Checkout Agreement

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF THE TREATMENT PROVIDER’S SERVICES. BY ENTERING INTO THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT, INCLUDING THOSE ADDITIONAL TERMS AND CONDITIONS AND POLICIES REFERENCED HEREIN. DEPENDING ON YOUR LOCATION, YOU MAY BE SUBJECT TO ADDITIONAL OR DIFFERENT PROVISIONS SET FOR IN ONE OR MORE EXHIBITS OR APPENDICES TO THIS AGREEMENT, WHICH MAY BE UPDATED FROM TIME-TO-TIME.

Article I. Definitions.

In addition to defined terms elsewhere in this Agreement, the following terms have the meaning given to them in this Article I:

(a)               “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

(b)               “Agreement” means this Checkout Agreement, together with any and all exhibits of appendices referenced herein.

(c)               “Billing Period” means the recurring time interval selected by the Treatment Provider and/or You (as shown on the Order Summary), which governs the frequency of Membership Dues, the duration of Your Membership, and renewal terms (e.g., weekly, monthly, annually).

(d)               “Effective Date” is the effective date of this Agreement, which occurs on the date You first signed this Agreement or otherwise first accessed or used the Platform (whether through the Website or the App).

(e)               “Membership” means a recurring subscription to Treatment Provider.

(f)                “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

(g)               “Platform” means Your Treatment Provider’s white-labeled version of the RepeatMD proprietary Platform, which is made available via the RepeatMD website (the “Website”) and mobile application (the “App”), and which allows You to collect rewards and/or purchase Memberships, Treatments, Physical Products, Packages, or related items and services from Treatment Providers, including cards or certificates for a specified cash value of goods or services (a “Gift Card”).

(h)               “RepeatMD” means RepeatMD, Inc., a Delaware corporation. If You are using the Platform in Canada, then “RepeatMD” refers to RepeatMD Canada.

(i)                 “RepeatMD Canada” means RepeatMD Canada, Inc., an Ontario corporation.

(j)                 “Treatment Provider” is defined as a Person or facility where You receive Treatments. Your “Treatment Provider” is where your Membership or Treatment was purchased.

(k)               “Treatment Provider Facility” is where your Treatments will be performed.

(l)                 “Treatment” is any service performed by a Treatment Provider at a Treatment Provider Facility.

(m)             “Physical Product” is any physical good purchased through a Treatment Provider or third-party supplier partnered with RepeatMD.

(n)               “Package” means a collection of some amount of Treatments.

(o)               “You” or “Your” means the natural Person who has signed this Agreement or who has otherwise agreed to be bound by its terms, and who is receiving Treatments from the Treatment Provider.

(p)               “Your Data” means the electronic data and information (in any format or media) entered, submitted by, processed, or otherwise made accessible to RepeatMD by You or Your device through the Platform and that RepeatMD collects, accesses, or otherwise processes in connection therewith.

Article II. Description of Users and Acceptance of Terms

By accessing or using the Platform (whether through the Website or the App, and whether or not You have purchased a Treatment, Package, Product, Membership, or Gift Card), You:

●       Are agreeing to the terms of this Agreement and any other accompanying policies, including the Privacy Policy and the Terms of Use;

●       If purchase a Membership, are committing to an obligation period as stated on the Your Order Summary page which you cannot cancel early, except for the limited reasons specifically set forth in this Agreement; and

●       Acknowledge and agree that You have carefully read and understand this Agreement, and will comply with all terms herein and with any and all of Treatment Provider Policies described in this Agreement.

Article III. Membership Terms

Section 3.01. Your Membership

(a)               Overview. This Agreement sets forth the terms and conditions that apply to Your Membership, Your use of the Platform, and/or Your use of any limited term rewards or other benefits (including pursuant to a one-time or multi-use “pass” or Gift Card) at Treatment Provider. You are responsible for complying with this Agreement. A copy of your Agreement is available at memberships@repeatmd.com.

(b)               Minimum Commitment. Your Membership has an initial commitment period that is stated on Your Order Form page during checkout (the “Initial Period”) and, except for those limited cancellation rights expressly set forth in this Agreement, you may not cancel Your Membership or otherwise terminate this Agreement during the Initial Period. In addition to any other cancellation rights expressly set forth herein, You have the right to cancel Your Membership by midnight of the third (3^rd) business after the Effective Date but only if no rewards or other items on the Platform have been claimed. See Section 3.01(a) of this Agreement for more information. You also have certain rights to cancel this Agreement if the Treatment Provider goes out of business or relocates or if you die or become totally and permanently disabled. See Section 3.03(b) of this Agreement for more information.

(c)               Renewals. All Memberships automatically renew at the end of the Initial Period and continue for the same billing period defined at the time of purchase (e.g., monthly, yearly, every 28 days), as configured by the Treatment Provider, unless cancelled by You or the Treatment Provider in accordance with Section 3.03. RepeatMD and/or Treatment Provider will provide You with notice of renewal at least thirty (30) days prior to the end of the Initial Period (whether via email, SMS, or in-App notification), unless a longer period is required by applicable law. You may cancel Your Membership at any time through the RepeatMD App or Website, provided any minimum commitment period set by the Treatment Provider has been met. Alternatively, you may cancel by providing written notice of cancellation no less than thirty (30) days prior to the expiration of the Initial Period (or any subsequent period). Notices of termination may also be sent to the Treatment Provider and RepeatMD at memberships@repeatmd.com.

(d)               Non-Transferable. Your Membership is personal to you and You may not transfer, assign, or devise Your Membership. Only You may use Your Membership, and You may not permit any other Person to access and use your Membership. RepeatMD has the right to immediately terminate Your Membership if you violate this Section 3.01(d).

(e)               Treatment Provider Facility Closures. During Your Membership, Treatment Provider may, in its sole discretion, temporarily close or suspend or limit Your access to certain Treatment Provider Facilities or areas, features or amenities for any reasonable or necessary purposes, including for purposes of renovation, special events or otherwise, at any time and in its sole discretion.

(f)                Special Provisions for Gift Cards. If You purchase or receive a Gift Card, the following additional provisions apply. Gift Cards are only available in digital format and may only be purchased with credit cards or debit cards (i.e., financing options, including through Affirm, are not available). Gift Cards are specific to a particular Platform and Treatment Provider; accordingly, You may only use a Gift Card on the Platform and at the Treatment Provider from which it was purchased. You may not redeem a Gift Card for cash. Once purchased, a Gift Card will be automatically added to Your RepeatCash balance in the App. Gift Cards are non-transferrable. Unless otherwise stated on the Gift Card or at the time of purchase, Gift Cards to not expire. 

Section 3.02 Payment Policies.

(a)               Membership Dues. During the Initial Period, Your Membership dues (“Membership Dues”) will not change. After the Initial Period, Your Membership Dues may increase or otherwise change in accordance with the terms set forth in Your Order Form or any renewal notice, including to reflect price increases associated with new or enhanced features and benefits in the Platform or as part of Your Membership. Membership Dues are not based on or related to actual usage of Treatments provided by Treatment Provider. You are responsible for the payment of Your Membership Dues in full regardless of Your use of, or failure to use, the Treatment Provider in accordance with the applicable Billing Schedule.

(b)               Ancillary Charges. You are responsible for paying all amounts You incur during Your Membership, including, without limitation, fees for other ancillary services, as well as purchases of retail or other items (collectively, “Ancillary Charges”). Payment for Ancillary Charges is due in full at the time of purchase, and Treatment Provider has no obligation to provide you with any ancillary service or good until it has received such payment. Pricing for all Ancillary Charges is in Treatment Provider’s discretion and may be prospectively modified by Treatment Provider at any time, with or without notice to you.

(c)               Non-Refundable. All fees for or associated with Your Membership, including, if applicable, Your initiation fee, Membership Dues and Ancillary Charges, are non-refundable and, unless otherwise expressly set forth in this Agreement, you will not receive a refund of any such fees, whether as a result of a cancellation of Your Membership or otherwise. From time to time Treatment Provider may provide you with certain complimentary or promotional items. Complimentary items have no cash value and you are not entitled to any refund or other amount for any complimentary item.

(d)               Good Standing. You are required to keep your Membership in good standing by ensuring all Membership Dues and any Ancillary Charges are paid on time. You are responsible for promptly notifying Treatment Provider of any changes to Your credit card, checking account or other payment account information (“Payment Information”). You may update Your Payment Information in the App.

(e)               Separate Buyer. If another individual (a “Buyer”) purchased Your Membership on Your behalf and agreed to have their Payment Information retained on-file with Treatment Provider, You, not the Buyer, are ultimately liable for all Membership Dues and Ancillary Charges payable hereunder and You agree to make all payments hereunder in the event the Buyer fails to do so. Further, by using the Platform, You represent and warrant to Treatment Provider and RepeatMD that the Buyer had all necessary authority to purchase Your Membership. This Agreement does not provide the Buyer with any rights of Membership and the Buyer may not access and use Treatment Provider under your Membership.

(f)                Past-Due Balances. Treatment Provider reserves the right to take any lawful action in response to any past-due Membership Dues and/or Ancillary Charges, including, without limitation: (1) charging the Payment Information then on-file with Treatment Provider; (2) cancelling Your Membership or otherwise suspending Your access to Treatment Provider until all past-due amounts are paid; (3) charging You interest on past-due amounts at rates permitted by applicable law; and/or (4) providing Your information, including without limitation name and contact information, to a collections agency who will attempt to collect Your past-due amounts on behalf of Treatment Provider. You will be responsible for any collection and/or legal costs incurred by Treatment Provider in collecting any past-due amounts associated with Your Membership. Treatment Provider may charge You a $20 fee for each credit card charge or ACH transfer that is dishonored or rejected as invalid. Please note that cancellation of Your Membership will not relieve You of Your obligation to pay any past-due or outstanding amounts.

Section 3.03 Cancellation Rights.

(a)               Cancellation of Contract for Full Refund. IF YOU DECIDE YOU DO NOT WISH TO REMAIN A MEMBER OF TREATMENT PROVIDER, YOU MAY CANCEL THIS AGREEMENT AND YOUR MEMBERSHIP BY EMAILING MEMBERSHIPS@REPEATMD.COM BY MIDNIGHT OF THE THIRD (3RD) BUSINESS DAY AFTER THE EFFECTIVE DATE OF THIS. YOUR EMAIL MUST SPECIFICALLY STATE YOUR DESIRE TO CANCEL THIS AGREEMENT.

(b)               Additional Rights to Cancel. You may also cancel Your Membership and this Agreement, at any time during or after the Initial Period, for either of the following reasons: (i) if Your Treatment Provider goes out of business or if Treatment Provider moves more than twenty-five (25) miles from the preceding location, you may cancel this Agreement by email stating your desire to cancel this Agreement, accompanied by proof of payment on Your Agreement to: memberships@repeatmd.com; or (ii) if You die or become totally and permanently disabled after the Effective Date of this Agreement, Your estate may cancel this Agreement and receive a partial refund of Your unused Membership Fee by emailing a notice to Treatment Provider stating your desire to cancel this Agreement. Treatment Provider may require proof of disability or death. The written notice must be email to the following address: memberships@repeatmd.com. Treatment Provider may require You or Your estate to provide reasonable proof of your disability or death, such as a signed letter from your doctor or a copy of your death certificate. Notice should be accompanied by a receipt or other proof of payment made under this Agreement, as well as any membership cards or fobs or other Membership documentation given to You by Treatment Provider.

(c)               Refunds for Certain Cancellations. For cancellations properly made under Section 3.03(b), within thirty (30) days after Treatment Provider receives notice of such cancellation, it will refund, using the Payment Information on-file, any unearned payments. Unearned payments will be determined in the reasonable discretion of the Treatment Provider based upon the number of Treatments remaining and/or the remaining period of Your Membership. A Treatment Provider’s determinations in this regard are final and binding.

(d)               Cancellation after Initial Period. If You do not wish to continue your Membership after the Initial Period, You may cancel Your Membership and this Agreement (i) in the App (the preferred method of cancellation) or (ii) by providing written notice of cancellation at least thirty (30) days prior to the end of the Initial Period (or, if applicable, any subsequent renewal period). Notice should be provided to: MEMBERSHIPS@REPEATMD.COM. For clarity, notices of cancellation will be effective at the end of the Initial Period or the then-applicable renewal period, regardless of whether You provide notice more than thirty (30) days prior to expiration prior to Initial Period or then-applicable renewal period. You are required to pay all Membership Dues for the Initial Period or renewal period even if You submit a cancellation notice more than thirty (30) days before the Initial Period or renewal period ends. Please note You will not receive a refund of any charges, including but not limited to unused Treatments at the time Your cancellation goes into effect.

(e)               Record of Cancellation. You are responsible for retaining (and providing, if necessary) all records relating to Your cancellation of Membership. In the event of a dispute as to whether and when notice of cancellation was received, Treatment Provider’s records will control.

(f)                Revocation of Membership. Treatment Provider may, in its discretion, revoke or suspend Your Membership, or limit Your right to access certain Treatment Provider Facilities or participate in certain Treatment Provider offerings or ancillary services, upon notice to You provided at any time and for any reason, including without limitation failure to pay Membership Dues or Ancillary Charges or failure to comply with Treatment Provider Policies (as defined below). In some cases, notice of revocation or suspension may be provided orally by Treatment Provider or one of its authorized representatives. If Treatment Provider revokes Your Membership, it will promptly refund, using the Payment Information on-file with Treatment Provider, any prepaid unused Membership Dues and any prepaid unused Ancillary Charges, less any outstanding amounts which may be owed to Treatment Provider hereunder. Revocation or suspension of Membership will be without limitation to any other rights or remedies which Treatment Provider may have at law or in equity, and Treatment Provider reserves the right to, in its discretion, prohibit you from rejoining Treatment Provider in the future.

Section 3.04 Your Health.

(a)               Health Warranty. By purchasing a Membership and using Treatment Provider, You represent and warrant to Treatment Provider and RepeatMD at all relevant times that: (i) You are in good health and have no injury, impairment, disability, disease, ailment or condition that prevents you from safely engaging in Treatments or that increases Your risk of injury or adverse health consequences as a result of engaging in Treatments; and (ii) You are medically fit to receive and engage in Treatments. You are encouraged to see Your doctor on a regular basis and seek their advice prior to engaging in any new or modified treatment regimen or if You have any questions or concerns regarding your treatment regimen or the diagnosis of any medical conditions.

(b)               Responsibility to Notify. You are responsible for notifying Treatment Provider before any Treatment of any limitation to your ability to participate, including without limitation if you have any pre-existing or current injuries, impairments, disabilities, diseases, ailments or conditions that may prevent or effect your participation. You are also responsible for immediately informing your Treatment Provider if You experience any pain or discomfort and/or if You cannot or do not wish to continue your Treatment. IF YOU EXPERIENCE ANY PAIN, DIFFICULTY, DIZZINESS, ILLNESS OR DISCOMFORT WHEN ENGAGING IN ANY SESSION, ACTIVITY OR OTHERWISE, STOP AND CONSULT YOUR DOCTOR OR SEEK EMERGENCY MEDICAL ATTENTION IMMEDIATELY. You hereby acknowledge that You may receive medical treatment or other emergency care (as determined by emergency professionals) while at Treatment Provider Facilities, to the extent such care may be deemed advisable by emergency professionals in the event of injury, accident, illness and/or other incapacitation while at any Treatment Provider Facilities.

(c)               Assumption of Risk; Indemnification. By purchasing a Membership and using Treatment Provider, You acknowledge and agree that the activities you may engage in at the Treatment Provider Facilities, including without limitation when participating in any Treatment, involves risks and danger inherent in engaging in such Treatments. Specific risks vary from one Treatment to another, and range from minor injuries to major injuries, including death. In consideration of the Membership privileges provided to You hereunder and on behalf of Your heirs, beneficiaries, distributees, legal representatives, successors, assigns and guests, You hereby voluntarily and knowingly acknowledge and assume all risks when undergoing any Treatments by any Treatment Provider and You hereby agree to indemnify, defend, and hold harmless RepeatMD, its Affiliates, and their respective agents, employees, officers, attorneys, shareholders, directors, and partners (the “Indemnified Parties”) from and against any and all losses, claims (including any claims for property damage, personal injury, or injury to others or death), demands, suits, proceedings, damages, liabilities, penalties, costs (including reasonable attorneys’ fees and costs) (collectively, “Losses”) incurred by or asserted against any Indemnified Party arising from, related to, or based upon: (i) Your receipt of or engaging in Treatments or use of a Treatment Provider, including without limitation Your failure to exercise reasonable care when receiving Treatments; (ii) Your breach of any representation, warranty, or covenant under this Agreement; or (iii) your negligent or more culpable conduct in connection with receiving Treatments. Further, you acknowledge that Treatment Provider does not manufacture any equipment, tools, or machinery used in its Treatment Provider Facilities and agree that Treatment Provider is providing Treatments and may not be held liable for defective products. For the avoidance of doubt, Your obligation to indemnify includes both direct claims and third-party claims.

(d)               Waiver of Certain Damages. IN CONSIDERATION OF THE MEMBERSHIP PRIVILEGES PROVIDED TO YOU HEREUNDER, AND ON BEHALF OF YOUR HEIRS, BENEFICIARIES, DISTRIBUTEES, LEGAL REPRESENTATIVES, SUCCESSORS, ASSIGNS AND GUESTS, YOU ACKNOWLEDGE AND AGREE THAT: REPEATMD AND ITS AFFILIATES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSSES OR DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY, INCLUDING WITHOUT LIMITATION FOR ANY PROPERTY LOSS OR DAMAGE, LOSS OF EARNINGS OR EARNING CAPACITY, PERSONAL INJURY, ILLNESS OR IMPAIRMENT, PHYSICAL PAIN, MENTAL ANGUISH, PARALYSIS, HEART ATTACK OR DEATH, ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, YOUR MEMBERSHIP, THE USE OR NON-USE OF ANY SERVICE, PRODUCT OR EQUIPMENT PROVIDED OR OFFERED HEREUNDER, WHETHER RELATED TO TREATMENT OR NOT AND REGARDLESS OF LEGAL THEORY OR WHETHER ARISING IN OR BY STATUTE, TORT, CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, INCLUDING THOSE LOSSES OR DAMAGES RESULTING FROM OR CAUSED BY, IN WHOLE OR IN PART, THE NEGLIGENCE OR GROSS NEGLIGENCE OF ANY TREATMENT PROVIDER PARTY AND REGARDLESS OF WHETHER SUCH LOSSES OR DAMAGES ARE KNOWN OR UNKNOWN TO YOU OR ANY OTHER PERSON; PROVIDED THAT THE FOREGOING SHALL NOT APPLY TO ANY LOSSES OR DAMAGES TO THE EXTENT PROHIBITED BY LAW.

(e)               YOU ACKNOWLEDGE AND AGREE THAT REPEATMD HAS MADE NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING TREATMENT PROVIDER OR THE SERVICES OR TREATMENTS PROVIDED BY ANY TREATMENT PROVIDER. REPEATMD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. FURTHER, YOU RECOGNIZE, ACKNOWLEDGE, AND AGREE THAT REPEATMD IS ONLY A TECHNOLOGY PROVIDER FOR TREATMENT PROVIDER AND A PAYMENT PROCESSOR WITH NO CONTROL OVER YOU, YOUR HEALTH, TREATMENTS, TREATMENT SAFETY, TREATMENT PROVIDER, TREATMENT PROVIDER FACILITIES, OR TREATMENT PROVIDER EQUIPMENT. YOU UNDERSTAND AND AGREE THAT REPEATMD IS NOT ENGAGED IN THE PRACTICE OF MEDICINE, HAS NOT QUALIFIED ANY PARTICULAR TREATMENT PROVIDER, AND THAT OUR SERVICES ARE NOT A SUBSTITUTE FOR COMPETENT MEDICAL ADVICE AND THE PROFESSIONAL JUDGMENT OF YOUR TREATMENT PROVIDERS.

(f)                IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANY PARTY OR OTHER PERSON ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNT PAID BY YOU TO TREATMENT PROVIDER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT OR CLAIM AT ISSUE. THE ABOVE LIMITATIONS WILL NOT APPLY TO: (A) TREATMENT PROVIDER’S RECKLESS OR GROSSLY NEGLIGENT ACTS OR OMISSIONS; (B) YOUR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT; OR (C) YOUR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. EXCEPT FOR (A) TREATMENT PROVIDER’S RECKLESS OR GROSSLY NEGLIGENT ACTS OR OMISSIONS; (B) YOUR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT; OR (C) YOUR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY OR ANY OTHER PERSON BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

Section 3.05 Membership Policies.

(a)               Treatment Provider Policies. Treatment Provider may adopt, implement, and update various policies and procedures relating to the provision of Treatments, the use of Treatment Provider Facilities, or other matters pertaining to health, safety, and wellness (collectively, “Treatment Provider Policies”). You must comply with Treatment Provider Policies at all times through the term of this Agreement. Treatments will be available to You as long as You are in compliance with this Agreement. Unless Your Treatment Provider has enabled the “rollover” of rewards feature in the Platform, (i) upon termination or expiration of this Agreement (or cancellation of Your Membership), all unused Treatments (other than special bonus treatments, such as sign-up bonuses that You previously earned) shall automatically terminate and expire, and shall no longer be available for You to use and (ii) no credits, refunds, or other rewards will be given to You for unused Treatments that expire or terminate as set forth herein.

(b)               Your Information. Treatment Provider, its Affiliates, and their respective officers, directors, employees, contractors, agents, and representatives (collectively, “Treatment Provider Policies”) may collect, use, and disclose Your Data, including Your personal information, in accordance with this Agreement and the Privacy Policy. To the extent Treatment Provider is a “covered entity” under the Health Insurance Portability and Accountability Act of 1996 (as amended, and including all rules and regulations promulgated thereunder “HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (as amended, including all rules and regulations promulgated thereunder, “HITECH” and collectively with HIPAA, “Health Information Laws”), Treatment Provider shall only share, access, and disclose Your protected health information in accordance with Health Information Laws and Treatment Provider shall, if applicable, implement compliance procedures in accordance with Health Information Laws.

(c)               Communication with Treatment Provider. You acknowledge and agree that Treatment Provider, RepeatMD, and Treatment Provider Parties have the right to communicate with you regarding Your Membership, this Agreement or otherwise by any lawful method, including without limitation by mail, courier, telephone, email, text/SMS, and notifications within the Platform, and may communicate with You using any contact information you have provided to Treatment Provider. Treatment Provider, RepeatMD, and Treatment Provider Parties may also provide general member-facing or Treatment Provider location-facing communications or notices (if provided) on the Platform, including without limitation changes to Treatment Provider Policies and notices regarding inclement weather or changes to operating hours.  Notices will be deemed given by on the date deposited in the mail or given to a courier, the date a phone call is made or an email or SMS/text is sent, or the date posted in Treatment Provider location or in the Platform. You are responsible for providing accurate, current contact information and must promptly notify Treatment Provider, RepeatMD and Treatment Provider Parties if any of Your contact information changes. Treatment Provider, RepeatMD and Treatment Provider Parties will not be responsible for Your failure to receive any communication or notice as a result of Your failure to provide accurate and current contact information or any other actions outside of Treatment Provider, RepeatMD, or Treatment Provider Parties’ control, including, without limitation, because of any email filtering by Your ISP or email provider, insufficient space in Your email account, failure to update the App, or any errors or losses of any postal or delivery service. You hereby consent and give Treatment Provider, RepeatMD, and Treatment Provider Parties permission to use (or have a third-party provider use on Treatment Provider’s behalf) an automated telephone dialing system and/or artificial or prerecorded voice (where applicable) to call or text You, including on or to any telephone number you provide to Treatment Provider, including your mobile phone.

(d)               New Products and Services. Now and in the future, RepeatMD may develop, test, integrate, and otherwise market new products and services that are designed to improve Your experience, including products or services that leverage artificial intelligence powered applications, machine learning, or other machine-based systems that are designed to operate with varying levels of autonomy and otherwise infer or generate recommendations (collectively, “Experimental Products”). Subject to the terms of this Agreement, You explicitly consent to RepeatMD’s use of Experimental Products on or in connection with the Platform. RepeatMD makes no representations or warranties, express or implied, regarding the accuracy or recommendations of or from Experimental Products. You also acknowledge and agree that RepeatMD may use Experimental Products to conduct Learning (defined below). As used herein, “Learning” means the process by which RepeatMD improves, refines, or further develops know-how, patterns, techniques, or methodologies used to improve, refine, or develop its products and services, or the outcome, content, or products resulting from such process; Learning also means the manner in which Experimental Products use, retain, derive from, extract from, or otherwise refer to Your Data to train, develop, improve, or enhance artificial intelligence or machine learning models, algorithms, or software.

Article IV. Miscellaneous Provisions.

Section 4.01 Informal Dispute Resolution.

(a)               Informal Dispute Resolution. RepeatMD strives to ensure that every experience You have with Treatment Provider exceeds Your expectations. If that doesn’t happen, and without limiting any other provision herein, please contact RepeatMD so the parties have an opportunity to discuss and address any problem or concern You may have. To do so, please contact RepeatMD at LEGAL@REPEATMD.COM and provide Your name, address, phone number and email address, a description of Your problem or concern and any specific relief You seek.

Section 4.02 Governing Law; Mandatory Arbitration of All Disputes.

(a)               Covered Disputes. For purposes of this Agreement, and subject to the following exclusions, “Dispute” means any dispute, claim, or controversy between you and Treatment Provider regarding any aspect of your relationship with Treatment Provider, whether based in contract, statute, regulation, ordinance, tort (including without limitation fraud, misrepresentation, fraudulent inducement, personal injury or claims for lost, stolen, or damaged property, negligence, gross negligence or reckless behavior), or any other legal, statutory or equitable theory, and includes without limitation the validity, enforceability or scope of the Agreement, or any claims arising out of or relating to this Agreement.  However, “Dispute” will not include any dispute, claim, or controversy between You and RepeatMD. As set forth in further detail below, You agree to that any and all Disputes are subject to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code).

(b)               Mandatory Arbitration. Except as expressly set forth herein, any Dispute shall be submitted to arbitration by one arbitrator mutually agreed upon by the parties, and if no agreement can be reached within 30 days after names of potential arbitrators have been proposed by Judicial Arbitration and Mediation Services, Inc. (“JAMS”), then by one arbitrator having reasonable experience in commercial disputes and who is chosen by JAMS. The arbitration shall take place in the State where the Treatment Provider Facility is located, in accordance with the JAMS rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. There shall be limited discovery prior to the arbitration hearing as follows: (a) exchange of witness lists and copies of documentary evidence and documents relating to the issues to be arbitrated, (b) depositions of all party witnesses, and (c) such other depositions as may be allowed by the arbitrators upon a showing of good cause. Depositions shall be conducted in accordance with the Federal Rules of Civil Procedure, the arbitrator shall be required to provide in writing to the parties the basis for the award or order of such arbitrator, and a court reporter shall record all hearings, with such record constituting the official transcript of such proceedings. If required for the enforceability under the Federal Arbitration Act, Treatment Provider will pay all arbitrator’s costs and expenses. If not, those costs will be paid as specified in the above-referenced rules.

(c)               WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY DISPUTE, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.

(d)               Class Action Waiver. You agree that the arbitration of any Dispute will be conducted on an individual, not a class-wide, basis, and that no arbitration proceeding may be consolidated with any other arbitration or other legal proceeding involving Treatment Provider or any other Person. You further agree that You, and anyone asserting a claim through you, will not be a class representative, class member, or otherwise participate in a class, representative, or consolidated proceeding against Treatment Provider, and that the arbitrator of any Dispute between You and Treatment Provider may not consolidate more than one Person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claim (such as a class action, representative action, consolidated action or private attorney general action). If the foregoing class action waiver (“Class Action Waiver”) or any portion thereof is found to be invalid, illegal, unenforceable, unconscionable, void or voidable, then the Dispute will be decided by a court of competent jurisdiction.

(e)               Governing Law. This Agreement, together with all claims and defenses related hereto or arising from this Agreement, will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws rules.

Section 4.03 General Terms.

(a)               Entire Agreement. This Agreement, all exhibits and appendices hereto, together with the Treatment Provider Policies, constitutes the entire and exclusive agreement between you and Treatment Provider relating to your Membership and supersedes any prior or contemporaneous representations, inducements, promises, understandings or agreements, whether oral, written or otherwise.

(b)               Modifications. No provision of this Agreement, or the enforcement thereof, may be modified or waived, except as may be stated in a writing signed by Treatment Provider. Notwithstanding the foregoing or anything to the contrary herein, (i) Treatment Provider may, in its discretion, modify this Agreement at any time upon at least thirty (30) days’ notice to you and (ii) no provision of this Agreement that pertains to RepeatMD or impacts RepeatMD may be modified, waived, or amended without the prior written consent of RepeatMD.

(c)               Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(d)               Construction. Each party has consulted with and has been represented by legal counsel of its own choice in connection with the meaning, interpretation, negotiation, drafting and effect of this Agreement, or has had the opportunity to do so. The normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or amendments hereto.

(e)               No Third-Party Beneficiaries. This Agreement is solely between the parties hereto, and no third party, is a third-party beneficiary to this Agreement; provided, however, that RepeatMD and the Indemnified Parties are third-party beneficiaries of any provision or section of this Agreement pertaining to RepeatMD or Indemnified Parties, including without limitation Section 3.04 and Section 4.02.

(f)                Assignment. Treatment Provider may assign or transfer this Agreement and Your Membership, whether by operation of law or otherwise, to an Affiliate of Treatment Provider or to a third party in the event of any merger, acquisition, sale of assets, change of control or other corporate transaction between Treatment Provider (or one of its Affiliates) and such third party (or one of its Affiliates), in each case without notice to you, and You hereby consent to any such assignment or transfer. You acknowledge that this Agreement is personal to You and that you have no rights to transfer or assign this Agreement to any other individual or entity.

(g)               Anti-Kickback Laws. RepeatMD, Your Treatment Providers, and You acknowledge that the Federal Healthcare Programs Anti–Kickback Law, 42 U.S.C. § 1320a-7b, prohibits, among other things, giving or receiving remuneration in return for (or to induce) referrals, purchases, or recommendations of goods or services for which payment may be made in whole or in part by Medicare or Medicaid. It is the intention of the parties that this Agreement shall comply with the regulatory “safe harbor” under the Anti-Kickback Law for Personal Services, set forth in 42 C.F.R. § 1001.952(d). If any portion of this Agreement is found not to be in compliance with applicable laws, rules, or regulations, that portion of the Agreement shall be deemed to be retroactively amended and reformed as necessary to comply with such laws, rules, or regulations, and the parties shall cooperate in taking whatever steps are necessary to ensure such compliance.

(h)               Force Majeure. Except for failure to pay undisputed amounts when due, neither party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, or other similar causes beyond its control and without fault or negligence of the delayed or non-performing Party or its subcontractors.

(i)                 Headings. The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.

(j)                 Rewards and Benefits. RepeatMD is not responsible for the redemption of any reward or benefit provided to You by Treatment Provider. Treatment Provider is solely responsible for the redemption of any offer, reward, or benefit to You.