ReviewThatPlace.com, LLC (“RTP”, “we”, “us” or “our”) provides online infrastructure and online services for healthcare providers. The Order Form (the “Order Form”) sets forth the services being purchased by the client (“you”, “your” or “Client”), who signed the Order Form, the costs for such software and services, and any other relevant details. These terms of service (the “Terms”) are incorporated by reference into and made a part of any Order Form and govern the relationship between Client and RTP. All Order Forms are subject to acceptance by RTP, in its sole discretion. The Order Form, the Terms, and any documents or links referenced in such documents are together will be referred to as the “Agreement”. If you are accepting these Terms on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to these Terms, (ii) you have read and understand these Terms, and (iii) you agree, on behalf of the Client, to these Terms. Please read the following terms carefully. Except as otherwise provided in Section 13 (Dispute Resolution and Arbitration), these Terms provide that all disputes between you and RTP will be resolved by binding arbitration and you agree to give up your right to go to court to assert any right under these Terms. Except as otherwise provided in Section 13 (Dispute Resolution and Arbitration), your rights will be determined by a neutral arbitrator and not a judge or jury, and your claims cannot be brought as part of a class action. Please review Section 13 (Dispute Resolution and Arbitration) below for the details regarding your agreement to arbitrate disputes with RTP.
1. Elements of the Service
The “Service” means the: 1) RTP Medical Solution; 2) and services for medical clinics as detailed in the Order Form and these Terms. The Service includes, but is not necessarily limited to: a) the development of a cloud-based medical website (“RTP WebDev”); b) the provision of cloud-based tools and services, including but not limited to, an online booking tool, online forms, profile syndication & management, analytics Admin Panel, and general online local marketing services (collectively, the “RTP Medical Solution”).
The Services shall also include any required, usual, appropriate or acceptable methods to perform activities related to the Services, including without limitation (a) conducting analytics and other product improvement activities; (b) carrying out the Services or the business of which the Services are a part, (c) carrying out any benefits, rights and obligations related to the Services, (d) maintaining records relating to the Services, and (e) complying with any legal or self-regulatory obligations related to the Services.
- I. RTP WebDev
- II. RTP Medical Solution
- III. Restrictions
2.Responsibilities of the Parties
- II.Business Associate Agreement
3.RTP is a “service provider” (as such term is defined under the CCPA) under this Agreement. RTP will not retain, use, disclose or otherwise process Customer Personal Information for any purpose other than for performing the Service, or as otherwise permitted by the CCPA. RTP will not “sell” (as defined in the CCPA) any Customer Personal Information. RTP may create and derive from its provision of the Service anonymized and/or aggregated data that does not identify you or any consumer, and use, publicize or share with third parties such data to improve RTP’s products and services and for RTP’s other lawful business purposes. Notwithstanding anything in the Agreement or any Order Form entered in connection therewith, you and RTP acknowledge and agree that RTP’s access to Customer Personal Information is not part of the consideration exchanged by the parties in respect of the Agreement. RTP certifies that it understands its obligations under this paragraph and shall comply with them.
4. Client is solely responsible for: (1) identifying whether the CCPA applies to Client; (2) providing any notices of Clients privacy practices that may be required by CCPA; and (3) identifying and responding to consumer requests to exercise CCPA rights to access, delete, or opt out of the sale of personal information (collectively, “CCPA Requests”), including for verifying the identity of consumers submitting CCPA Requests and for evaluating the scope and legality of CCPA Requests. RTP will provide reasonable assistance to Client in responding to such CCPA Requests, which may include assistance by way of providing self-service functionality. RTP will treat any CCPA Requests that Client submits to RTP as presumptively valid under the CCPA.
5. With respect to CCPA Requests for which the Client requires RTP to provide assistance, Client shall: (a) notify RTP within 10 days of receipt of the CCPA Request by emailing [email protected]; and (b) provide RTP with the consumer’s email address or such other information that would permit RTP to honor the request. Client shall be solely responsible and liable for responding to the individual’s CCPA Request, including without limitation, the content and timing of the response, in compliance with the CCPA. In addition:
6. In response to a CCPA Request for access to Customer Personal Information that you submit to RTP, within 10 business days of RTP’s receipt of such request from Client, RTP will provide Client with a file that contains the Customer Personal Information that RTP maintains about the individual via a secure method of transfer. RTP reserves the right to withhold from such file any Customer Personal Information that the CCPA does not require to be provided in response to a CCPA Request.
7. In response to a CCPA Request for the deletion of Customer Personal Information that Client submits to RTP, except as otherwise required by applicable law or permitted by the CCPA, within 10 business days of RTP’s receipt of such request from Client, RTP will delete the Customer Personal Information, to the extent RTP maintains such Customer Personal Information about the individual. Client agrees that RTP may delete such Customer Personal Information by anonymizing and/or aggregating the information such that the information does not identify, and is not reasonably capable of identifying, the individual.
8. Client agrees that it will not direct or otherwise cause RTP to share any Customer Personal Information with any third party in a manner that may constitute a “sale” as such term is defined in the CCPA.
9. For purposes of this, “Customer Personal Information” means any “personal information” (as defined in the CCPA) contained within the data that RTP “processes” (as defined in the CCPA) in connection with performing the Service under the Agreement.
This Section 2.iv concerns compliance with the Telephone Consumer Protection Act of 1991, located at 47 U.S.C. §§ 227 et seq., including the implementing regulations therefor located at 47 C.F.R. 64.1200 et seq. (“TCPA”) and the Telemarketing Sales Rule authorized by the Telemarketing and Consumer Fraud and Abuse Prevention Act, located at 15 U.S.C. §§ 6101-6108 (“TSR”) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, located at 15 U.S.C §§ 7701-7713 (“CAN SPAM Act”). As between Client and RTP, Client agrees that it will comply with, and be solely responsible for complying with, all laws governing any messages sent or received in connection with Clients access and use the Service, including the TCPA, TSR, and CAN SPAM Act. Specifically, Client agrees to be responsible for, without limitation, obtaining any legally required consent(s) from any and all third parties (including Clients patients or customers) to send and receive any text message and/or emails using the Service and honoring any requests revoking such consent or otherwise “opting-out” of receiving any such messages and/or emails. Client agrees to be liable for, and to indemnify, defend and hold harmless RTP from, and against any and all damages, liabilities, judgments, fees, fines, costs and expenses (including reasonable attorneys’ fees) incurred by RTP arising from any claims, demands or legal actions made against RTP resulting from Clients failure to comply with this Section 2.iv.
- I. Client may provide content to RTP for use in RTP’s provision of the Service, including but not limited to photos, images, data, text, and other types of works (“Content”). Client retains copyright and any other proprietary rights that Client may hold in the Content that Client provides to RTP. By providing Content, Client hereby grants RTP a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Client’s Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed).
- II. Client is solely responsible for any Content that Client provides, and for the consequences of posting or publishing such Content. By providing Content, Client affirms, represents, and warrants that:
- III. Client is the creator and owner of, or has the necessary licenses, rights, consents, and permissions, to use and to authorize RTP to use and distribute Client’s Content as necessary to exercise the licenses granted by Client in this Section 3 and in the manner contemplated by RTP, the Service, and these Terms; and
- IV. Client’s Content, and the use of Client’s Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause RTP to violate any law or regulation.
- I. Client
- II. RTP
In connection with Client’s use of the Service and pursuant to RTP’s acceptance of the Order Form, Client will pay to RTP the applicable fees set forth in the Order Form. RTP reserves the right to increase its prices by no greater than 4% at any one time, decrease its prices, charge for previously free Services, and change its billing methods under an Order Form at any time after the first anniversary of that Order Form’s effective date, provided it is not done so more than once per 12 month period, upon notice to you by a posting on the Services, an e-mail sent to Client, or a letter sent to Clients address. All payments required by these Terms exclude all sales, value-added, use, or other taxes, all of which Client will pay in full, except for taxes based on RTP’s net income.
- I. Implementation Fees
- II. Billing Subscriptions
- Monthly Billing Subscription: A twelve-month term in which you are billed a portion (1/12) of the annual contract value on a monthly basis.
- Monthly Billing Subscription: A twelve-month term in which you are billed a portion (1/12) of the annual contract value on a monthly basis.
- Quarterly Billing Subscription: A twelve month term in which you are billed a portion (1/4) of the annual contract value on a quarterly basis.
- The applicable billing subscription option will be indicated on the Order Form. Renewal of the subscription is subject to the terms of Section 6 (Term and Termination) below.
- III. Discounts
- IV. Manner of Payment
- V. Timing of Payment
14. Term and Termination
- I. Term
- II. Client agrees to subscribe to the services that Client has selected on a monthly basis commencing on the initial subscription date at the monthly subscription rate for the selected services until Client provides notice of cancellation in writing to Promethean.
- III. Effect of Termination
15. Hosting, Updates, and Privacy
Client agrees that RTP may, during and after the Term of this Agreement, include Clients name (including any applicable trade name, trademark, service mark or logo) on RTP’s client list, and in its marketing materials, sales presentations and any online directories that RTP may, from time to time, publish.
- I. Confidential Information
- II. Confidentiality of Agreement
- I. RTP Indemnity
- II. Client Indemnity
19. Representations and Warranties; Disclaimer
- I. Mutual Representations and Warranties
- II. Disclaimer
20. Limitation of Liability
RTP WILL NOT BE LIABLE TO THE CLIENT FOR ANY LOST PROFITS, COST OF COVER, LOSS OF DATA, INTERRUPTION OF BUSINESS OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF CLIENT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND (II) RTP'S TOTAL LIABILITY UNDER OR ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID TO RTP BY CLIENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. Dispute Resolution and Arbitration
- I. Generally
- II. Exceptions
- III. No Class Actions
- Each party may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both Client and RTP agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the State or Federal Courts located in Orange County, Florida. All other claims shall be arbitrated in accordance with this Section 13.
Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to correct promptly such failure or delay in performance. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Florida (except that body of law controlling conflicts of law). Subject to Section 13, the parties hereby agree and submit to the sole and exclusive jurisdiction of the state and federal courts located in Orlando, Florida for any litigation brought in a court under this Agreement. Neither party may assign this Agreement without the prior written consent of the other party, except that RTP may freely assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its business or assets without the prior consent of Client. Any attempted assignment or delegation in violation of the foregoing will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. RTP may, without your consent, subcontract to any party the performance of all or any of RTP’s obligations under this Agreement provided that RTP remains primarily liable for the performance of those obligations. Except as otherwise provided herein, any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the applicable party as furnished in writing by either party hereto to the other. RTP’s address for notice is: ReviewThatPlace.com LL 7037 Rose Ave, Orlando FL, 32810, Attn: General Counsel, and by email to: [email protected] Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier. RTP and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between RTP and Client. Neither RTP nor Client will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. This Agreement, including all documents and terms incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. In the event of a conflict between these Terms and the terms and conditions in an Order Form, the terms and conditions of the Order Form will prevail. Notwithstanding anything to the contrary herein, these Terms are subject to change by RTP on a going-forward basis in its sole discretion at any time. When changes are made to these Terms, RTP will make a new copy of the modified Terms available on the Services and will also update the “Last Updated” date at the top of the Terms. Any changes to the Terms will be effective immediately for new Clients and will be effective for continuing Clients upon the earlier of: (i) thirty (30) days after posting notice of such changes on the Services for existing Clients; (ii) thirty (30) days after dispatch of an e-mail notice of such changes to you; or (iii) Client providing consent to the updated Terms in a specified manner, as applicable. Unless otherwise stated, Clients continued use of the Services constitute Clients acceptance of such change(s). If Client does not agree to any change(s) after receiving a notice of such change(s), then, notwithstanding anything to the contrary herein, Clients sole recourse is to terminate the Agreement, effective as of the end of the then current Initial Term or Renewal Term, by providing RTP written notice of termination prior to Clients continued use of the Services. Please regularly check the Services to view the then-current Terms. The parties agree to take such action to amend this Agreement from time to time as is necessary for compliance with the requirements of the Privacy Rule, the Security Rule, HIPAA, and the HITECH Act. Notwithstanding the foregoing, if the parties have not amended this Agreement to address a law or final regulation that becomes effective after the date that the parties enter into this Agreement and that is applicable to this Agreement, then upon the effective date of such law or regulation (or any portion thereof) this Agreement shall be amended automatically and shall incorporate such new or revised provisions as are necessary for this Agreement to be consistent with such law or regulations, and for both parties to be and remain in compliance with all applicable laws and regulations. Except as expressly provided in this Section 14, this Agreement may be amended only in writing executed by both parties. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Except as expressly provided in subsection 13(iii), if any provision of this Agreement or any word, phrase, clause, sentence, or other portion thereof should be held to be unenforceable or invalid for any reason, then such provision or portion thereof shall be modified or deleted in such manner as to render this Agreement as modified legal and enforceable to the maximum extent permitted under applicable laws. Any reference in this Agreement to a section of HIPAA, the Privacy Rule, the Security Rule, the HITECH Act, or any other regulations implementing HIPAA or the HITECH Act, shall mean such regulation or statute as in effect at the time the parties entered into this Agreement or, if and to the extent applicable, as subsequently updated, amended or revised.