Patient Terms and Conditions

Last Updated: May 4, 2023

YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPTED, AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE SERVICES WE PROVIDE.

Toothpicker Holdings, Inc. d/b/a Kennar Health (“Kennar Health,” “Kennar”, “our,” “us,” or “we”) owns and operates the websites located at https://kennarhealth.com/ and the Kennar Health mobile application (collectively, the “Platform”). Your access and use of the Platform, any part thereof, or anything associated therewith, including its content (“Content”), any products or services provided through the Platform or otherwise by Kennar, including data integration and patient communication services on behalf of patients (collectively, including the Platform and the Content, the “Services”) are governed by these Terms and Conditions (“Terms and Conditions” or “Agreement”).

Please read this Agreement carefully because it sets forth the important terms you will need to know about the Services. In this Agreement, the terms “you” and “yours” refer to the person using the Services including all visitors to the Platform and registered patient account users of the Platform and Services, whether used for a fee or for free, including any individuals that act as a parent, guardian or other legal representative of a patient or who are authorized by a patient to create or access registered patient account on the Platform on behalf of the patient (“Patient Account Holders”).

ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US OR YOU ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHTS TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION, AS FURTHER SET FORTH BELOW. WE EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION BELOW.

IF YOU HAVE A MEDICAL EMERGENCY OR ARE CONSIDERING SUICIDE OR HARM TO YOURSELF, IMMEDIATELY CALL YOUR HEALTH CARE PROVIDER, DIAL 911 OR A MENTAL HEALTH CRISIS, DIAL 988. THIS AGREEMENT IS SUBJECT TO CHANGE AS PROVIDED HEREIN.

Acceptance of Terms and Conditions

Your access to and use of the Services is subject to this Agreement, as well as all applicable laws and regulations. If you do not accept and agree to be bound by this Agreement in its entirety, you are strictly prohibited from visiting, accessing, registering with and/or using the Services or any information or Content provided through the Services, except as necessary to review this Agreement. The Services are continually under development, and we reserve the right to revise or remove any part of this Agreement or the Services at our sole discretion at any time and without prior notice to you. Any changes to this Agreement are effective upon posting to the Platform. Unless otherwise indicated, any new Content added to the Services are also subject to this Agreement upon posting to the Platform. If you disagree with this Agreement or any terms or conditions herein, your sole remedy is to discontinue your use of the Services. Your continued use after a change to this Agreement has been posted constitutes your acceptance of this Agreement as modified by such changes.

Your Relationship with Us

We are a company that seeks to be a digital extension that enables healthcare teams to manage patients in between office visits through offering data integration, data analytics and patient communication services to patients and health care providers through the Platform (“Provider Account Holders”, collectively with the “Patient Account Holders”, the “Holders”). Kennar does not provide medical services.

We act solely to provide data integration, data analytics and communications services and as a technology platform to connect you with the Services offered by the Platform. Such Services may be for you personally or for you as a legal representative or an individual that is authorized by a patient to access information through the Services on the patient’s behalf, and share that information provided through the Services with others (e.g., other family members or providers). Kennar does not offer medical advice or diagnoses and by using the Services Kennar is not intended to be a substitute for professional medical advice, diagnosis, or treatment. We do not control or interfere with the practice of medicine or the practice of any other professional services by Provider Account Holders, each of whom is solely responsible for professional services rendered to patients including Patient Account Holders. Kennar makes no representations or warranties about the suitability, reliability, timeliness or accuracy of the medical care and treatment provided by any Provider Account Holder. By accepting this Agreement, you acknowledge and agree that Kennar is not a healthcare provider or provider of any other professional service, and that by using the Services, Patient Account Holders are not entering into a doctor-patient, therapist-patient or other provider-patient relationship with Kennar.

By accepting this Agreement, you acknowledge and agree that Provider Account Holders may send you messages, reports, and emails via the Services. You further understand and agree that it is your sole responsibility to monitor and respond to these messages, reports, and emails and that neither Kennar will be responsible in any way and you will not hold Kennar liable for any loss, injury, or claims of any kind including any loss, injury or claim resulting from failure to read or respond to these messages or, as applicable, for your failure to comply with any treatment recommendations or instructions from the Provider Account Holders.

Availability

You may not accept this Agreement and be a Patient Account Holder if you are not of a legal age to form a binding contract with Kennar. Kennar presumes that minors who access any information through the Services are doing so with the consent of their parent, guardian or other authorized person. The Services are structured for you to obtain health information for your own purposes or for those of an individual for whom you are the parent, guardian, legal representative, or for an individual who has authorized your access to the Services on their behalf. The Services allow you to communicate with Provider Account Holders and other healthcare providers and are not, and should not be, considered or used as comprehensive medical advice or treatment. In some cases, the Services may not be the most appropriate way for you to provide information to, communicate with, or seek medical care and treatment from a provider, including a Provider Account Holder.

We reserve the right to makes changes to the offerings and functionality of the Services without prior notice to you. We may also limit, restrict, or remove the features offered on the Services. In our sole discretion, we may limit, suspend, or terminate accounts if they violate this Agreement. We also reserve the right to deny access to the Services to anyone for any reason.

Duty to Provide Information, Access, and Connectivity

You are responsible for providing and maintaining, at your own risk, option and expense, appropriate software and hardware capabilities (consistent with any technical, quality or other requirements described in the Services) to enable use of the Services, including but not limited to, a computer or mobile device and Internet access. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service. You also have a duty to provide truthful, accurate and complete information in any forms or other communications you submit to or through the Services. You may be asked by us or a Provider Account Holder to provide information for the purpose of provision of the Services to you. You may elect to withhold requested information; however, if you do so, you may be precluded from using the Services. We reserve the right to change the access configuration, including any software, hardware or other requirements of the Services at any time without prior notice.

Privacy Policy

Kennar understands the importance of confidentiality and privacy regarding your personal information. Please see our Privacy Policy https://kennarhealth.com/privacy-policy for a description of how we may collect, use and disclose your personal information.

Registration; User Accounts, Passwords, and Security

You may be obligated to register and set up an account in the Platform in order to access the Services, and the Services may be limited to Holders who have registered and have been granted accounts with usernames and passwords. You agree to accurately maintain and update any information about yourself that you have provided to Kennar. If you do not keep such information current, or fail to submit truthful, accurate and complete information, or we have reasonable grounds to suspect as much, we have the right to suspend or terminate your account and your use of the Services. You also agree to immediately notify Kennar of any unauthorized use of your username, password or any other breach of security that you become aware of involving or relating to the Services by emailing us at [email protected]. In addition, you agree to keep confidential your username and password and to exit from your user account at the end of your use. Kennar explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section. You may not use anyone else’s account at any time unless as described herein for Patient Account Holders.

When establishing an account as a Patient Account Holder, you will be required to provide a username and password that will be used as your login for your account. To help protect the privacy of data you transmit through the Services, where personally identifiable information is requested, we also use technology designed to encrypt the information that you input before it is sent to us using Secure Sockets Layer (SSL) technology or similar encryption technology. In addition, we take steps to protect the Patient Account Holder data we collect against unauthorized access. However, you should keep in mind that the Services and our services are run on software, hardware, and networks, any component of which may, from time to time, require maintenance or experience problems or breaches of security beyond our control. In addition, persons with access to your computer, phone, or other mobile or other devices may be able to access the Services and information about you contained in the Services. It is your responsibility as a Patient Account Holder to affirmatively logout from your account when you are not actively using it. It is also your responsibility to secure and prevent unauthorized physical access to your computer, phone and other devices, and to protect the confidentiality of your username and password. You are responsible for promptly changing your password if you believe that it has been compromised.

You must exercise caution, good sense, and sound judgment using the Services. You are prohibited from violating, or attempting to violate, the security of the Services. Any such violations may result in criminal and/or civil penalties against you. Kennar may investigate any alleged or suspected violations and if a criminal violation is suspected, Kennar may cooperate with law enforcement agencies in their investigations.

Use and Ownership of the Services

The Services and the information and Content available through the Services are protected by copyright laws throughout the world. Subject to this Agreement, Kennar grants you a limited, non-transferable, revocable license to access and use the Services for your personal use. Unless otherwise specified by Kennar in a separate license, your right to use any of the Services or the Content is subject to this Agreement and all rights in the Services and Content are reserved by Kennar. You agree that Kennar and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, social media posts, themes, objects, concepts, photographs, product descriptions, blog posts, artwork, illustrations, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Kennar’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Kennar and may not be used without permission, including in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.

License to Information Submitted via the Services

Subject to any legal limitations, any information you transmit to Kennar via the Services, whether by direct entry, submission, email or otherwise, including data, questions, comments, or suggestions (collectively, “Submissions”), will, to the extent permitted under applicable law, be treated as non- confidential and non-proprietary. Subject to any applicable account settings that you select, you grant Kennar a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Submissions (in whole or in part) for the purposes of operating and providing the Services to you and to our other users. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Submissions has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Kennar, are responsible for all Submissions that you provide to the Services. In addition to the foregoing, Kennar shall have the right, in its sole discretion, to edit, duplicate, or alter the Submission in any manner for any purpose that Kennar deems necessary or desirable, and you irrevocably waive any and all so-called moral rights you may have in the Submission. You further agree that you shall have no right of approval and no claim to compensation in connection with the Submission.

If a Submission you make contains personal information, as discussed in our Privacy Policy https://kennarhealth.com/privacy-policy , Kennar’s rights under this section with respect to the use or disclosure of such personal information will be limited as and to the extent required under applicable law.

Prohibited Use

Any use or attempted use of the Services (a) for any unlawful, unauthorized, fraudulent or malicious purpose; (b) that could damage, disable, overburden, or impair any server, or the network(s) connected to any server; (c) that could interfere with any other party’s use and enjoyment of the Services; (d) to gain unauthorized access to any other accounts, computer systems, or networks connected to any server or systems through hacking, password mining or any other means; (e) to access systems, data, or information not intended by Kennar to be made accessible to a Holder; (f) to obtain any materials, or information through any means not intentionally made available by Kennar; (g) to reverse engineer, disassemble or decompile any section or technology on the Services; or (h) for any use other than the business purpose for which it was intended, is prohibited.

In addition, in connection with your use of the Services, you agree you will not:

• upload or transmit any message, information, data, text, software or images, or other content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic, or that may invade another’s right of privacy or publicity;
• create a false identity or duplicative accounts for the purpose of misleading others or impersonate any person or entity, including, without limitation, any Kennar representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
• upload or transmit any material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);
• upload files that contain viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, spyware or any other similar software or programs that may damage the operation of another’s computer or property of another;
• delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
• attempt to restrict any person from using or enjoying the Services, nor encourage or facilitate violations of these Terms and Conditions or any other Kennar terms;
• violate any applicable local, state, national or international law;
• upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party;
• delete or revise any material posted by any other person or entity;
• manipulate or otherwise display the Services by using framing, mirroring or similar navigational technology;
• probe, scan, test the vulnerability of, or breach the authentication measures of, the Services or any related networks or systems;
• register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any services if you are not expressly authorized by such party to do so;
• harvest or otherwise collect information about others, including email addresses;
• use any robot, spider, scraper, or other automated or manual means to access the Services, or copy, download, distribute or reproduce any content or information on the Services; or
• assist or permit any person in engaging in any of these activities.

Kennar reserves the right to take whatever lawful actions it may deem appropriate in response to actual or suspected violations of the foregoing, including, without limitation, the suspension or termination of a Patient Account Holder's access and/or account. Kennar may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong.

Except as may be provided in the Privacy Policyhttps://kennarhealth.com/privacy-policy or prohibited by applicable law, Kennar reserves the right at all times to disclose any information as Kennar deems necessary to satisfy any applicable law, regulation, legal process or governmental request.

TCPA Communications Policy and Text Messaging Policy

By providing your cell phone number to Kennar, you are agreeing to be contacted by or on behalf of Kennar at the telephone number provided, including text (SMS) messages to your cell phone and other wireless devices, and the use of an automatic telephone dialing system, artificial voice and prerecorded messages, to provide you with informational, marketing, and promotional materials relating to Kennar’s products and services. You may opt-out of receiving text (SMS) messages from Kennar at any time by replying with the word STOP from the mobile device receiving the messages. You need not provide this consent in order to purchase any products or services from Kennar. However, you acknowledge that opting out of receiving text (SMS) messages may impact your experience with the service(s) that rely on communications via text (SMS) messaging.

Right to Monitor

Kennar reserves the right to monitor general use of the Services at any time as it deems appropriate and to remove any materials that, in Kennar’s sole discretion, may be illegal, may subject Kennar to liability, may violate this Agreement, or are, in the sole discretion of Kennar, inconsistent with Kennar’s purpose for the Services.

Third-Party Goods and Services

Parties other than Kennar (collectively, “Third Parties”) provide services or sell products through the Services, and Kennar may also make available to you for purchase certain services, devices, items or products manufactured, distributed or sold by Third Parties (collectively, “Third-Party Goods and Services”). Your use of any Third-Party Goods and Services and any interactions with Third Parties, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such use or interactions, are solely between you and such Third Parties. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction involving Third Parties or any Third Party Goods and Services. You are solely responsible for, and shall exercise caution, discretion, common sense and judgment in, using the Service and disclosing Personal Information. For Patient Account Holders, your interactions and purchases of services or goods from any providers with Provider Accounts are solely between you and such providers.

Parties other than Kennar (collectively, “Third Parties”) provide services or sell products through the Services, and Kennar may also make available to you for purchase certain services, devices, items or products manufactured, distributed or sold by Third Parties (collectively, “Third-Party Goods and Services”). Your use of any Third-Party Goods and Services and any interactions with Third Parties, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such use or interactions, are solely between you and such Third Parties. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction involving Third Parties or any Third Party Goods and Services. You are solely responsible for, and shall exercise caution, discretion, common sense and judgment in, using the Service and disclosing Personal Information. For Patient Account Holders, your interactions and purchases of services or goods from any providers with Provider Accounts are solely between you and such providers.

Certain of Kennar’s shareholders, directors, officers, employees, contractors or agents (collectively, “Kennar Owners and Personnel”) may have a financial interest in one or more Third Parties, and may profit from your use of the Third Parties and/or the sale of Third-Party Goods and Services to you.

Termination

Kennar may terminate your use of the Services or any of our features or services at any time and for any reason without notice, including, for example, for conduct violating this Agreement or if we discontinue the Services. The provisions of this Agreement concerning Services security, prohibited activities, copyrights, trademarks, user submissions, disclaimers, limitation of liability, arbitration and resolution of Disputes (defined herein), indemnity and jurisdictional issues shall survive any such termination or any other termination of this Agreement or your relationship with Kennar. You agree that if your use of the Services is terminated pursuant to this Agreement, you will not attempt to use the Services under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold all Kennar Parties harmless from any and all liability that any such Kennar Parties may incur with respect thereto.

Disclaimers

THE SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. ANY ACCESS TO OR USE OF THE SERVICES ARE VOLUNTARY AND AT THE SOLE RISK OF THE USER. THE KENNAR PARTIES DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, SATISFACTORY QUALITY AND FITNESS FOR PARTICULAR PURPOSE WITH REGARD TO THE SERVICES, AND WITH RESPECT TO ANY INFORMATION, CONTENT, PRODUCT, SERVICE, MERCHANDISE OR OTHER MATERIAL PROVIDED ON OR THROUGH THE SERVICES OR THE PLATFORM. KENNAR DOES NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS OR USEFULNESS OF THE SERVICES. KENNAR DOES NOT WARRANT THAT THE SERVICES WILL FUNCTION WITHOUT DELAYS, DISRUPTIONS, INTERFERENCES, IMPERFECTIONS, CORRUPTION, CYBER ATTACK, VIRUSES, MALWARE, OR ANY ADVERSE INCIDENT.

BY ACCESSING OR USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICES.

Indemnification

You agree to defend, indemnify, and hold the Kennar Parties harmless from and against any and all suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including, without limitation, attorneys’ fees and litigation expenses) relating to or arising from your use of the Services, your fraud, violation of law, or willful misconduct, any breach by you of these Terms and Conditions or your violation of any rights of any other person or entity. We reserve the right to control the defense of any claim by a third party for which we are entitled to indemnification, and you agree to provide us with such cooperation as is reasonably requested by us.

Notices

Any notices to you from Kennar regarding the Services or this Agreement may be made by email, a posted notice on the Services, or regular mail, in the sole discretion of Kennar.

Electronic Communications

When you access or use the Services or send emails to us or the Provider Account Holders, you are communicating with us and other Provider Account Holders electronically. You consent to receive communications from us and other Users electronically. We will communicate with you via email or through the Services. 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. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms and Conditions.

Entire Agreement

This Agreement and any other agreements Kennar may post on the Services or that you and Kennar may execute from to time constitute the entire agreement between Kennar and you in connection with your use of the Services and supersede any prior agreements between Kennar and you regarding use of the Services, including prior versions of this Agreement.

Binding Arbitration/Class Waiver

YOU EXPRESSLY AGREE THAT ANY LEGAL CLAIM, DISPUTE OR OTHER CONTROVERSY BETWEEN YOU AND KENNAR OR YOU AND ANY OF THE KENNAR PARTIES OR ANY PROVIDER ARISING OUT OF OR OTHERWISE RELATING IN ANY WAY TO KENNAR, THE PLATFORM, THE CONTENT OR THE SERVICES, OR ANY OTHER KENNAR GOODS, SERVICES OR ADVERTISING, INCLUDING CONTROVERSIES RELATING TO THE APPLICABILITY, ENFORCEABILITY OR VALIDITY OF ANY PROVISION OF THIS AGREEMENT (COLLECTIVELY “DISPUTES”), SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED BEFORE ONE COMMERCIAL ARBITRATOR FROM THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), RATHER THAN IN A COURT, AS DESCRIBED HEREIN. THE ARBITRATION WILL BE GOVERNED BY THE AAA'S COMMERCIAL ARBITRATION RULES AND, IF THE ARBITRATOR DEEMS THEM APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (COLLECTIVELY “RULES AND PROCEDURES”). YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT, EXCEPT AS EXPRESSLY PROVIDED HEREIN.

Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual.

Payment of arbitration costs will be governed by the AAA’s fee schedule, unless you are able to show that your portion will be prohibitive as compared to litigation costs, in which case Kennar will pay as much of your arbitration costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation costs. Kennar also reserves the right in its sole and exclusive discretion to assume responsibility for all arbitration costs imposed by the AAA. Each party agrees to pay its own attorneys’ fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys’ fees and expenses.

The arbitration shall be conducted in New York, New York, except that, in the event New York, New York is not within 100 miles of your residence, the arbitration may be conducted within 100 miles of your residence, unless the parties agree otherwise in writing. The arbitrator’s award shall be final and binding on all parties and may be entered as a judgment in any court of competent jurisdiction.

For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at www.adr.org.

Notwithstanding anything to the contrary herein, to the extent the Dispute arises from: (a) a violation of either party’s intellectual property rights in any manner; (b) any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act; and/or (c) any claim for equitable relief; then you and Kennar agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court in New York, New York, and both parties agree to submit to the personal jurisdiction of such courts in connection with such proceedings. In addition to the foregoing, either party may assert an individual action in small claims court for Disputes that are within the scope of such court’s jurisdiction in lieu of arbitration as long as such action remains in such court and advances only on an individual (non-class, non-representative) basis.

ALL DISPUTES SUBJECT TO ARBITRATION UNDER THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. NO PARTY MAY BRING ANY CLAIM SUBJECT TO ARBITRATION PURSUANT TO THIS AGREEMENT AS A PRIVATE ATTORNEY GENERAL, IN A REPRESENTATIVE CAPACITY, OR AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS PROCEEDING. THE CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE JOINED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. NO ARBITRATION SHALL BE CONSOLIDATED OR JOINED WITH ANY OTHER ARBITRATION. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). If a decision is issued stating that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim or request for relief, then such claim or request for relief (and only that claim or request for relief) shall be severed from the arbitration and may be brought exclusively in the state or federal courts located in New York, New York, subject to the parties’ respective rights to appeal the decision. All other claims or requests for relief shall be arbitrated. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all claims between the parties remaining in arbitration are finally resolved. The parties agree to submit to the personal jurisdiction of the federal and state courts located in New York, New York for purposes of resolving any claims or requests for relief severed from arbitration pursuant to this paragraph.

You can opt out of the provisions of this Agreement that require the arbitration of Disputes within 30 days of the date that you first agree to any version of this Agreement that requires arbitration of disputes with Kennar. To opt out, you must send your name, residence address, and email address together with a clear statement that you want to opt out of the requirement to arbitrate disputes with Kennar to: 100 Duffy Avenue, Suite 510, Hicksville, NY 11801.

Before you commence arbitration of a Dispute, you must provide us with a written Notice of Dispute that includes your name, residence address, username (if applicable) and email address associated with your User account (if applicable), a detailed description of the Dispute, and the relief you seek. Before we commence arbitration of a Dispute against you, we will provide a written Notice of Dispute to you with a detailed description of the Dispute and the relief we seek. Any Notice of Dispute you send to us should be mailed to 100 Duffy Avenue, Suite 510, Hicksville, NY 11801. If we are unable to resolve a Dispute within 30 days after the applicable Notice of Dispute is received, either party may commence arbitration. Notwithstanding anything to the contrary in this Agreement, if we make any future material modification to any provisions of this Agreement that govern the arbitration or resolution of Disputes, such changes will not apply to any Dispute between you and us for which either party had previously provided a written Notice of Dispute to the other in accordance with this paragraph. Further, if we make any future material changes to the provisions of this Agreement that govern the arbitration or resolution of Disputes, you may reject such changes by sending a written notice of your rejection decision to us at 100 Duffy Avenue, Suite 510, Hicksville, NY 11801 within 30 days of the effective date of such modifications.

Governing Law; Venue; Severability of Provisions

Services are controlled and operated by Kennar from our offices within New York. Those who choose to access the Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent applicable. Access to the Services from jurisdictions where the contents of the Services are illegal or penalized is prohibited.

The validity, interpretation, construction and performance of this Agreement will be governed by the Federal Arbitration Act and the laws of the State of New York, without regard to any conflicts of law provisions.

All parts of this Agreement apply to the maximum extent permitted by law. Our failure to enforce any provision of this Agreement will not constitute a waiver of such right. We both agree that if we cannot enforce a part of this Agreement as written, then that part will be replaced with terms that most closely match the intent of the unenforceable part to the extent permitted by law. Except as otherwise provided in this Agreement, the invalidity of part of this Agreement will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience and do not have any force or effect.

No Agency Relationship

Neither this Agreement, nor any Content, materials or features of the Services create any partnership, joint venture, employment, or other agency relationship between you and Kennar. You may not enter into any contract on our behalf or bind us in any way.

Assignment

You may not assign any of your rights under this Agreement, and any such attempt will be null and void. Kennar may, in its sole discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to this Agreement to any affiliate of Kennar or to another third party in the event that some or all of the business of Kennar is transferred to such other third party by way of merger, sale of its assets or otherwise.

Third Party Beneficiaries

Any use of third party software provided in connection with the Services, or any third party product or service accessed or used in connection with the Services, including healthcare services from Provider Account Holders, will be governed by the applicable third party’s license or terms of use, and not by this Agreement. In addition to this Agreement, your use of the Services must comply with all applicable third party terms of agreement.

Except for the foregoing or as otherwise specifically set forth in this Agreement, including with respect to the indemnification obligations contained herein in favor of the Kennar Parties and the Providers and the agreement to arbitration, we hereby expressly agree that there is no intent by either party to create or establish third party beneficiary status rights or their equivalent in any other referenced individual, subcontractor or third party, including Provider Account Holders, and, except as specifically set forth in this Agreement, that no third party shall have any right to enforce any right or enjoy any benefit that is created or established under this Agreement.

Contacting Us

If you have any questions or concerns about this Agreement, please contact us by email at [email protected]. We will attempt to respond to your questions or concerns promptly after we receive them.