1. Introduction
Please review these Hoot Terms of Service carefully. Once accepted, these Hoot Terms of Service become a binding legal commitment between you (“you,” “your,” “yours,” or “Subscriber”) and Hoot Health Inc. (“we,” “us,” “ours,” or “Hoot”). Sometimes in these Hoot Terms of Service we call you and us a “party” or together, the “parties.”
Hoot provides content and online management services to help health care providers manage myopia in kids (collectively, the “Services”). By ordering the Services from Hoot through a service order, Hoot’s website, or your Hoot account (each, a “Service Order”), you accept and agree to these Hoot Terms of Service. These Hoot Terms of Service together with any Service Order constitute the “Agreement” between you and Hoot.
THIS AGREEMENT INCLUDES A MUTUAL BINDING ARBITRATION AGREEMENT IN SECTION 10 THAT REQUIRES RESOLUTION OF DISPUTES BY INDIVIDUAL ARBITRATION UNLESS YOU OPT-OUT AS PROVIDED IN SECTION 10.
2. Definitions
These are some defined terms that are used in this Agreement. There are other defined terms throughout the Agreement. You can tell if a term is defined if it has quotation marks around it. Except for when we refer to you/your/yours, us/we/ours, or party/parties, defined terms are capitalized when used again in the Agreement.
2.1 “Applicable Law” means any law that applies to you or us in a given circumstance, this includes laws, regulations, court orders, and arbitration determinations and agreements.
2.2 “BAA” means the Business Associate Agreement, if any, entered into between you and us.
2.3 “End User” means each user of the Platform who is a patient or prospective patient of Subscriber or who is using the Platform on behalf of a patient or prospective patient of Subscriber.
2.4 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended.
2.5 “Hoot Content” means the content created or provided by Hoot, including educational materials, marketing materials, forms and agreements, and other materials displayed in the Services or on our Platform, in any form, such as presentations, videos, handouts, checklists, and emails.
2.6 “Hoot Data” means any data (facts, figures, items of information, or statistics) or data compilations aggregated, compiled, copied, created, or derived by us from User Data or the use of our Platform or Services by you, your End Users, or your Subscriber Users, including deidentified PHI.
2.7 “PHI” means Protected Health Information (as defined under the HIPAA rules) that we may receive, create, maintain, use, or disclose in connection with the functions, activities, and services that we perform, as a business associate, for you, as a covered entity.
2.8 “Platform” means the electronic systems, applications, and internet sites of Hoot, including https://www.hootmyopiacare.com/.
2.9 “User Data” means the data (facts, figures, items of information, or statistics) and data compilations you, your End Users, or your Subscriber Users provide to us or otherwise make available to us in connection with your, your End Users’, or your Subscriber Users’ use of the Platform or Services at any time, including personal information and PHI.
2.10 “Subscriber User” means each user that you allow to use the Services on your behalf.
3. Our Intellectual Property Rights
3.1 Our intellectual property rights. Between you and us, we own all right, title, and interest to the Services, Platform, Hoot Content, and Hoot Data (collectively, “Hoot Property”), all components and derivative works of the Hoot Property, and the copyrights, patents, trade secrets, trademarks, and other intellectual property rights pertaining to any aspect of the Hoot Property. We reserve all rights in the Hoot Property not expressly granted to you in this Agreement. You acquire no ownership interest, derivative work, or component of the Hoot Property through your use of it.
3.2 Our licensed and permitted use of your name and likeness in Hoot Content. You may collaborate with us in creating Hoot Content and we may use your name, nickname, image, voice, caricature, endorsement, signature, initials, reputation, autograph, biographical data and/or likeness (collectively, “Likeness”) in Hoot Content, but you acquire no right, title, or interest to any Hoot Content through such collaboration or use of your Likeness. If you provide us with your Likeness in connection with any of the Hoot Content, you grant us a royalty-free, perpetual, irrevocable, transferable, and sublicensable worldwide right and license to use your Likeness in connection with the exploitation, exhibition, display, performance, broadcast, transmission, distribution, transfer, sublicense, sale, export, advertising, and promotion of the Hoot Content in all media, whether now known or hereafter devised, without restriction. Under this subsection, you grant us the right and license to monetize your Likeness in connection with the Hoot Content and you are not entitled to any payments related to our rights and license to your Likeness.
3.3 Our licensed and permitted use of User Data; Our ownership of Hoot Data made from User Data. You grant us a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide right and license to access, store, process, use, copy, record, modify, aggregate, anonymize, deidentify, make compilations of, make derivative works from, translate, disclose, transfer, sublicense, sell, and export User Data; provided that we may only use PHI in compliance with HIPAA and we may not sell PHI without the patient’s separate written authorization. You grant us the right and license to use or disclose PHI to deidentify PHI. PHI that has been deidentified is not PHI and there are no restrictions on our use or sale of deidentified PHI. Under this subsection, you grant us the right and license to monetize the User Data and you are not entitled to any payments related to our rights and license to the User Data. We own all data and data compilations aggregated, compiled, copied, created, or derived by us from User Data or the use of our Platform or Services by you, your End Users, and your Subscriber Users, including deidentified PHI, all of which shall constitute Hoot Data. To the extent that we require further rights, you assign us all right, title, and interest you may have, if any, to the Hoot Data.
3.4 Our rights to Feedback; limits on your use of Feedback. We encourage you to submit feedback to us, including any suggestion, enhancement request, recommendation, correction, or change regarding the Hoot Property (collectively, “Feedback”). If you provide us with Feedback via the Services, the Platform, or any other method, you grant us an exclusive, royalty-free, perpetual, irrevocable, transferable, and sublicensable worldwide right and license to access, store, process, use, copy, record, modify, make derivative works from, translate, display, publicly perform, broadcast, transmit, publish, distribute, disclose, transfer, remove, sublicense, sell, and export Feedback you provide, in any form or medium, without restriction. You are prohibited from reposting, republishing, or redistributing Feedback. We have the right, but do not assume any responsibility to review, screen, or approve Feedback. We have no obligation to keep Feedback confidential, to pay any compensation for Feedback, or to respond to any Feedback. You are solely responsible for the accuracy and legality of any Feedback you make. We take no responsibility and assume no liability for any Feedback posted or transmitted by you or a third party.
4. Your Use of the Services
4.1 Your licensed and permitted use. Subject to the terms of this Agreement, Hoot grants you a non-exclusive, non-transferable, non-sublicensable, and limited license and right to use and access the Services described in any Service Order for your internal business purposes.
4.2 No medical advice. Our Services, Platform, and Hoot Content are for informational purposes only. You acknowledge that we are not a health care provider, licensed or otherwise. You agree that the Services and our provision of any information on the Platform or in the Hoot Content do not constitute the practice of any medical, nursing, or other health care advice, diagnosis or treatment. We do not, directly or indirectly through the Services, the Platform, or the Hoot Content, provide medical advice, practice medicine, dispense medical services, or direct, conduct, or assume responsibility for the medical care of any patient, which at all times remains the responsibility of the Subscriber. YOU AGREE THAT YOU MUST USE YOUR INDEPENDENT PROFESSIONAL MEDICAL JUDGMENT WHEN REVIEWING OR TAKING ACTION REGARDING PATIENTS. We do not recommend or endorse any specific tests, health providers, products, procedures, opinions, or other information that may be mentioned in the Services, on our Platform, or in the Hoot Content. RELIANCE ON ANY INFORMATION PROVIDED IN THE SERVICES, ON THE PLATFORM, OR IN THE HOOT CONTENT IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT YOU ASSUME ALL RESPONSIBILITY FOR YOUR USE OF THE SERVICES, PLATFORM, AND HOOT CONTENT AND FOR ALL DECISIONS TAKEN OR NOT TAKEN BASED ON ANY INFORMATION PROVIDED OR DISPLAYED IN THE SERVICES, PLATFORM, OR HOOT CONTENT. HOOT IS NOT RESPONSIBLE OR LIABLE FOR ANY DIAGNOSIS, DECISION, OR ASSESSMENT MADE BY YOU OR ANY INJURIES AN END USER OR ANY PERSON MAY INCUR AS A RESULT OF DECISIONS BASED ON INFORMATION PROVIDED OR DISPLAYED IN THE SERVICES, PLATFORM, OR HOOT CONTENT.
4.3 Your account and related responsibilities. You are required to create an account with us to access certain features of the Services.
a. Authorized representative. You represent and warrant that the person creating the account is authorized by Subscriber to create the account on behalf of Subscriber.
b. Subscriber Users. You may add Subscriber Users to your account subject to any limitations in this Agreement. You are responsible and liable for each Subscriber User’s access to and use of your account and the Services and for any breach of this Agreement by a Subscriber User. Each Subscriber User is subject to the access and use terms and restrictions contained in this Agreement.
c. Security of your account. You are responsible for the security of your account and your use of the Services, including the access to and use of your account and the Services by each Subscriber User. (a) You are responsible for establishing and maintaining the confidentiality of your account, your account access credentials (for example, username and password), and the information submitted via your account or otherwise in connection with your use or any Subscriber User’s use of the Services. You agree to use commercially reasonable and prudent efforts to prevent unauthorized access to or use of your account or the Services. (b) Each Subscriber User must have unique access credentials. Subscriber Users may not share access credentials. (c) The Services are only available to you and your authorized Subscriber Users; you will not allow any other person to access or use your account or the Services. (d) You will notify us immediately of any unauthorized access to or use of your account or the Services. We have no liability to you for any unauthorized access of your account or the Services caused by your acts, omissions, or breach of this Agreement.
d. Backups. You are solely responsible for backing up your User Data on a regular basis and taking appropriate steps to safeguard and ensure the integrity of your User Data. We will not be responsible for any backup, recovery, or other steps to ensure User Data is recoverable in the event of a data loss. We expressly disclaim any obligations with respect to storage of User Data.
4.4 Your User Data and related responsibilities. You are solely responsible and liable for User Data, including the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Data you, your Subscriber Users, and your End Users provide or make available to us. We do not assume any responsibility to review, screen, or approve User Data.
4.5 Your communications with End Users. You are solely responsible and liable for all communications with End Users through the Services and Platform, including by telephone, text, fax, or email. You represent and warrant that all of your communications with End Users through the Services and Platform are in compliance with Applicable Law and you have obtained any necessary consents and authorizations for such communications.
4.6 Your compliance with law. You are solely responsible and liable for compliance with all Applicable Law related to your use of the Services. You agree to provide reasonable cooperation regarding requests from law enforcement or other governmental authorities.
4.7 Restrictions on your use of the Services.
a. Minimum age. You must be 18 years of age or older to create an account or use the Services.
b. Prohibited Use of the Services. You, each Subscriber User, and each End User will not do any of the following, collectively “Prohibited Use”: (a) decompile, disassemble, or reverse engineer the Services or the Platform, or attempt to obtain or perceive the source code from which any component of the Services or the Platform are compiled or interpreted, and you acknowledge that nothing in this Agreement will be construed to grant you any right to obtain or use such code; (b) duplicate or create any derivative product from the Services or any component of the Services; (c) license, sublicense, lease, resell, or transfer the Services to a third party or allow third parties (other than Subscriber Users or End Users as permitted herein) to gain access to the Services; (d) access the Services if you are a director competitor of us, or access the Services for a competitive purpose; (e) remove any copyright, trademark, or other proprietary notions from the Services; (f) transmit material containing viruses, malware, or other harmful or deleterious computer code, files, scripts, agents, or programs; (g) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (h) attempt to bypass, exploit, defeat, or disable limitations or restrictions placed on the Services; (i) conduct any denial of service (DoS) attack on the Services or otherwise attempt to disrupt, disable, or overload the Services; (j) attempt to gain access to the Services by automated means, such as bots; (k) attempt to gain unauthorized access to the Services, computer systems, or networks related to the Services; (l) create a false identity or attempt to mislead others as to the identity of the sender or the origin of any data or communications; (m) use the Services to violate any Applicable Law; or (n) interfere with another user’s use and enjoyment of the Services.
c. Export restrictions. This Agreement is expressly made subject to any Applicable Law regarding import, re-import, sanctions, anti-boycott, export, and re-export control, such as the US Export Administration Regulations, the US International Traffic in Arms Regulations, and economic sanctions programs implemented by the US Office of Foreign Assets Control (“Trade Restrictions”). You agree that you are solely responsible for compliance with Trade Restrictions related to the manner in which you use the Services, including your transfer and processing of User Data, the provision of Hoot Content to Users, and the location in which any of the foregoing occur. This obligation survives the termination or expiration of this Agreement.
4.8 Suspension of your account; removal of User Data. We may suspend your account, suspend your or any Subscriber User’s or End User’s access to the Services or Platform, or remove any User Data, immediately if we, in good faith, believe: (a) that you or any Subscriber User or End User has materially breached any provision of this Agreement or the End User Terms of Use; (b) that you or any Subscriber User or End User is using the Services or Platform in a manner that threatens the security, integrity, or reliability of the Services or Platform; (c) that there has been unauthorized access or fraud related to your account, an End User’s account, the Services, or the Platform; (d) that information in your account, an End User’s account, or provided in connection with the Services or Platform is untrue or inaccurate; or (e) that the provision of the Services, the Platform (or a portion thereof) will expose us or you to legal, regulatory, or compliance risk.
4.9 Changes to the Services. You acknowledge that the features and functions of the Services may be updated or otherwise be subject to change. We will not materially decrease the overall functionality of the Services you order.
4.10 Beta versions. We may make beta versions or features of the Services available to you, which you may use in your sole discretion. Beta versions may contain bugs, errors, and other problems that could cause system or other failures and data loss. We may discontinue beta versions and features at any time and decide not to make them generally available.
5. Fees, Payment, and Subscription Terms
5.1 Fees. You agree to pay the fees for the Services stated in the applicable Service Order and all additional fees and charges incurred during your use of the Services, such as set-up fees, payment processor fees, and professional services fees.
5.2 Taxes. The fees stated in a Service Order are exclusive of taxes. You agree to pay all sales, use, and other taxes and fees imposed by governmental authorities on our provision of the Services to you (other than taxes based on our net income).
5.3 Payments. Fees, taxes, and other charges will be invoiced in US dollars. Payments are due in advance on the date, or recurring interval dates stated in a Service Order. Payments are non-refundable. Late payments will bear interest at the lesser of (i) 1.5% per month calculated and compounded monthly or (ii) the highest rate permissible under Applicable Law, except for payments that are properly disputed. If we process your payments using a third-party payment processor, such payments will be governed by the third-party payment processor’s terms of use and privacy policy.
5.4 Subscription auto-renewal; non-cancellable. Unless otherwise stated in the applicable Service Order, the initial service term is 1 year (“Initial Service Term”), which will automatically renew for successive 1-year periods (each a “Renewal Service Term”) on the anniversary of the Initial Service Term start date unless and until one party gives written notice to the other party of its election not to renew at least 30 days prior to the end of the Initial Service Term or Renewal Service Term, as applicable. The fees for each Renewal Service Term will be the then-standard fees charged by us for the Services. Subscriptions cannot be cancelled prior to the end of a service term (whether the Initial Service Term or a Renewal Service Term). Cancellation requests made more than 30 days before the end of a service term are effective on the last day of such service term and you are required to pay all amounts due through the end of the service term regardless of whether you continue to use the Services. Subscription fees are non-refundable.
5.5 Invoice or payment disputes. You must notify us within 60 days of the date of your invoice (or payment if no invoice is issued) if you dispute any fees, taxes, or other charges in such invoice or payment. Unless otherwise required by Applicable Law, you cannot dispute an invoice or payment more than 60 days after the date of the applicable invoice (or payment if no invoice is issued).
6. Personal Information
6.1 Personal information. You agree that we may use, disclose, and maintain personal information according to Hoot’s Privacy Policy and any changes to the policy published by us (“Privacy Policy”). You represent and warrant that you have complied with all Applicable Law and received the proper authority or consent to allow us to collect and process personal information from you, your Subscriber Users, and your End Users to provide the Services and operate our business.
6.2 Parent or guardian consent to collection and use of children’s personal information. We do not collect any personal information directly from children. You represent and warrant that you have complied with all Applicable Law and received the proper authority or consent, including from parents or guardians, to allow us to collect and process personal information of children from you, your Subscriber Users, and your End Users to provide the Services and operate our business.
6.3 Consent to collect and use PHI. You agree that we may collect and use PHI as provided in the BAA. You represent and warrant that you have complied with all Applicable Law and received the proper authority or consent to allow us to collect and process PHI from you, your Subscriber Users, and your End Users to provide the Services and operate our business.
6.4 Anonymized and deidentified data. You understand and agree that anonymized or deidentified data is not personal information and deidentified PHI is not PHI, and restrictions on our use of personal information or PHI contained in our Privacy Policy or the BAA do not apply to such anonymized or deidentified data even if such data was created or derived from personal information or PHI.
6.5 End User requests and notices. You are responsible for compliance with Applicable Law related to personal information and PHI, including responding to End User requests under such Applicable Law (“Requests”) and providing End Users with required notifications, including notifications of breach. If we receive a Request, we will inform you of the Request and inform the End User to make the Request directly to you. To the extent we assist you with your compliance obligations under Applicable Law related to personal information and PHI, you shall pay or reimburse us for any time spent by us for such assistance at our then-standard or other reasonable professional services rate and any out-of-pocket costs reasonably incurred.
7. Representations, Warranties, and Disclaimer
7.1 Your additional representations and warranties. By entering into this Agreement, you make representations and warranties to us. Some of your representations and warranties are contained in this Section and some are contained in other Sections of this Agreement (including Sections 4 and 6).
a. Valid agreement. You represent and warrant that you have validly accepted or entered into this Agreement and have the legal power to do so.
b. User Data. You represent and warrant that you have all rights necessary to grant all rights and licenses to the User Data granted to us in this Agreement. You further represent and warrant: (i) the User Data is accurate and complete; (ii) you have obtained the User Data lawfully and the User Data does not and will not violate any Applicable Law or any third party’s rights, including privacy rights and intellectual property rights; (iii) you have complied with all Applicable Law, provided all applicable notices, and received the proper authority or consent to allow us to collect and use User Data as provided in this Agreement; (iv) we may exercise our rights in User Data granted in this Agreement without liability or cost to any third party; and (v) the User Data complies with the terms of this Agreement.
c. No Sanctions Lists. You represent and warrant that you and your Subscriber Users are not on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list or export-controlled related restricted party list (collectively, “Sanctions Lists”). If you, any Subscriber User, or any End User becomes placed on any Sanctions List, you will notify us immediately and discontinue the use of the Services by you, your Subscriber User, or your End User as applicable.
7.2 Hoot’s representations and warranties. We represent and warrant that we have validly accepted or entered into this Agreement and have the legal power to do so. We represent and warrant that we have all rights necessary to grant all rights and licenses to the Services granted to you in this Agreement, subject to the terms of this Agreement.
7.3 DISCLAIMER OF WARRANTIES. Except as expressly warranted in this Agreement and to the fullest extent permitted by Applicable Law, the Services, the Platform, the Hoot Content, and any other materials, data, software, products, and services provided under this Agreement or on the Platform are provided “AS IS,” “AS AVAILABLE,” and “WITH ALL FAULTS,” and we expressly disclaim all other warranties of any kind or nature, whether express, implied, or statutory. We expressly disclaim any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. We expressly disclaim any warranties of system integration, non-interference, absence of any defects (whether latent or patent), or security of data. We do not warrant or make any representations concerning the accuracy, completeness, or usability of the Hoot Content or any other information or materials provided in connection with our Services, found on our Platform, or linked to our Platform. We expressly disclaim any warranty related to third-party websites or other third-party content that may be accessed through our Services or our Platform. We make no warranty or representation on the basis of trade usage, course of dealing, or course of performance. We do not warrant or represent that the Services, the Platform, the Hoot Content, or any other materials, data, software, products, or services provided under this Agreement or on the Platform will meet your requirements, comply with Applicable Law, generate enforceable obligations, or that the operation of them will be uninterrupted or error-free, or that all errors will be corrected. You acknowledge that our obligations under this Agreement are for the benefit of Subscriber only. The Services, the Platform, and the Hoot Content may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. We are not responsible for any delays, delivery failures, or other damages resulting from such problems.
8. Indemnification
8.1 Your indemnification of Hoot. You agree to defend, indemnify, and hold us, our affiliates, and our third-party providers, licensors, and suppliers, along with our and their respective directors, officers, employees, and agents, harmless from any claims, damages, losses, or costs (including reasonable attorneys’ fees and expenses) arising out of the use of the Services, breach of this Agreement, or violation of any Applicable Law or the rights of any third party by you, any Subscriber User, any End User, or any person you provide access to the Services.
9. Limitations of Liability
9.1 WE HAVE NO LIABILITY FOR CERTAIN TYPES OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO LIMIT CLAIMS FOR DAMAGES (OR OTHER MONETARY RELIEF) AGAINST US TO DIRECT AND ACTUAL DAMAGES REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE. THIS MEANS THAT YOU WILL NOT SEEK ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM US. WE HAVE NO LIABILITY FOR DAMAGES FOR: (a) unauthorized access to, loss, or theft of your account, information, or data or that of your Subscriber Users or End Users; (b) lost profits, costs of delay, failure of delivery, or business interruption; (c) costs of procurement of substitute goods, services, or technology; or (d) personal injury or death. We have no liabilities to third parties arising from any source. These limitations apply regardless of the cause of the damages, including negligence by us or our third-party providers, licensors, or suppliers. These limitations apply even if we have been advised of the possibility of such damages. These limitations apply without regard to whether other provisions of this Agreement have been breached or proven ineffective. These limitations also apply to any claims you may bring against any third party to the extent that we would be required to indemnify that third party for such claim.
9.2 WE ARE NOT LIABLE FOR DAMAGES OUT OF OUR CONTROL. You agree that we are not liable for delays, problems, or damages caused by you or a third party, by any act of nature, by any act beyond our reasonable control (for example, war, terrorist acts, labor disputes, government actions, pandemics), or by any criminal activity by someone unrelated to us.
9.3 YOU AGREE TO LIMIT THE AMOUNT OF DAMAGES PAYABLE BY US. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF HOOT, OUR AFFILIATES, AND OUR THIRD-PARTY PROVIDERS, LICENSORS, OR SUPPLIERS ARISING OR RELATING TO THIS AGREEMENT IS LIMITED TO THE FEES THAT YOU PAID TO USE THE RELEVANT SERVICES IN THE 12 MONTHS BEFORE OUR BREACH OR THE FIRST INCIDENT GIVING RISE TO OUR LIABILITY; OR, IF NO FEES WERE PAID IN SUCH PERIOD, $100.
9.4 YOU AND WE AGREE TO LIMIT THE DEADLINE TO BRING CLAIMS. To the fullest extent permitted by Applicable Law, you and we each agree that all claims related to this Agreement must be brought within 2 years of the date the claim arises (even if Applicable Law provides for a longer statute of limitations).
9.5 YOU AND WE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY. The limitations of liability in this Section 9 constitute an important part of this Agreement and are among the reasons you and we are willing to enter into this Agreement. Without these limitations of liability, the provisions of this Agreement, including the economic terms, would be substantially different.
10. Disputes
10.1 Summary of dispute resolution procedures. By entering into this Agreement, you are agreeing to resolve any dispute with us informally, and, if it cannot be resolved informally, through binding arbitration or small claims court (unless you opt out) and to waive your rights to participate in any class action suit (unless you opt out) or to a jury trial.
10.2 Good faith negotiation of disputes. For any and all disputes or claims you have, you must first give us an opportunity to resolve your claim by sending a written description of your claim to support@ hootmyopiacare.com. You and we each agree to negotiate your claim in good faith. You agree that you may not commence any arbitration or court proceeding unless you and we are unable to resolve the claim within 60 days after we receive your claim description and you have made a good faith effort to resolve your claim directly with us during that time.
10.3 Binding arbitration and small claims court. YOU AND WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, THE BAA, OR OUR SERVICES, INCLUDING ANY BILLING DISPUTES, WILL BE RESOLVED BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT. This includes any claims against other parties relating to the Services provided or billed to you (such as our third-party providers, licensors, and suppliers) whenever you also assert claims against us in the same proceeding. You and we each also agree that this Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law, not state law, apply and govern the enforceability of this dispute resolution provision (despite the general choice of law provision set forth below). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).
10.4 Your choice to opt-out of arbitration. Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE YOU ENTERED INTO YOUR SERVICE ORDER (the “Opt Out Deadline”). You must opt out by the Opt Out Deadline for each Service Order. You may opt out of these arbitration procedures by sending an email to support@ hootmyopiacare.com and clearly stating that you wish to opt out of the arbitration procedures in the Agreement. Any opt-out received after the Opt Out Deadline will not be valid and you will be required to pursue your claim in arbitration or small claims court.
10.5 Arbitration and small claims court procedures. If we are unable to resolve your claim within 60 days despite those good faith efforts, then either you or we may start arbitration or small claims court proceedings. To begin arbitration, you must send a written letter requesting arbitration and describing your claim to our registered agent at Hoot Health, Inc., 3495 US Highway 1 STE 34 #1126, Princeton, NJ 08540 and to the American Arbitration Association (“AAA”). You may download or copy a form of notice and a form to initiate arbitration at www.adr.org or by calling 1-800-778-7879. The arbitration of all disputes will be administered by the AAA under its Commercial Arbitration Rules in effect at the time the arbitration is commenced, except to the extent any of those rules conflicts with this Agreement, in which case this Agreement will govern. The AAA rules are available at www.adr.org. If the claims asserted in any request or demand for arbitration could have been brought in small claims court, then either you or we may elect to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that election in writing. The arbitration of all disputes will be conducted by a single arbitrator, who will be selected using the following procedure: (a) the AAA will send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party will return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA will appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. Payment of all filing, administration, and arbitrator fees will be governed by the AAA rules. If you initiate the arbitration, you are required to pay AAA’s initial filing fee. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs. If we are the prevailing party, we may seek reimbursement of reasonable attorneys’ fees and costs in arbitration unless prohibited under Applicable Law.
10.6. Class action waiver. YOU AND WE EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS, REPRESENTATIVE, MASS, OR CONSOLIDATED ACTION. If we believe that any claim you have filed in arbitration or in court is inconsistent with this limitation, then you agree that we may seek an order from a court determining whether your claim is within the scope of this class action waiver. If a court or arbitrator determines in an action between you and us that any part of this class action waiver is unenforceable with respect to any claim, this class action waiver will not apply to that claim, but will still apply to any and all other claims that you or we may assert in that or any other action.
10.7 Your choice to opt-out of the class action waiver. Notwithstanding the above, YOU MAY OPT-OUT OF THE CLASS ACTION WAIVER BEFORE THE OPT OUT DEADLINE STATED IN SECTION 10.4 ABOVE. You must opt out by the Opt Out Deadline for each Service Order. You may opt out of the class action waiver by sending an email to support@ hootmyopiacare.com and clearly stating that you wish to opt out of the class action waiver in the Agreement. Any opt-out received after the Opt Out Deadline will not be valid and you will be prohibited from pursuing your claim via a class action. You cannot be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with these opt out requirements.
10.8 Injunctive relief. You and we acknowledge and agree that a breach by you of your responsibilities under Sections 4, 6, or 7, could cause us irreparable harm for which monetary damages would not be an adequate remedy. You and we agree that, in the event of such breach or threatened breach, we will be entitled to equitable relief, including, without limitation, a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. The binding arbitration provision of Section 10.3 shall not apply to requests for injunctive relief under this Section 10.8, which may be brought in arbitration or court proceedings. These remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
10.9 Jury trial waiver. If a claim proceeds in court rather than through arbitration, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
11. Term, Termination, and Survival
11.1 Term. This Agreement will commence on the date you enter into a Service Order and continue until terminated in accordance with Section 11.2.
11.2 Termination.
a. Termination at end of Service Order. This Agreement will terminate upon the expiration, cancellation, or termination of all outstanding Service Orders. See Section 5.4 regarding the automatic renewal and non-cancellability of subscriptions for the Services.
b. Termination for material breach. You or we may terminate this Agreement (including all Service Orders that are in effect) in the event the other party commits any material breach (including non-payment) of this Agreement and fails to remedy such breach within 30 days after receiving written notice of such breach.
c. Termination for insolvency. Subject to Applicable Law, you or we may terminate this Agreement immediately by providing written notice to the other party in the event of the other party’s dissolution, liquidation, assignment for the benefit of creditors, or commencement of proceedings (voluntary or involuntary) for receivership or bankruptcy.
d. Suspension of access. We may suspend your access, a Subscriber User’s access, or End User’s access to the Services if permitted by another provision of this Agreement. We may not be required to give any notice to you to suspend access under such other provisions.
11.3 Effect of Termination. Upon termination of this Agreement, you and each Subscriber User and End User will immediately discontinue access to and use of the Services and you will promptly pay all outstanding amounts due. Upon termination, we have no obligation to maintain or provide access to any User Data and we have the right to delete all information and data related to your account and use of the Services and the Platform, including the User Data, immediately upon termination and will incur no liability for such deletion. Additionally, you may request that we delete all User Data upon the termination of this Agreement and certify in writing that such User Data has been deleted. If you request a copy of your User Data, we may honor or refuse your request in our sole discretion and may charge a fee to provide you with a copy of your User Data. Notwithstanding anything herein to the contrary, we may retain a copy of the User Data and the other information and data related to your account, as is reasonably necessary for our record retention, as required by Applicable Law, legal process, or governmental request, or to enforce or defend our rights or carry out our obligations, subject to any restrictions on use of such User Data in this Agreement and the BAA.
11.4 Survival. All provisions of this Agreement that are intended to survive or that must survive in order to give effect to its meaning (including, but not limited to, the provisions of Sections 3, 6, 7, 8, 9, 10, 11, and 12) will survive the termination or expiration of this Agreement.
12. General
12.1 Choice of law. This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of New Jersey, without regard to the conflicts of laws rules. Foreign laws do not apply. Arbitration or court proceedings must be brought in New Jersey.
12.2 Notices. You may deliver notices to us by email to support@ hootmyopiacare.com or by postal mail to Hoot Health, Inc., 3495 US Highway 1 STE 34 #1126, Princeton, NJ 08540. If you are commencing an arbitration or legal proceeding against us, you must send notice of the arbitration or legal proceeding to our registered agent at Hoot Health, Inc., 3495 US Highway 1 STE 34 #1126, Princeton, NJ 08540. We may deliver notices to you via email, mail, or electronic means using the contact information on your Service Order or in your account or by posting the notice on the Platform. Electronic notices are considered delivered when sent or posted. Postal notices are considered delivered 3 days after mailing. Notices delivered by a nationally recognized courier (for example, UPS and FedEx) are considered delivered when received.
12.3 E-Sign Consent. We may need to provide you with certain communications, notices, agreements, billing statements, or disclosures (“Communications”) in writing regarding the Services. You agree and consent to receive Communications electronically from Hoot, our affiliates, and our third-party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (“E-Sign Consent”). You also acknowledge and agree that you have the ability to receive Communications electronically. You may withdraw your consent to receive Communications electronically at any time by sending us notice at the email or postal address in the Notice Section 12.2 above. If you choose to withdraw your consent, we may terminate your access to the Services.
12.4 Platform materials. The information and materials on our Platform, including the Hoot Content, may contain technical, typographical, photographic, or other errors. We do not warrant that the Hoot Content or any information or materials on our Platform are accurate, complete, or current. We may make changes to the Hoot Content and information and materials on our Platform at any time without notice, but we make no commitment to do so
12.5 Third-Party connections. The Services may include integrations, links, or connections to third-party websites, applications, or services. This inclusion does not imply review or endorsement by us; you proceed at your own risk to a third-party website, application, or service. We do not warrant, and are not responsible for, the services, products, statements, or claims made by or about a third party, or the actions or omissions of any third-party. You must review and comply with any third-party terms of service or other provisions.
12.6 Third-Party beneficiaries. Our third-party providers, licensors, and suppliers and our affiliates are considered to be third-party beneficiaries of this Agreement solely to the extent necessary for them to enforce any protections afforded them by this Agreement, except as otherwise provided in this Agreement. There are no other third-party beneficiaries to this Agreement. All rights and benefits of this Agreement from us are intended solely for Subscriber as the original purchaser of the Services.
12.7 Independent Contractors. You and we agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship, or franchise between the parties. You and we are acting as independent contractors in making and forming this Agreement.
12.8 Assignment. You and we are prohibited from assigning this agreement to a third party without the prior written consent of the other party to this Agreement except as provided in the next sentence. You and we may assign this Agreement in its entirety (including all Service Orders), without the consent of the other party, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of substantially of all assets. Any permitted assignment will not relieve the assigning party of its obligations under this Agreement unless agreed in writing by the other party. Subject to the foregoing restrictions on assignment, this Agreement will bind and inure to the benefit of your and our respective successors and permitted assigns.
12.9 Amendment. We have the sole discretion to change this Agreement or make changes regarding any aspect of the Services, except as otherwise provided in this Agreement. If this occurs, we will provide you with notice via any means we consider reasonable, including, without limitation, email, posting on our Platform, or updates to the Services. After we provide notice, your continued use of the Services constitutes your acceptance of the changes and the Agreement as amended.
12.10 Waiver. You and we cannot waive any provision of this Agreement except in a writing signed by you and us. Our failure to insist on or enforce strict performance of any provision of this Agreement or any of our rights is not a waiver of any provision or right.
12.11 Severability. If any part of this Agreement is held invalid or unenforceable, that part may be severed from the Agreement to the minimum extent necessary to cure such invalidity or unenforceability. The remainder of the Agreement will remain valid and enforceable.
12.12 Entire Agreement. This Agreement is the entire agreement between you and us regarding the rights you have with respect to the Services, except as provided by Applicable Law, and you cannot rely on any other documents, statements on our Platform, or statements by any of our representatives or agents.
