Opencare Terms of Use

1. Electronic and Telephonic Communications.

1. Communications Generally. When you visit the Site or send e-mails, texts or other electronic messages to us, you are communicating with us electronically and you consent to receive communications from us and/or our partners electronically. We will communicate with you by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. The use of the term “partner” is not intended to indicate that the “partners” are in a legal partnership with Opencare. Rather, the term is used in a marketing sense to show participation by the other parties involved in the Opencare products and services.
2. Email Communications. By creating an account on the Site, you acknowledge and agree that Opencare will send service-related e-mails relating to your account, including service updates, appointment reminders and booking confirmations. These communications can be managed through user features made available through the Site from time to time. If you are a member of the Opencare mailing list you will also receive email communications from us regarding our products, services and initiatives (including collaborations and partnerships). If you do not wish to receive these communications, you can unsubscribe from such promotional e-mails at any time by clicking on the unsubscribe link in any of our e-mail communications. As part of the Opencare Referral Program, you may invite others to create an account and try our Services, subject to the Referral Terms & Conditions. Please note that unsubscribing from promotional e-mail communications will not affect any transactional emails we send to you.
3. Telephonic Communications. By opting in to receive calls and text messages from us and our partners, as described in our Privacy Policy and any applicable Additional Terms, you acknowledge and agree that you are solely responsible for providing Opencare with accurate contact information, including your mobile device number and email address. You verify that you are the current subscriber or owner of any telephone number that you provide. Should any of your contact information change, including ownership of your telephone numbers, you agree to immediately notify us before the change goes into effect by changing your user settings or emailing privacy@Opencare.com. Opencare is not responsible for user errors and omissions. You agree to indemnify, defend, and hold Opencare harmless from and against any and all claims, losses, liability, costs, and expenses (including reasonable attorneys’ fees) arising from failure to update your contact information (including your telephone number), your voluntary provision of a telephone number that is not your own, and/or from your violation of any federal, state, or local law, regulation, or ordinance.

2. Changes to these Terms of Use and the Services.

These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). As our Service evolves, the terms and conditions under which we offer the Service may prospectively be modified and we may cease offering the Service under the Terms or Additional Terms for which they were previously offered. Accordingly, each time you sign in to or otherwise use the Service you are entering into a new agreement with us on the then applicable terms and conditions and you agree that we may notify you of other terms by posting them on the Service (or in any other reasonable manner of notice which we elect), and that your use of the Service after such notice constitutes your going forward agreement to the other terms for your new use and orders. We reserve the right to change the Services at any time, without notice, provided that if you have executed an Order Form, we agree not to materially degrade any Services purchased by you.

3. Privacy.

We only use your information as described in the Privacy Policy. We view protection of users’ privacy as a very important community principle. You represent and warrant to us that any data, information, records and files that you load, transmit to or enter into the Site will only contain Personal Information, as defined in the Privacy Policy, in respect of which you have provided all necessary notices and disclosures, obtained all applicable third party consents and permissions and otherwise have all authority, in each case as required by applicable laws, to enable us to make available the Services. You agree that you may be required to enter into supplemental agreements for the protection of personal health information, including our Business Associate Agreement as well as any other applicable Additional Terms.

4. Services.

Opencare may make certain Services, including patient marketplace (“Patient Growth”) and revenue cycle management (“RCM”) Services, available to you. To access certain features of the Services, you may be required to successfully sign up for a user account on the site and be issued with a username and password login credentials (the “User ID”). If you are issued with a User ID, you will keep your User ID secure and will not share your User ID with anyone else, and we will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with these Terms and any applicable Additional Terms. Our practices governing any resulting collection and use of your personal information are disclosed in our Privacy Policy. All applicable payment terms are set forth in our Billing Policy, which you agree to by using our Services.

1. Patient Growth Services. Opencare makes available marketplace Services to allow individuals to search for dentists and schedule appointments. You agree to use Opencare’s patient marketplace (“Patient Growth”) only for any the following purposes and for no other purpose:
   • Finding a health care provider for yourself or another person;
   • Reading reviews and ratings of health care providers;
   • Submitting your own reviews and ratings of health care providers with whom you have a relationship;
   • Inviting friends and family to join Opencare; and
   • Or any other purpose authorized by Opencare from time to time.
2. RCM Services. Opencare also makes available Revenue Cycle Management Services to Providers that have purchased such Services. Revenue Cycle Management Services shall be set out on the Order Form and may include:
   • Insurance verification;
   • Claims submission, which means submission to payors of charges, exclusions, denials and secondary claims within statutory periods;
   • Insurance accounts receivable follow up, which means appropriate correspondence with payors (including research, and resubmission of denials), customer service (e.g., billing inquiries) and claims appeals;
   • Payment posting, which means receipt from Customer of EOBs or other patient payment information, receipt from private payors of electronic remittance advices and other 835 files, and submission of relevant data to Customer;
   • Provision of the following standard month-end reports: account receivables summaries, productivity reports for procedures and providers, month-end close report (i.e., charges, payments, adjustments, and standing accounts receivable) and management summary; and
   • Refund processing (collectively, “Work Product”).
   All reimbursements from third-party payors shall be received directly by Customer. Customer shall promptly send all insurance correspondence and EOBs (or complete copies of these documents) to Opencare. Customer agrees to follow any control procedures implemented by Opencare that are designed to ensure the proper transmission and receipt of such information. Customer agrees to provide Opencare with audit control figures containing all patient visits and payments collected so that Opencare may balance charges and payments posted by Opencare back to Customer totals. In the event that Customer utilizes a lockbox to receive insurance payments, Customer shall give Opencare proper access to such lockbox to enable Opencare to retrieve documents and images sent to such lockbox.
3. Responsibilities When Using the Services. By using the Services, you agree to:
   • Provide only true, accurate, current, and complete information; and maintain and promptly update such information to keep it true, accurate, current, and complete.
   • Comply with all applicable laws and regulations, including, but not limited to, all intellectual property, data, privacy any export control laws;
   • Upload and disseminate only content or information that you own all required rights to under law and do so only consistent with applicable law;
   • Use reasonable efforts to prevent unauthorized access to or use of the Services;
   • Keep User IDs and all other login information confidential;
   • Monitor and control all activity conducted through your account in connection with the Services; and
   • Promptly notify us if you become aware or reasonably suspect any illegal or unauthorized activity or a security breach involving your account, including any loss, theft, or unauthorized disclosure or use of a User ID or account.
   If we have reason to believe that you have failed to comply with the above, Opencare may without notice suspend or terminate your access to our Services and refuse any and all current or future use of our Services (or any portion thereof).

5. Submissions to Opencare.

1. User Submissions. Opencare may now or in the future offer users of the Site and Services, including Patient Growth, the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Site or Services (collectively, “submit”) reviews, messages, text, illustrations, files, images, graphics, photos, comments, feedback, surveys, responses, sounds, music, videos, information, content, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, “User Submissions”). We may allow you to do this through forums, email, and other communication functionality. Except as otherwise described in the Privacy Policy or any Additional Terms, you agree that: (a) your User Submissions will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned; and (b) Opencare does not assume any obligation of any kind to you or any third party with respect to your User Submissions.
   
   For any and all User Submissions, you represent, warrant, and covenant that:
   • You are the sole author and owner of the intellectual property and other rights to the User Submissions, or you have a lawful right to submit the User Submissions and grant Opencare the rights to it that you are granting by these Terms and any Additional Terms;
   • The User Submissions will be a true representation of your experience with the particular health care provider, if applicable;
   • The User Submissions will not be false, misleading, or untrue;
   • The User Submissions will not infringe any intellectual property or other right of any third party; and
   • User Submissions which consist of reviews will not include your name or any other personally identifiable information that may be used to identify you or another patient including, but not limited to, any contact information email addresses, instant messenger usernames, telephone numbers, postal mail addresses, website URLs, or full names through your publicly posted information. Reviews that include personally identifiable information will be edited to remove such information. Opencare further reserves the right to refuse to post any review that contains personally identifiable information.
2. Content Guidelines. As a user of the Service, these Content Guidelines (“Guidelines”) are here to help you understand the conduct that is expected of visitors of the Site and Services’ online forums. Your participation in such forums is subject to all of the Terms, including these Guidelines:
   • Do not use any User Submissions that belong to other people and pass it off as your own. If anyone contributes to your User Submissions or has any rights to your User Submissions, then you must also have their permission to submit such.
   • Your User Submissions must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User Submissions must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
   • Your User Submissions must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law.
   • Your User Submissions must not promote any infringing, illegal, or other similarly inappropriate activity.
   • Do not impersonate any other person, user, or company, and do not submit User Submissions that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
3. License to User Submissions. Except as otherwise described in any applicable Additional Terms, you grant to Opencare the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and royalty-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User Submissions (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User Submissions and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User Submissions for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to Opencare to your User Submissions, you also hereby grant to Opencare the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User Submissions, without any obligation or remuneration to you. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this section.

6. Provision of Customer Data to Opencare.

1. Customer Data. If you subscribe to the RCM Services or otherwise execute an Order Form with us to purchase Services, you agree that Opencare will be required to collect, use, and process data from your organization (including personal health information) for the purpose of providing the Services (“Customer Data”), subject to our Privacy Policy and any applicable Additional Terms. Customer shall make available all billing and encounter information and documentation for all patients in a format reasonably requested by Opencare. Opencare is not responsible for inability to perform the Services due to incorrect information, improperly formatted or corrupt files, viruses on media provided, or incompatible backup media or software. Customer shall maintain an accurate backup copy of all data provided to Opencare. Customer acknowledges that transferring Customer Data in connection with the Services is subject to the possibility of human and machine errors, omissions, and losses, including inadvertent loss of data, or damage to media that may give rise to loss or damage. Customer is responsible to adopt reasonable measures to limit the impact of such problems.
   
   With respect to Customer Data, you represent, warrant, and covenant that:
   • The provision of the Customer Data to Opencare and Opencare’s contemplated use thereof complies with all laws, and Customer has received all necessary third party approvals and consents with respect to the Services;
   • The Customer Data, and Opencare’s use of the Customer Data, does not and will not infringe or violate the intellectual property rights or other rights of any third party; and
   • The Customer Data complies with all applicable medical practice, licensure and ethical standards. Without limiting the foregoing, Customer shall ensure that each employee and contractor of Customer providing medical or other professional services has an unrestricted license to practice medicine or other profession in the state(s) or provinces in which they practice, and Customer will inform Opencare immediately of any change in the status of any such unrestricted license.
2. Ownership and License to Customer Data. Customer shall exclusively own all Customer Data. Customer hereby grants Opencare a non-exclusive, non-transferable, sublicensable, royalty-free, worldwide right to handle Customer Data to: (i) provide Customer any service or Work Product, as defined herein and as set forth in any Additional Terms, including the Business Associate Agreement and an applicable SOW; (ii) generate Aggregate Data (as defined in our Privacy Policy); (iii) sublicense solely to the extent necessary to enable such subcontractor to fulfill its obligations to Opencare, subject to any Additional Terms, if applicable. So long as all Fees owing to Opencare under this Agreement have been paid in full, Customer shall own the Work Product subject to Opencare retaining a non-exclusive, perpetual, irrevocable license to access and use the Work Product to generate Aggregate Data to improve the Services and to provide data-driven recommendations; provided that notwithstanding the foregoing or anything else in this Agreement, Opencare shall retain sole right, title and interest in all of Opencare’s intellectual property rights, know-how, copyrights, techniques, tools, applications, technology, information, ideas, methods, and any other property or proprietary rights which were incorporated in or were necessary to the use or creation of the Work Product or any portion thereof.

7. Proprietary Rights; Limited License.

1. Opencare Materials. All materials on this Site and Services, including, without limitation, information, images, illustrations, audio clips, video clips, surveys and special promotions, and all trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of Opencare (collectively, the “Opencare Materials”) are protected by intellectual property rights owned and controlled by Opencare, its affiliates, or their third-party licensors. The Opencare Materials may not be copied, downloaded, reproduced, republished, uploaded, posted, transmitted or distributed in any way without the prior written consent of Opencare or except as specifically permitted on the Site or Services. Except as to the authorized use of material from the Site or Services by Providers or Customers, use of material for any purpose and other than your own personal, non-commercial or home use is a violation of copyrights and other intellectual property rights. The use of any such material on any other website, social network, blog, handheld device application, web-based application, or networked computer is prohibited.
2. Limited License. Subject to your strict compliance with these Terms and any Additional Terms, we grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download (temporary storage only), display, view, use, play, and/or print one copy of the Opencare Materials (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Opencare Materials, and (ii) may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Opencare Materials, subject to certain Additional Terms.

8. No Unlawful or Prohibited Use.

You will not use the Services in violation of these Terms of Use or of any applicable law. Without limiting the generality of the foregoing, you will not (and will not attempt to) directly or indirectly:

• Send, upload, collect, transmit, store, use, post, publish, or otherwise communicate on the Site any data, information, pictures, videos, music or other materials or content that: (i) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (ii) you do not have the lawful right to send, upload, collect, transmit, store, use, post, publish, or otherwise communicate; (iii) is false, intentionally misleading, or impersonates any other person, including reviews that are not representative of your experience; (iv) is libelous, slanderous, defamatory, bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual; (v) is harmful to minors in any way or targeted at minors; (vi) infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or (vii) encourages any conduct that may violate any applicable laws or would give rise to civil or criminal liability;
• Share, transfer or otherwise provide access to an account designated for you to another person;
• Misuse the Opencare domain or use the Opencare trademark, subject to our Referral Terms.
• Disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Site (e.g., a denial of service attack);
• Gain unauthorized access to the Site or otherwise circumvent or violate the security of the Site, including without limitation: (a) accessing content that is not intended for you; (b) attempting to breach or breaching Site security or authentication measures; (c) restricting, disrupting or disabling service to Site users, hosts, servers or networks by any means, or (d) otherwise attempting to interfere with the proper working of the Site, including but not limited to by introducing any material that is malicious or technologically harmful;
• Use any data mining, robots, or similar data gathering or extraction methods, or copy, modify, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code;
• Use the Services for the purpose of building a similar or competitive product or service; or
• Authorize, permit, enable, induce or encourage any third party to do the above.

9. Information Made Available by Third Parties.

You acknowledge and agree that:

• The list of health care providers listed on the Site may not be a complete list of every health care provider within the specified specialty category or specified distance of the addressed specified and may not be updated on a regular basis even if we have been advised of incorrect or incomplete information;
• The information contained about a particular health care provider may not be accurate or complete and may not be updated on a regular basis even if we have been advised of incorrect or incomplete information;
• Any map displayed may not be complete, accurate, or up-to-date;
• Any request to show results of health care providers who are accepting new patients may not be complete, accurate, or up-to-date and may not be updated on a regular basis even if we have been advised of incorrect or incomplete information;
• Any records of a particular health care provider that states such health care provider accepts new patients may not be complete, accurate, or up-to-date and may not be updated on a regular basis even if we have been advised of incorrect or incomplete information;
• The inclusion of any health care provider on the Site is not an endorsement of such health care provider by Opencare and does not in any way mean that Opencare has conducted any due diligence or other investigation regarding the health care provider;
• The Site is NOT to be used by you as a source of medical advice or for the diagnosis of any medical condition; and
• In the event of an emergency, you will call 9-1-1 and not rely on the information contained in the Site.

10. Linked Sites; Social Networking Services.

1. Links from the Site. The Site may provide links or access to third party content, websites, or services. Opencare does not endorse any third-party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third-party content, websites, services, or systems are not under Opencare’s control, and if you choose to access any such content, websites, or services, or to access the Site from such systems, you do so entirely at your own risk. You acknowledge that you may be required to accept terms of use applicable to third party content, websites, services, or systems and agree to accept and comply with any such terms of use.
2. Social Networking. The Site may integrate with social networking services. You understand that we do not control such services and are not liable for the manner in which they operate. While we may provide you with the ability to use such services in connection with our Site, we are doing so as an accommodation and, like you, are relying upon those services to operate properly and fairly.
3. Links to the Site. We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Site, so long as: (a) the links only incorporate text, and do not use any of Opencare’s trademarks, (b) the links and the content on your website do not suggest any affiliation with Opencare or cause any other confusion, and (c) the links and the content on your website do not portray Opercare or its services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Opencare. Opencare reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

11. Disclaimer and Disruptions or Interruptions in Service.

THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS IN THESE TERMS OF USE (INCLUDING THE FOLLOWING DISCLAIMERS) MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.

YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT, EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF USE, THE SITE AND ALL MATERIALS PROVIDED THROUGH THE SITE OR OTHERWISE BY OPENCARE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND EITHER EXPRESS OR IMPLIED AND OPENCARE DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICES WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, RELIABILITY, CURRENCY, TIMELINESS, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE SITE IS OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.

IN THE EVENT THAT THERE IS AN INTERRUPTION OR DISRUPTION IN ANY OF THE SERVICES OFFERED BY OPENCARE FOR WHATEVER REASON, EVEN IF OPENCARE HAS BEEN MADE AWARE OF AN ISSUE THAT COULD RESULT IN OR IS LIKELY TO RESULT IN AN INTERRUPTION OR DISRUPTION OF SERVICES, OPENCARE WILL NOT BE REQUIRED TO ISSUE A REFUND FOR ANY PURCHASE MADE BY YOU. AS SOON AS OPENCARE HAS IDENTIFIED THE CAUSE OF AN INTERRUPTION OR DISRUPTION, OPENCARE WILL USE IT REASONABLE EFFORTS TO RETURN SERVICE AS SOON AS REASONABLY POSSIBLE.

12. Indemnity.

To the fullest extent allowed by law, you agree to defend, indemnify and hold us, our affiliates and each of their and our officers, directors, agents, and employees, and any licensees, successors and assigns (“Opencare Parties”) harmless from any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including reasonable legal and accounting fees, arising out of or in connection with:

• Your breach or alleged breach of any provision of these Terms of Use, any Additional Terms, or any documents referenced herein;
• Your User Submissions and Customer Data;
• Your negligence, willful misconduct or violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities or the rights of a third party (including intellectual property rights);
• Your use or the use by any third party using your User ID of the Services;
• Any misrepresentation made by you; and
• Opencare Parties’ use of the information that you submit to us (including your User Submissions) (all of the foregoing, “Claims”)

You will cooperate as fully required by the Opencare Parties in the defense of any Claims. Notwithstanding the foregoing, Opencare Parties retain the exclusive right to settle, compromise, and pay any and all Claims. Opencare Parties reserve the right to assume the exclusive defense and control of any Claims. You will not settle any Claims without, in each instance, the prior written consent of an officer of an Opencare Party.

13. Limitations of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES; OR LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES, IN EACH CASE, WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE SERVICES OR THESE TERMS OF USE. FOR ANY OTHER DAMAGES, OR TO THE EXTENT THAT THE FOREGOING LIMITATION IS NOT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR TOTAL AGGREGATE LIABILITY IN CONNECTION WITH OR UNDER THESE TERMS OF USE, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE SERVICES EXCEED $1,000, OR, IF YOU HAVE EXECUTED AN ORDER FORM WITH OPENCARE, THE TOTAL AMOUNT OF FEES PAYABLE BY YOU TO OPENCARE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT THAT GAVE RISE TO LIABILITY. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF USE WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.

14. ARBITRATION AGREEMENT; CLASS ACTION WAIVER

PLEASE READ THESE PROVISIONS CAREFULLY, AS THEY AFFECT YOUR RIGHTS

The laws of the State of New York shall govern these Terms of Use. While we will make reasonable efforts to resolve any disagreements you may have with Opencare, if these efforts fail you agree that all claims, disputes or controversies against Opencare arising in connection with or in any way relating to the relationship between you and Opencare, including your use of the Site and the Services, (“Claims”) will be determined mandatory binding individual (not class) arbitration (except for matters that may be taken to small claims court), no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third- party claims, interpleaders or otherwise; and Claims made independently or with other claims. The party filing arbitration must submit Claims to the American Arbitration Association and follow its rules and procedures for initiating and pursuing arbitration. Any arbitration hearing that you attend will be held at a place chosen by the American Arbitration Association in the same city as the U.S. District Court closest to your then current residential address, or at some other place to which you and Opencare agree in writing, and the arbitrator shall apply New York law consistent with the Federal Arbitration Act. You may obtain copies of the current rules, and forms and instructions for initiating arbitration by contacting the American Arbitration Association at using the contact information noted below.

American Arbitration Association
Website: www.adr.org

A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten (10) years’ experience or a retired or former judge, selected in accordance with the rules of the American Arbitration Association. The arbitration will follow the procedures and rules of the American Arbitration Association which are in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with these Terms and Conditions, in which case these Terms and Conditions will prevail. Those procedures and rules may limit the discovery available to you or us. The arbitrator will take reasonable steps to protect your customer account information and other confidential information if requested to do so by you or us. Each party to the arbitration will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. The arbitrator’s award is final and binding on the parties.

YOU AND OPENCARE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT OR REPRESENTATIVE PROCEEDING, CONSOLIDATED ACTION, OR PRIVATE ATTORNEY GENERAL ACTION. UNLESS YOU AND OPENCARE AGREE, NO ARBITRATOR OR JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, CONSOLIDATED ACTION OR PRIVATE ATTORNEY GENERAL ACTION.

15. Term and Termination; Survival.

These Terms of Use will commence on the day you first use the Services and will continue for as long as you use the Services or until terminated in accordance with the provisions of these Terms of Use (the “Term”). If you have not executed an Order Form, at any time, Opencare may: (i) suspend or terminate your rights to access or use the Services; or (ii) terminate these Terms of Use; if, in the sole discretion of Opencare, you fail to comply with any of these terms of these Terms of Use or engage in any fraudulent activity. You may terminate these Terms of Use at any time and with immediate effect by ceasing use of the Services. For greater certainty, if you continue to use any portion of the Services after these Terms of Use has been terminated, the Terms of Use will continue to apply to the extent of such use. In the event of termination, you are no longer authorized to access the benefits of this Site.

The provisions of these Terms of Use and any Additional Terms which expressly or by their nature should survive termination or expiration, or which contemplate performance or observance subsequent to termination or expiration of these Terms of Use or any Additional Terms, will survive expiration or termination of these Terms of Use for any reason, including the rights and licenses you grant to Opencare in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, and no class action.

16. General.

1. Governing Law. These Terms of Use are governed by and shall be construed in accordance with the laws of New York, USA without giving effect to any principles of conflicts of law and such laws apply to your access to or use of the Services, notwithstanding your domicile, residency or physical location.
2. Entire Agreement. These Terms of Use constitute the entire agreement between you and us pertaining to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Services. A printed version of these Terms of Use and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
3. Waiver. Our failure to insist upon or enforce strict performance of any provision of these Terms of Use will not be construed as a waiver of any provision or right. A waiver of any provision of these Terms of Use must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
4. Severable. If any provision of these Terms of Use proves unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and will not affect the validity and enforceability of any remaining provisions.
5. Assignment. You do not have any right to assign these Terms of Use or any of your rights to the Services to any third party without our prior written consent. Opencare may assign any or all of its rights and obligations under these Terms of Use and Order Form to any third party without your consent. Any assignment in violation of this Section will be void. The terms of these Terms of Use will be binding upon permitted assignees. These Terms of Use will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.
6. Not Confidential. We do not guarantee the confidentiality of any communications made by you through the Site. We do not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Site.
7. Geographic Restrictions. Opencare makes no representation that Services are appropriate or available for use in locations outside of Canada or the United States. We provide the Services for use only by persons located in certain cities in Canada and the United States. If you choose to access this site from locations outside Canada or the United States, you do so at your own risk and you are responsible for compliance with local laws, if and to the extent, local laws apply.
8. English Language. It is the express wish of the parties that these Terms of Use and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.