information. We do not assume responsibility or liability for any claims, damages, or losses resulting from any use of the Site or any Review or other Content posted on the Site.

  8. Indemnity

    You agree to defend, indemnify and hold Futuredontics, its directors, officers, agents, subsidiary companies, shareholders, employees, affiliates and representatives harmless from and against any losses, costs or claims, including court costs and attorneys’ fees and costs, arising from or relating to your use of the Services or the Site or your breach of any provision of this Agreement.

  9. Representations by Subscriber

    You represent and warrant to Futuredontics that (i) you possess all right, power and authority to execute this Agreement and perform your obligations hereunder, (ii) the transactions hereunder will not result in a breach or violation of, or a default under, any agreement by which you are bound, and (iii) you will not engage in any of the following activities, and will make commercially reasonable efforts to ensure that your affiliates also will not: violate any law (including but not limited to the Federal Trade Commission Act, CAN-SPAM Act of 2003 or any applicable rules or regulations of the Federal Trade Commission); or engage in activities that: (a) give rise to criminal or civil liability or infringe any copyright, patent, trademark or service mark, trade secret rights or any other personal, moral, contract, property or privacy right of any third party; (b) contain or promote viruses, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking or warez content or conduct; or (c) encourage conduct that would constitute unlawful conduct or offensive conduct.

  10. Disclaimer

    THE SERVICES AND THE SITE ARE PROVIDED "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, FUTUREDONTICS MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTIES OR CONDITIONS REGARDING THE SERVICES OR THE SITE. FUTUREDONTICS, ITS REPRESENTATIVES, PARTNERS AND AFFILIATES DISCLAIM ANY WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SERVICES OR THE SITE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR HARMFUL CODE. FUTUREDONTICS MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTIES OR CONDITIONS AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE SERVICES OR SITE. WITHOUT LIMITATION OF THE FOREGOING, FUTUREDONTICS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES OR THE SITE WILL OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

  11. Limited Liability

    TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FUTUREDONTICS SHALL NOT BE LIABLE FOR SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, TORT OR COVER DAMAGES; DAMAGES FOR LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, WHETHER OR NOT YOU HAVE ADVISED US OF THE POSSIBILITY OF SUCH DAMAGES; COSTS OF SUBSTITUTE SERVICES;OR LOSS OF DATA RESULTING FROM DELAYS, SERVICE BREACHES OR SERVICE INTERRUPTIONS.

    IN NO EVENT SHALL FUTUREDONTICS BE LIABLE TO SUBSCRIBER IN ANY AMOUNT THAT EXCEEDS THE AMOUNT OF FEES PAID OR CHARGED FOR THE MOST RECENT MONTH OF SERVICE. For the avoidance of doubt, Subscriber expressly agrees that Subscriber’s sole and exclusive remedy for any and all claims for damages under this Agreement is limited to the total sum of fees paid by Subscriber for one month.

    ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

  12. Business Associates Agreement

    The parties have entered into an agreement above, pursuant to which Futuredontics ("Business Associate") may provide certain Services outlined above to Subscriber ("Covered Entity"). As a result of providing the Services, Business Associate and its subcontractors, employees, affiliates, agents or representatives may have access to certain Protected Health Information ("PHI"), defined below, and Business Associate may be considered a "business associate" of Covered Entity as defined in the HIPAA Regulations (defined below). The parties wish to address the requirements of the HIPAA Regulations and ensure that Business Associate will establish appropriate safeguards, including without limitation certain administrative requirements with respect to such PHI. In consideration of the foregoing and the covenants and promises contained in this Agreement above and this Business Associates Agreement, the parties agree as follows:

    RECITALS

    1. CE wishes to disclose certain information to BA some of which may constitute Protected Health Information (“PHI”) (as defined in the HIPAA Rules), in connection with BA’s performance of services for CE.

    2. CE and BA intend to protect the privacy and provide for the security of PHI disclosed to BA pursuant to the BAA in compliance with the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 ("HIPAA") and its implementing regulations, including the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”), the Security of Protected Standards for the Protection of Electronic Protected Health Information (the “Security Rule”), and the Breach Notification for Unsecured Protected Health Information Rule (the “Breach Notification Rule”); as amended or otherwise modified by the American Recovery and Reinvestment Act of 2009, including the Modifications to the HIPAA Privacy Security, Enforcement and Breach Notification Rules under the Health Information Technology for Economic and Clini¬cal Health Act, Public Law 111-005 (the “HITECH Act"), and regulations promulgated thereunder by the U.S. Department of Health and Human Services (the "HIPAA Regulations"); the Genetic Information Nondiscrimination Act; other modifications to the HIPAA Rules and Final Rule; and other appli¬cable state and federal laws and regulations.

    3. As part of the HIPAA Regulations, the Privacy Rule, the Security Rule, and the Breach Rule (defined below) require CE to enter into a contract containing specific requirements with BA prior to the disclosure of PHI, as set forth in, but not limited to, Title 45, Sections 164.314(a), 164.502(e) and 164.504(e) of the Code of Federal Regulations ("CFR") and contained in this BAA.

    In consideration of the mutual promises below and the exchange of information pursuant to this BAA, the parties agree as follows:

    AGREEMENT

    1. DEFINITIONS
      1. Catch-all definition:
        The following terms used in this BBA shall have the same meaning as those terms in the HIPAA Rules and Regulations: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, PHI, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured PHI, and Use.
      2. Specific definitions:
        1. “Breach” shall have the same meaning as set forth in 45 CFR Section 164.402.
        2. “Business Associate” (“BA”) shall generally have the same meaning as the term “business associate” at 45 CFR Section 160.103.
        3. “Covered Entity” (“CE”) shall generally have the same meaning as the term “covered entity” at 45 CFR Section 160.103.
        4. “Electronic Protected Health Information” shall mean any PHI which is also “electronic protected health information” as that term is defined in 45 CFR Section 160.103.
        5. “HIPAA Rules” and “HIPPA Regulations” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164 and under the HITECH Act.
        6. Individual. “Individual” shall have the same meaning as the term “individual” in 45 CFR Section 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR Section 164.502(g).
        7. Protected Health Information or “PHI” shall have the same meaning as the term “protected health information” in 45 CFR Section 160.103 that is created, received, maintained, transmitted, or accessed by BA from and on behalf of CE.
        8. Security Incident” means the attempted or successful unauthorized access, use, disclosure, modification, destruction of information or interference with system operations in an information system.

    2. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE

      Business Associate agrees to:

      1. Not use or disclose PHI other than as permitted or required by this BBA or as required by law;
      2. Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI, to prevent use or disclosure of PHI other than as provided for by this BBA;
      3. Report, in writing, to covered entity any use or disclosure of PHI not provided for by this BBA of which it becomes aware, including breaches of unsecured PHI as required at 45 CFR Section 164.410, and any Security Incident of which it becomes aware, without unreasonable delay and in no case later than three (3) days after discovery;
      4. Breach notifications to individuals, The HHS Office for Civil Rights (“OCR”), and potentially the media, will be handled by the CE. BA agrees to pay the actual costs of CE for such notifications, as long as the nature of the breach has been determined to have been caused by the BA or BA’s Subcontractor(s).
      5. In accordance with 45 CFR Sections 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of the BA agree to the same or more stringent restrictions, conditions, and requirements that apply to the BA with respect to such information;
      6. Make available PHI in a designated record set to the CE for inspection and copying within five (5) days of a request by CE to enable CE to fulfill its obligations under 45 CFR Section 164.524;
      7. Make any amendment(s) to PHI in a designated record set as directed or agreed to by the CE pursuant to 45 CFR Section164.526, within thirty (30) days of receipt of a request from the CE or take other measures as necessary to satisfy CE’s obligations under 45 CFR Section164.526;
      8. Maintain and make available, within thirty (30) days of notice by CE or a request, the information required to provide an accounting of disclosures to the CE as necessary to satisfy CE’s obligations under 45 CFR Section164.528;
      9. To the extent the BA is to carry out one or more of CE's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the CE in the performance of such obligation(s); and
      10. Make its internal practices, books, and records available to CE and the OCR for purposes of determining compliance with the HIPAA Rules.
      11. To mitigate, to the extent practicable, any harmful effect that is known to BA of a use or disclosure of PHI in violation of the requirements of this BBA and shall cooperate with CE in the mitigation process.
      12. To acknowledge and agree that it shall have no ownership rights with respect to the PHI.
      13. To the extent that BA is to carry out one or more covered obligations under the Privacy Rule, Security Rule, Breach Notification Rule, and any and all other applicable state and federal laws and regulations.

    3. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE
      1. BA may only use or disclose PHI for the sole purpose of performing BA’s obligations as directed by CE and as permitted under this BAA.
      2. BA may use or disclose PHI as required by law.
      3. BA agrees to make uses and disclosures and requests for only the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure.
      4. BA may not use or disclose PHI in a manner that would violate Subpart E of 45 CFR Part 164 if done by CE, except for the specific uses and disclosures set forth in paragraphs 5 and 6 below.
      5. BA may disclose PHI for the proper management and administration of BA or to carry out the legal responsibilities of the BA, provided the disclosures are required by law, or BA obtains reasonable written assurances from the third party to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the third party, and a written agreement from the third party is in place outlining that the third party immediately notifies BA of any instances of which it is aware in which the confidentiality of the information has been breached.
      6. BA may provide data aggregation services relating to the health care operations of the CE.
      7. BA shall not (a) use or disclose PHI for fundraising or marketing purposes, except as provided in a separate contract between CE and BA, and consistent with the requirements of 42 U.S.C. Section 17936; (b) shall not disclose PHI to a health plan for payment or health care operations purposes if the patient has requested this special restriction and has paid out of pocket in full for the health care item or service to which the PHI solely relates, 42 U.S.C. Section 17935(a); and (c) shall not directly or indirectly receive remuneration in exchange for PHI, except with the prior written consent of CE and as permitted by the HITECH Act, 42 U.S.C Section 17935 (d)(2); however, this prohibition shall not affect payment by CE to BA for services provided at the direction of CE.
      8. BA shall not use PHI to create de-identified Health Information in accordance with 45 CFR Section 164.514(b) for purposes unrelated to this BBA without prior written approval of CE.

    4. PROVISIONS FOR COVERED ENTITY TO INFORM BUSINESS ASSOCIATE OF PRIVACY PRACTICES AND RESTRICTIONS
      1. CE shall notify BA of any limitation(s) in the notice of privacy practices of CE under 45 CFR Section 164.520, to the extent that such limitation may affect BA’s use or disclosure of PHI.
      2. CE shall notify BA of any restriction on the use or disclosure of PHI that CE has agreed to or is required to abide by under 45 CFR Section 164.522, to the extent that such restriction may affect BA’s use or disclosure of PHI.

    5. TERMINATION
      1. Material Breach. If either Party (CE or BA) knows of a pattern of activity or practice of the other Party that constitutes a material breach or violation of the BAA, or other arrangement, then the non-breaching Party shall provide written notice of the breach or violation to the other Party that specifies the nature of the breach or violation. The breaching Party must cure the breach or end the violation on or before thirty (30) days after receipt of the written notice. In the absence of a cure reasonably satisfactory to the non-breaching Party within the specified time frame, or in the event the breach is reasonably incapable of cure, then the non-breaching Party may do the following: (a) if feasible, terminate the arrangement; or (b) if termination of the arrangement is infeasible, report the issue to the Secretary of the HHS.
      2. Obligations of BA Upon Termination.
        1. Upon termination of this Agreement for any reason, BA shall return to CE (or, if agreed to by CE, destroy) all PHI received from CE, or created, maintained, or received by BA or its agents or subcontractors on behalf of CE, that the BA or its agents or subcontractors still maintain in any form. BA shall retain no copies of the PHI. BA shall certify in writing to CE that such PHI has been destroyed.
        2. If return or destruction of said PHI is not feasible, as determined by CE, BA shall continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI to prevent use or disclosure of the PHI other than for those purposes that make the return or destruction of such PHI infeasible.
      3. Survival. The obligations of BA under this Section shall survive the termination of this Agreement.

    6. MISCELLANEOUS
      1. Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
      2. Assistance in Litigation. BA shall make itself and any subcontractors, employees or agents assisting BA in the performance of its obligations under this BAA or any other arrangements between CE and BA available to CE, at no cost to CE, to testify as witnesses, or otherwise, in the event of litigation or administrative proceedings being commenced against CE, its directors, officers or employees based upon a claim of violation of HIPAA, the HITECH Act, or other laws related to security and privacy, except where BA or its subcontractor, employee or agent is named as an adverse party.
      3. Indemnification; Limitation of Liability. BA shall defend, indemnify and hold harmless CE, its parent and subsidiary corporations, officers, directors, employees, and agents from any and all claims, inquiries, investigations, costs, reasonable attorneys’ fees, monetary penalties, and damages incurred by CE to the extent resulting directly or indirectly from any acts or omissions of BA, including without limitation breach of this BAA by BA.
        1. CE shall defend, indemnify and hold harmless BA and its representatives for any and all claims, inquiries, investigations, costs, reasonable attorneys’ fees, monetary penalties, and damages incurred by BA and its representatives to the extent resulting directly or indirectly from any acts or omissions of CE, including without limitation breach of this BAA by CE.
        2. This provision shall survive the termination of the BAA.
      4. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.
      5. No Third-Party Beneficiaries. Nothing express or implied in the BAA is intended to confer, nor shall anything herein confer upon any person other than CE, BA and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.
      6. Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed given or delivered (a) when delivered personally, against written receipt, (b) if sent by registered or certified mail, return receipt requested, postage prepaid, when received, (c) when received by facsimile transmission, and (d) when delivered by a nationally recognized overnight courier service, prepaid, and shall be sent to the addresses set forth below or at such other address as each party may designate by written notice to the other by following this notice procedure.
      7. Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
      8. Authority. The undersigned representative acknowledges and warrants that he/she has the authority to bind the entity BA.

  13. Governing Law and Dispute Resolution

    Futuredontics maintains the Site in California and Subscriber agrees that this Agreement will be interpreted and construed in accordance with the laws of the State of California without reference to its choice of law rules. Any dispute or controversy arising out of or related to this Agreement shall be submitted to binding arbitration in Los Angeles County, California, upon the delivery by one party to the other of a notice specifying the nature of the dispute or controversy and demanding that the matter be sent to arbitration. The arbitrator will be one person who shall be independent of the parties. The arbitrator shall be selected by agreement of the parties to the dispute from the list of proposed arbitrators from JAMS. The arbitration shall be administered by JAMS in Los Angeles County, California pursuant to its Streamlined Arbitration Rules and Procedures then in effect. Judgment on the award may be entered in any court having jurisdiction. Notwithstanding the foregoing, arbitration does not apply and nothing in this Agreement shall prohibit a party from seeking injunctive or other equitable relief. The parties consent to the jurisdiction of such entity, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.

  14. Independent Contractor

    The parties are independent contractors, and nothing in this Agreement will be construed to create a joint venture, partnership, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way.

  15. Contact Information

    If you have any questions or concerns about this Agreement or if you need any further assistance regarding the Services, you may contact us as follows:

    Email:
    Mail:
    support@patientactivator.com
    Customer Service- PatientActivator
    Futuredontics, Inc.
    6060 Center Drive 7th Floor
    Los Angeles, CA 90045

  16. Complete Agreement

    This Agreement constitutes the parties’ complete agreement as to the subject matter covered by this Agreement and supersedes all prior verbal or written agreements.

  17. Waiver

    No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.

  18. Captions

    Captions herein are for convenience of reference only and do not constitute a part of this Agreement.

  19. Assignment

    Subscriber may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Futuredontics’ prior written consent. Any purported assignment, delegation or transfer in violation of this Section 19 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

  20. Force Majeure

    Notwithstanding any of the foregoing and excluding payment obligations, neither party shall be in breach or otherwise liable for events beyond the party’s control (other than events that could have been avoided or prevented by commercially reasonably foresight, planning or implementation), including, but not limited to, an act of God, fire, earthquake, flood or other natural disasters, power failures, acts of government or acts of any third party (each a “Force Majeure Event”). Each party experiencing a Force Majeure Event agrees to promptly notify the other party of the nature and expected duration, if known, of such Force Majeure Event.

  21. Amendment

    Notwithstanding anything in this Agreement to the contrary, Futuredontics shall have the right to unilaterally amend the terms of this Agreement by providing thirty (30) days’ advance written notice to Subscriber. Subscriber’s continued use of the service after such thirty (30)-day period shall constitute Subscriber’s agreement to any such revised terms.


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