Weight Loss Terms and Conditions

This document contains important information about a consumer’s use of DocDay’s Weight Loss Program services, please read it carefully.  

 

Effective Date: January 4, 2024 

 

The following terms and conditions constitute an agreement between you and DIAB Management Group DBA, Inc. (“DocDay” “we,” or “us”), the operator of DocDay.com (the “Site”) and related websites, applications, services, and mobile applications provided by DocDay and on/in which these Terms of Use are posted or referenced (collectively, the “Services”). These terms of use (the “Terms of Use”), together with our PRIVACY POLICY, ACCEPTABLE USE POLICY and ADDITIONAL TERMS (each of which are incorporated herein by reference, and collectively, this “Agreement”) govern your use of the Services, whether or not you have created an account. You must agree to and accept all the terms of this Agreement, or you don’t have the right to use the Services. 

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BY USING OR OTHERWISE ACCESSING THE SERVICES AND/OR BY CREATING AN ACCOUNT WITH US, YOU AGREE TO THE TERMS OF THIS AGREEMENT, INCLUDING THE INFORMATION PRACTICES DISCLOSED IN OUR PRIVACY POLICY, THE USE RESTRICTIONS IN THE ACCEPTABLE USE POLICY AND THE TERMS AND CONDITIONS IN THE ADDITIONAL TERMS. IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU CANNOT USE THE SERVICES. 

ARBITRATION NOTICE AND CLASS ACTION WAIVER: YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION LAWSUIT, OR CLASS OR COLLECTIVE ARBITRATION. 

  

Please note that we offer the Services “AS IS” and without warranties. If you create an account or use the Services on behalf of an individual or entity other than yourself, you represent that you are authorized by such individual or entity to accept this Agreement on such individual’s or entity’s behalf. 

  

1. ABOUT THE SITE

 

Portions of the Services can be viewed without a DocDay account. To benefit from all the Services we offer, you must create a DocDay account and provide certain basic information about yourself, which you authorize DocDay to use and disclose as described in our Privacy Policy. If someone creates a DocDay account for you or on your behalf, such as an employer, you will still be required to verify your account before accessing DocDay services. 

  

You acknowledge that although some Content may be provided by healthcare professionals, the provision of such Content does not create a medical professional/patient relationship, and does not constitute an opinion, medical advice, or diagnosis or treatment, but is provided to assist you in choosing a doctor, dentist or other healthcare specialist, professional, provider, organization, or agents or affiliates thereof (collectively, “Healthcare Provider”). “Content” means content, text, data, graphics, images, photographs, video, audio, information, suggestions, guidance, and other materials provided, made available or otherwise found through the Services and/or Site, including, without limitation, Content provided in direct response to your questions or postings. 

  

WHILE WE MAKE REASONABLE EFFORTS TO PROVIDE YOU WITH ACCURATE CONTENT, WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK, PRICE OR COST INFORMATION, INSURANCE COVERAGE OR BENEFIT INFORMATION, OR ANY OTHER CONTENT AVAILABLE THROUGH THE SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON ANY SUCH CONTENT. FURTHERMORE, WE DO NOT IN ANY WAY ENDORSE OR RECOMMEND ANY INDIVIDUAL OR ENTITY LISTED OR ACCESSIBLE THROUGH THE SERVICES. 

  

2. WE DO NOT PROVIDE MEDICAL ADVICE

 

The Content that you obtain or receive from DocDay, its employees, contractors, partners, sponsors, advertisers, licensors or otherwise through the Services, is for informational, scheduling and payment purposes only. All medically related information, including, without limitation, information shared via DocDay Answers, the DocDay blog, DocDay social channels, DocDay emails and text messages, and DocDay advertising, comes from independent healthcare professionals and organizations and is for informational purposes only. 

 

WHILE WE HOPE THE CONTENT IS USEFUL IN YOUR HEALTHCARE JOURNEY, IT IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE FROM A QUALIFIED HEALTHCARE PROVIDER, UNDER ANY CIRCUMSTANCE. DO NOT USE THE SERVICES FOR EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY, IMMEDIATELY CALL A HEALTHCARE PROFESSIONAL AND 911. YOUR USE OF THE CONTENT IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE, DENTISTRY, NURSING, OR OTHER PROFESSIONAL HEALTHCARE ADVICE, OR THE PROVISION OF MEDICAL CARE. 

  

We do not recommend or endorse any specific tests, Healthcare Providers, procedures, opinions, or other information that may appear through the Services. If you rely on any Content, you do so solely at your own risk. We encourage you to independently confirm any Content relevant to you with other sources, including the Healthcare Provider’s office, medical associations relevant to the applicable specialty, your state medical boards, and the appropriate licensing or certification authorities to verify listed credentials and education. 

  

3. NO DOCTOR PATIENT RELATIONSHIP

 

DOCTORS, DENTISTS, NURSES, AND OTHER MEDICAL PROFESSIONALS USE THE SERVICES TO SHARE CONTENT WITH YOU, BUT YOUR USE OF THIS CONTENT IS NOT A SUBSTITUTE FOR HEALTHCARE. NO LICENSED MEDICAL PROFESSIONAL/PATIENT RELATIONSHIP IS CREATED WHEN YOU USE THE SERVICES OR CONTENT. THIS IS TRUE WHETHER SUCH CONTENT IS PROVIDED BY OR THROUGH THE USE OF THE SERVICES OR THROUGH ANY OTHER COMMUNICATIONS FROM DOCDAY INCLUDING, WITHOUT LIMITATION, THE “SEARCH FOR PROVIDERS” FEATURE, DOCDAY BOOK APPOINTMENTS, DOCDAY DIRECT TELEHEALTH, DOCDAY MESSAGE CONCIERGE SECURELY, DOCDAY SOCIAL CHANNELS, DOCDAY EMAILS OR TEXT MESSAGE LINKS TO OTHER SITES, OR ANY ASSISTANCE WE MAY PROVIDE TO HELP YOU FIND AN APPROPRIATE HEALTHCARE PROVIDER IN ANY FIELD. 

 

DocDay encourages Healthcare Providers to use the Services responsibly, but we have no control over, and cannot guarantee the availability of, any Healthcare Provider at any particular time. We will not be liable for cancelled or otherwise unfulfilled appointments, or any injury or loss resulting therefrom, or for any other injury or loss resulting or arising from, or related to, the use of the Site or Services whatsoever. 

  

4. YOUR RELATIONSHIP WITH US

 

As part of the Service we make available certain products and services sold and/or offered by us and by third-party providers (medical and/or nursing care), pharmacies, diagnostics laboratories, and other vendors via our Service. 

  

We provide prescription fulfillment services (the “Pharmacies”) and laboratory services via Quest Diagnostics and LabCorp (the “Labs”). We may also provide you with access to a network of independent third-party providers and/or medical groups through DIAB Medical Group (the “Providers”). These providers offer certain independent medical and/or nursing services. By accepting these Terms and Conditions, you acknowledge and agree that any services or products received from the individuals and/or groups are also bound by this Agreement and that they are third-party beneficiaries of this Agreement. 

  

5. NO PHARMACY-RELATIONSHIP

 

By accepting this Agreement, you understand and agree that DocDay is not acting as a pharmacy, nor do we control or interfere with any such services. By accepting this Agreement, you understand and agree that you may be entering into a relationship with a pharmacy, pharmacist, and/or pharmacy group or other such relationship with any one or more such third-party entities and authorize the aforementioned to access your prescription records through a Controlled Substances Prescription Management Program (CSPMP) or any other such program as is required by law and/or under the discretion of the Pharmacy. 

  

6. CONSENT TO PAY FOR SERVICES

 

DocDay and/or its subsidiaries are not currently enrolled with, accepting, or participating in any state, local, of federal healthcare and/or health insurance programs (non-exhaustively: Medicare, Medicaid, etcetera). You acknowledge and accept that DocDay, the Providers, the Pharmacies, and yourself may not receive payment from any such programs for any of the services or products provided by DocDay or any affiliated entities. By engaging with DocDay and using the Services, you are choosing to obtain service solely on a cash-basis. As such, you have sole financial responsibility for paying the costs associated with the Services. 

 

By clicking “I Agree”, checking a related box, or accessing these services you agree that you are exclusively choosing to access these services on a cash-basis and are solely responsible for any costs incurred, and that neither you, nor DocDay, the Providers, the Labs, nor the Pharmacies will submit any claims for reimbursement to any state, local, of federal healthcare and/or health insurance programs (non-exhaustively: Medicare, Medicaid, etcetera). 

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DocDay does not provide Superbills or other medically coded invoices for services. Regular invoices are provided upon request. 

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6.1 REFUND POLICY 

 

Once a service has been provided or a medical product has been shipped, it is not eligible for cancellation, return, or refund. As per federal regulations, pharmacies and providers are restricted from accepting returns or exchanges on prescribed items to ensure the medication's integrity and safeguard patients' health. For prepaid multi-month packages, early cancellations before the package term concludes will incur the following charges: $499 for the first month and $300 for the second month, with refunds processed based on this schedule. Should you believe there has been an error in your order, encounter shipment delays, or have inquiries regarding your purchase, please reach out to us at wlsupport@docday.com  

 

7. CONSENT TO SUBSCRIPTION BILLING

 

All services available for purchase through DocDay are offered on an automatically renewing subscription basis. Your payment method will be charged automatically every month (or at any other agreed-upon interval as displayed during the onboarding process) until you cancel your subscription plan (the “Charges”). You may cancel your future subscription at any time before your payment is processed by emailing wlsupport@DocDay.com directly requesting a cancellation. At that time, any outstanding invoices will be charged via your payment method and your subscription will be cancelled. 

  

To make your experience using the Service simpler, costs and fees associated with the Service from DocDay and all third-party affiliates (Labs, Providers, Pharmacies, etc.) will be bundled into one subscription charge to your payment method. A detailed invoice is available upon request. 

  

8. AUTHORIZATION AND ACKNOWLEDGEMENT; IMPORTANT INFORMATION ABOUT HEALTHCARE PROVIDER RELATIONSHIPS AND HEALTHCARE PROVIDER LISTS

 

In connection with using the Site and the Services to locate and schedule appointments with Healthcare Providers, you understand that: 

YOU ARE RESPONSIBLE FOR CHOOSING YOUR OWN HEALTHCARE PROVIDER, INCLUDING WITHOUT LIMITATION, DETERMINING WHETHER THE APPLICABLE HEALTHCARE PROVIDER IS SUITABLE FOR YOUR HEALTHCARE NEEDS BASED ON SPECIALTY, EXPERIENCE, QUALIFICATION, LICENSES AND OTHER IMPORTANT FACTS AND CIRCUMSTANCES THAT COULD IMPACT YOUR CARE. 

 

DocDay or its designee takes certain limited steps to verify that Healthcare Providers participating in the Services hold certain active licenses, certifications or registrations required by law to practice the specialties of the services offered by them through the Services. DocDay may also exclude Healthcare Providers from our Services who, in DocDay’s discretion, have engaged in inappropriate or unprofessional conduct. 

  

Some Healthcare Providers listed through the Services may pay us a fee in order to be marketed through or to use the Services. To help you find Healthcare Providers who may be suitable for your needs and enable the maximum choice and diversity of Healthcare Providers participating in the Services, we will provide you with lists and/or profiles of Healthcare Providers. These results are based on information that you provide to us, such as insurance information, geographical location, and healthcare specialty. They may also be based on other criteria (including, for example, Healthcare Provider availability, past selections by and/or ratings of Healthcare Providers by you or by other DocDay users, and past experience of DocDay users with Healthcare Providers). Note that DocDay (a) does not recommend or endorse any Healthcare Providers, (b) does not make any representations or warranties with respect to these Healthcare Providers or the quality of the healthcare services they may provide, and (c) does not receive any additional fees from Healthcare Providers for featuring them (i.e., higher or better placement on lists) through the Services. Note, however, to the extent that you use the Services as provided by your employer, DocDay may provide lists and/or profile previews based also on criteria determined by your employer and your employer’s agents or advisors. In addition, to the extent that DocDay serves as a platform for, or provides technical support to, the provider directory associated with your health coverage, Healthcare Providers will appear in the directory based on criteria determined by your health plan or plan sponsor, as applicable. 

  

9. THE SERVICES AND CONTENT ARE INFORMATIONAL AND EDUCATIONAL RESOURCES

 

The Services are an informational and educational resource for consumers and Healthcare Providers. We may, but have no obligation to, publish Content through the Services that is reviewed by our editorial personnel. No party (including DocDay) involved in the preparation or publication of such works guarantee that the Content is timely, accurate or complete, and they will not be responsible or liable for any errors or omissions in, or for the results obtained from the use of, such Content. 

  

Healthcare Provider Content: 

Healthcare Provider and practice Content is intended for general reference purposes only. Healthcare Provider Content may be provided by the Healthcare Provider and/or office staff, and collected from multiple other data sources that may not be confirmed by the Healthcare Provider. Such Content can change frequently and may become out of date, incomplete or inaccurate. Neither the Site nor DocDay provides any advice or qualification certification about any particular Healthcare Provider. 

  

Insurance Content: 

Insurance and insurance related Content (including, without limitation, insurance coverage and benefit Content) (“Insurance Content”) is intended for general reference purposes and for your convenience only. Such Insurance Content may be based on Personal Information (as defined below) you provide to us as well as Healthcare Provider Content (such as CPT codes and other encounter data). The Insurance Content may be provided either directly by the insurance provider you identify or via a third-party clearinghouse. Insurance Content can change frequently and may become out of date, incomplete or inaccurate. You agree that you will (a) provide accurate and complete insurance-related Personal Information, and (b) verify and update your insurance-related Personal Information (including, without limitation, verifying such Personal Information obtained by automated means from an insurance card you provide). Although DocDay strives to provide you with accurate Insurance Content, we are not responsible for any inaccurate, incomplete or outdated Insurance Content, and you are responsible for complying with subparts (a) and (b) hereof. 

  

10. YOUR PERSONAL INFORMATION

 

Protecting patient privacy and keeping your information secure are among our biggest priorities. Our Privacy Policy details how we may use, share, and maintain the information that you voluntarily share with DocDay, which may include, without limitation, your name, address, social security number and contact information, insurance information, medical history and current medical needs, billing information, and other personally identifiable information (collectively, “Personal Information”). 

You may elect to enter information into a medical history form (“Medical History Form”) on behalf of yourself or a third party from whom you have authorization to provide such information. You can request, and in doing so, authorize DocDay to provide this information to your chosen Healthcare Provider. You acknowledge and agree that such information will be reviewed and approved by you or someone authorized by you at the time of your appointment to ensure its accuracy. You also acknowledge that DocDay may use the data or information you provide in a Medical History Form in accordance with our Privacy Policy. 

  

11. YOUR RESPONSIBILITIES

 

 

11.1 Your Account Credentials 

When you create a DocDay account, you will provide an email address and create a password (collectively, “Credentials”). You should keep your Credentials private and not share your Credentials with anyone else. You must immediately notify us if your password has been stolen or compromised by sending an email to help@DocDay.com. You may also be able to connect to the Services through a third-party service, such as Facebook or Google. If you connect to the Services through a third-party service, you give us permission to access and use your information from such third-party service as permitted by such third party service, and to store your log-in credentials for such third party service. DocDay has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed by any such third party. 

  

11.2 Your Responsibilities Generally 

You are responsible for your healthcare expenses. Charges for any medical or related services rendered by Healthcare Providers will apply and will be entirely your responsibility. You are responsible for ensuring that all information that you provide to DocDay is accurate and up to date, including your insurance information. Some Services may not be available through DocDay or your Healthcare Provider depending upon a number of factors, including your insurance participation. Ultimately, you must resolve any dispute between you or any Healthcare Provider arising from any transaction hereunder directly with the Healthcare Provider. 

You are responsible for all use of the Services and for all use of your Credentials, including use by others to whom you have given your Credentials. You may only use the Site and the Services for lawful, non-commercial purposes. You may not use the Site in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Site or the Services. You may not attempt to gain unauthorized access to any of the Services, user accounts, or computer systems or networks, through hacking, password mining or any other means. You may not accumulate or index, directly or indirectly, any Content or portion of the Site and/or Services (including, without limitation, Healthcare Provider Content, appointment availability, price information, and Insurance Content) for any purpose whatsoever. 

In addition to our rights in these Terms of Use, we may take any legal action and implement any technological measures to prevent violations of the restrictions hereunder and to enforce these Terms of Use or our Acceptable Use Policy. 

  

12. CHANGES TO THE SERVICES; NEW SERVICES; ADDITIONAL TERMS

 

12.1 Changes to the Services; New Services 

We may from time to time add new features to the Services, substitute a new service for one of the existing Services, or discontinue or suspend one of the existing Services. Under no circumstances will DocDay be liable for any suspension or discontinuation of any of the Services or portion thereof, and the use of new services will be governed by this Agreement. 

  

12.2 Additional Terms 

Some Services may have additional terms (including, without limitation, policies, guidelines, and rules) that will further govern your use of that particular Service and supplement this Agreement. By using those Services, you agree to comply with any such additional terms, which are incorporated by reference into this Agreement. 

  

 

 

13. LINKS TO OTHER WEBSITES

 

While using the Services, you may encounter links to other websites. These links are provided for your convenience only and we do not endorse these sites or the products and services they provide. You acknowledge and agree that we are not responsible or liable for the content or accuracy of these other websites. Although we attempt to link to trustworthy websites, it is possible that they will contain materials that are objectionable, unlawful, or inaccurate and we will not be responsible or liable for the legality or decency of material contained in or accessed through such other websites. 

  

 

14. CONTENT YOU POST OR SUBMIT

 

You will have the opportunity to submit feedback regarding your experiences with Healthcare Providers you find through the Services, to submit inquiries concerning possible medical needs and to participate in the other interactive or community features of the Site (collectively, “Posted Information”). It is important that you act responsibly when providing Posted Information. 

  

DocDay reserves the right to investigate and, at our discretion, take appropriate legal action against anyone who violates these Terms of Use or the Acceptable Use Policy, including without limitation, removing any offending communication from the Services and terminating the account of such violators or blocking your use of the Services. 

By posting Posted Information through the Services, you agree to and hereby do grant, and you represent and warrant that you have the right to grant, to DocDay and its contractors an irrevocable, perpetual, royalty-free, fully sublicensable, fully paid up, worldwide license to use, copy, publicly perform, digitally perform, publicly display, and distribute such Posted Information and to adapt, edit, translate, prepare derivative works of, or incorporate into other works, such Posted Information. 

  

15. YOUR USE OF CONTENT

 

All of the Content is owned by us or our licensors and is protected by copyright, trademark, patent, and trade secret laws, other proprietary rights, and international treaties. You acknowledge that the Services and any underlying technology or software used in connection with the Services contain DocDay’s proprietary information. We give you permission to use the Content for personal, non-commercial purposes only and do not transfer any intellectual property rights to you by virtue of permitting your use of the Services. You may print, download, and store information from the Site for your own convenience, but you may not copy, distribute, republish (except as permitted in this paragraph), sell, or exploit any of the Content, or exploit the Site or Services in whole or in part, for any commercial gain or purpose whatsoever. Except as expressly provided herein, neither DocDay nor its suppliers grant you any express or implied rights, and all rights in the Site and the Services not expressly granted by DocDay to you are retained by DocDay. 

  

16. DISCLAIMER

 

We created DocDay to improve patients’ healthcare experience, and we want your experience with DocDay to be exceptional. While we work hard to make that happen, you acknowledge that we have no control over, and no duty to take any action regarding: (a) which users gain access to the Site and/or the Services, (b) what Content you access, (c) what effects the Content may have on you, (d) how you may interpret or use the Content, or (e) what actions you may take as a result of having been exposed to the Content. You release us from all liability for you having acquired, you having not acquired, or your use of Content. We make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Site and/or the Services. We have no special relationship with or fiduciary duty to you. WE PROVIDE THE SERVICES “AS IS” AND “AS AVAILABLE.” WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE SERVICES AND THE SITE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF INFORMATION PROVIDED BY USERS OF THE SERVICES OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, DOCDAY MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. DOCDAY DOES NOT WARRANT THAT THE SITE OR THE SERVICES WILL OPERATE ERROR-FREE, BUG-FREE OR FREE FROM DEFECTS, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE SERVICES, SOFTWARE OR SITE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS. 

  

17. GENERAL LIMITATION OF LIABILITY

 

WHILE WE’RE ALWAYS IMPROVING, AND WE HOPE YOU HAVE AN EXCELLENT EXPERIENCE WITH DOCDAY, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR ACCOUNT. IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICES OR THE SITE, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (a) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO CREATE OR MAINTAIN AN ACCOUNT WITH THE SITE OR THE SERVICES, OR (b) $100; EXCEPT THAT, FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE TRANSACTION PROCESSING SERVICES (AS DEFINED IN THE ADDITIONAL TERMS), IN NO EVENT SHALL OUR CUMULATIVE LIABILITY THEREOF REGARDLESS OF THE FORM OF ACTION EXCEED THE TOTAL AMOUNT OF TRANSACTION PROCESSING FEES (AS DESCRIBED IN THE ADDITIONAL TERMS), IF ANY, REMITTED TO AND RETAINED BY DOCDAY FOR PROVIDING TRANSACTION PROCESSING SERVICES FOR APPOINTMENTS MADE BY YOU IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. 

IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SITE AND/OR THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR MEDICAL MALPRACTICE OR NEGLIGENCE OF HEALTHCARE PROVIDERS UTILIZED THROUGH USE OF THE SERVICES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED IN ACCORDANCE HEREIN TO THE MAXIMUM EXTENT PERMITTED BY LAW. 

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” 

  

18. TERMINATION

 

We reserve the right to terminate, suspend and/or deactivate your account immediately, without notice, if there has been a violation of this Agreement or other policies and terms posted on the Site or through the Services by you or by someone using your Credentials. We may also terminate, suspend or deactivate your account for any other reason, including inactivity for an extended period. DocDay shall not be liable to you or any third party for any termination, suspension or deactivation of your access to the Site and/or the Services. Further, you agree not to attempt to use the Site and/or the Services after any such termination, suspension or deactivation (except where deactivation is due solely to inactivity, and you are permitted to create another account). Sections 1, 2, 3, 4, 6, 8, 10, 11, 12, 13, 14, 15, and 16 shall survive any termination or expiration of these Terms of Use. 

  

19. INDEMNIFICATION

 

Upon a request by us, you agree to defend, indemnify, and hold harmless us, our employees, contractors, officers, directors, agents, parent and other affiliates, from all liabilities, claims, demands and expenses, including attorney’s fees, that arise from or are related to (a) your use of the Site and/or Services, or (b) the violation of this Agreement (including without limitation the Terms of Use, the Acceptable Use Policy, and the Additional Terms), or of any intellectual property or other right of any person or entity, by you or any person using your Credentials. 

  

20. MISCELLANEOUS

  

20.1 Electronic Contracting; Copyright Dispute 

Your affirmative act of using the Services and/or creating an account constitutes your electronic signature to this Agreement, which includes our Privacy Policy, Acceptable Use Policy and Additional Terms, and your consent to enter into such agreements with us electronically. 

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20.2 Changes to These Terms of Use 

We may change these Terms of Use and the other documents that are part of the Agreement at any time, as we reasonably deem appropriate. Upon any such change, we will post the amended terms on the Site; we may also attempt to notify you in some other way. Your continued use of the Site and/or the Services shall constitute your affirmative acknowledgement of the Terms of Use or other applicable Agreement document, the modification, and agreement to abide and be bound by the Terms of Use or other applicable Agreement document, as amended. We encourage you to periodically review these Terms of Use and the Agreement. IF AT ANY TIME YOU CHOOSE NOT TO ACCEPT THESE TERMS OF USE OR THE AGREEMENT, INCLUDING FOLLOWING ANY SUCH MODIFICATIONS HERETO, THEN YOU MUST STOP USING THE SITE AND THE SERVICES. 

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20.3 Limitation of Claims 

No action arising under or in connection with this Agreement, regardless of the form, may be brought by you more than one (1) year after the cause of action arose; actions brought thereafter are forever barred. 

  

20.4 Choice of Law; Arbitration Clause and Class Action Waiver – Important – Please Review as This Affects Your Legal Rights 

This Agreement shall be deemed to have been entered into and shall be construed and enforced in accordance with the laws of the State of Delaware as applied to contracts made and to be performed entirely within Texas, without giving effect to the state’s conflicts of law statute. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING, WITHOUT LIMITATION, DISPUTES RELATED TO THIS AGREEMENT, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this Agreement to arbitrate. YOU ARE WAIVING THE ABILITY TO PARTICIPATE AS A CLASS REPRESENTATIVE OR MEMBER IN ANY CLASS OR COLLECTIVE CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS OR COLLECTIVE ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Use or the Agreement. 

  

20.5 Severability 

In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired. Further, the invalid, illegal or unenforceable provision shall be replaced by a provision that comes closest to the intention of the parties that underlie the invalid, illegal or unenforceable provision, except to the extent no such provision is valid, legal and enforceable, in which case such invalid, illegal or unenforceable provision shall be limited or eliminated to the minimum extent necessary so that the other provisions of this Agreement remain in full force and effect and enforceable. 

  

20.6 Entire Agreement 

This Agreement and any supplemental terms, policies, rules and guidelines posted through the Services, each of which are incorporated herein by reference, including the Privacy Policy constitute the entire agreement between you and us and supersede all previous written or oral agreements. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of DocDay to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. 

  

20.7 Headings 

The headings of the sections of this Agreement are for convenience only, do not form a part hereof, and in no way limit, define, describe, modify, interpret or construe the meaning, scope or intent of this Agreement or any terms or conditions therein. 

 

20.8 Assignment 

We may assign this Agreement at any time, including, without limitation, to any parent, subsidiary, or any affiliated company, or as part of the sale to, merger with, or other transfer of our company to another entity. You may not assign, transfer or sublicense this Agreement to anyone else and any attempt to do so is in violation of this section and shall be null and void. 

  

20.9 Eligibility 

You must be 18 years of age or over, or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to create an account with us or use the Site and the Services. If you are between the ages of 13 and 18 or the applicable legal age in your jurisdiction, you can use the Site or Services only under the supervision of your parent or guardian who has agreed to these Terms of Use. Those under the age of 13 may not use the Site or Services. Parents or legal guardians of a child under the age of 18 may use the Site or Services on behalf of such minor child. By using the Site or Services on behalf of a minor child, you represent and warrant that you are the parent or legal guardian of such child, and that all references in these Terms of Use to “you” shall refer to such child or such other individual on whose behalf you have authorization to enter into these Terms of Use and you in your capacity as the parent or legal guardian of such child or as the authorized party of such individual. 

If you do not qualify under these Terms of Use, do not use the Site or Services. Use of the Services is void where prohibited by applicable law, and the right to access the Site is revoked in such jurisdictions. By using the Site and/or the Services, you represent and warrant that you have the right, authority, and capacity to enter into these Terms of Use. The Site is administered in the U.S. and intended for U.S. users only; any use outside of the U.S. or use related to activities outside of the U.S. is prohibited and at the user’s own risk. Users are responsible for compliance with any local, state or federal laws applicable to their use of the Services or the Site.