BY ACCESSING, USING THE SOFTWARE AND/OR SIGNIFYING YOUR ACCEPTANCE TO THESE TERMS OF SERVICE, YOU AGREE TO THE TERMS OF THIS ELECTRONIC AGREEMENT ON YOUR OWN BEHALF AND ON BEHALF OF THE ACCOUNT HOLDER LISTED IN THE ACCOUNT CREATION, SIGN UP OR SIMILAR FORM ("REGISTRATION FORM"). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE ENTITY THAT YOU WORK FOR AND YOURSELF TO THESE TERMS OF SERVICES. IF YOU DO NOT AGREE TO THESE TERMS AND DO NOT HAVE THE AUTHORITY AS PROVIDED HEREIN, DO NOT, ACCESS, OR USE THE SERVICES (AS DEFINED IN THE TERMS OF SERVICES).
These Terms of Service ("Agreement" or "Terms & Conditions" or "Terms of Service") are a contract between you individually, the legal entity that you practice under (individually and collectively, "you" or "your") and Butlr Health Inc. ("Butlr Health" or "Us" or "We") and govern your use of Butlr Health’s website (www.butlrhealth.com, app.butlrhealth.com and any affiliated sub-domains and mobile applications and sites), Software, and Servers (hereinafter collectively the "Service"), your rights and obligations with respect to User Data that you place in the Service, and associated Intellectual Property Rights thereto, as well as your creation of an account by which you will access the Service, (hereinafter an "Account") for use in connection with the Service. By accessing, using, subscribing, purchasing, or downloading the Services, or any goods, materials, or content from the Website, you agree to follow and be bound by the following terms and conditions and any other terms and conditions embodied in any other agreements you enter into with us. If you do not agree with the Terms & Conditions, you may not use the Website or the Services.
NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH US. PLEASE READ IT CAREFULLY.
These Terms of Service apply to ALL transactions made on or through the Website and which uses the Services. This Agreement is governed by the Electronic Signatures in Global and National Commerce Act. You and the account owner manifest your agreement to these Terms of Service by any act demonstrating your assent thereto, including clicking any button containing the words "I agree", "Sign up", "Start now", "Create my account" or similar syntax, by accessing the Website, by establishing an account, or using the Services, whether you have read these terms or not. On clicking any such button you agree to these Terms of Service. You should print a copy of this Agreement for your personal records. This Agreement may be modified by Butlr Health effective immediately by notifying you as provided in Section 30 below. By continuing to access or use the Service after the effective date of any such change, you agree to be bound by the modified Terms of Service.
By accepting this Agreement in connection with an Account, you represent that you are at least 18 years of age, or the legal age of majority where you reside if that jurisdiction has an older age of majority, and you have the legal authority to enter into this Agreement. You further agree that as a condition to accessing the Website and the Service, you will submit to account verification as required by Butlr Health, and provide only true and accurate identification documentation to Butlr Health or its third party service providers as requested by Butlr Health. You and the account owner are responsible for the security of any account verification information, such as usernames and passwords.
You must establish an Account with Butlr Health to use the Service. Only one person may be an Account Owner, who can grant access to the account to other account users who are employed by or are contracted to your practice. You agree to provide accurate, current, and complete information about yourself (“Registration Data”) as prompted by the Account Set Up Forms and to use the account settings tools provided to keep your Registration Data accurate, current and complete. Butlr Health will assign to You, as account owner, an account name (your “Account Name”).
You, as the account owner, are responsible for all activities conducted through your Account. You, as an account user. In the event that fraud, violation of law, regulation or rule, or conduct that violates this Agreement occurs (whether by you or someone else) that is in any way, connected with your Account, we may suspend or terminate your use and your Account as described in Section 21 and you shall be financially responsible to Butlr Health for the consequences of such use.
At the time your Account is created, you must select a password. You are responsible for maintaining the confidentiality of your password and are responsible for any damages, claims or other harm resulting from your disclosure, or authorization of the disclosure of your password or from any person’s use of your password to gain access to your Account or Account Name. At no time should you respond to an online request for a password other than in connection with the log-on process to the Service. Your disclosure of your password to any other person is at your own risk.
Butlr Health provides the Service for the fees and other charges set forth on our Website. We may at any time add new services for additional fees and charges, or prospectively modify fees and charges for existing services. You acknowledge that it is your responsibility to ensure payment in advance for all paid aspects of the Service, and to ensure that your credit or debit cards or other payment instruments accepted by Butlr Health continue to be valid and sufficient for such purposes. We may suspend or terminate your use and your Accounts use, as provided in Section 20 in the event of any payment delinquency. Other services are available from Butlr Health and the agreement with respect to those services and fees due to Butlr Health incorporate by reference these Terms of Service as well as any specific terms and conditions presented to you.
Butlr Health reserves the right to add, modify, or eliminate aspect(s), features or functionality of the Service from time to time for the purposes of compliance with applicable laws and regulations, to effect improvements in security and functionality, to correct errors, or for any other purposes, at its discretion.
In the event of termination of this Agreement, whether by your cancellation of the Agreement, your breach of, or as otherwise provided in this Agreement, there is an export feature in the Service which will enable you to retrieve your User Data contained within the Service prior to the account termination date. It is your responsibility to export from your account a file or files containing the User Data contained within the Service before the account termination date, after which Butlr Health will destroy the User Data for your account.
In connection with User Data you upload or submit to the Service, you affirm, represent, and warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize Butlr Health to use the User Data in the manner contemplated by the Service and this Agreement. You agree that by uploading or submitting any Content to or through the Servers, Website, or other areas of the Service, and permitting your clients to upload any Transaction Data into the Service, you hereby automatically grant Butlr Health (and its affiliates) a non-exclusive, worldwide, royalty-free, sublicenseable, and transferable license to use, reproduce, distribute, prepare derivative works of, and display the User Data and Transaction Data (including User Data and Transaction Data that is created, collected or generated by the Service or Butlr Health using the User Data and Transaction Data you submit) solely for the purposes of providing the Service. You agree that the license includes the right to copy, analyze and use any of your User Data and Transaction Data as Butlr Health may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section is referred to as the “Service Data License.” You also acknowledge that the Service Data License granted to Butlr Health with respect to your Content will survive the termination of your Account to permit Butlr Health: (i) to retain server copies of particular instances of your User Data, including copies stored in connection with back-up, debugging, and testing procedures; and (ii) to enable the exercise of the licenses granted in this Section for any other copies or instances of the same User Data that you have not specifically deleted from the Service. Notwithstanding anything to the contrary herein, or in any payment processing agreement between you and the payment processor, you also hereby provide Butlr Health (and its affiliates) an irrevocable perpetual license, authority, license and permission to obtain, copy, use, at Butlr Health’s request, without notice to you, from payment processors, banks, card and ACH processors and gateway provider, which support the Service, all of your Transaction Data and User Data for purpose of providing you the Service.
In order to use Stripe® Payment Processing Services, you must agree to the Stripe Connected Account Agreement (https://stripe.com/us/connect-account/legal) that is available to you when you enroll in the Service and afterward through the Service. No transactions will occur in your Butlr Health account until you click to agree to the Stripe Services Agreement or the Stripe Connected Account Agreement (as applicable). In addition to other terms and conditions herein as it relates to your clients’ payments to you, you hereby agree that:
“Stripe” is a registered trademark of Stripe, Inc.
Butlr Health may on occasion need to interrupt the Service, with or without prior notice, to protect the integrity or functionality of the Service or for maintenance purposes. You agree that Butlr Health will not be liable for any interruption of the Service (whether intentional or not), and you understand that you will not be entitled to any refunds of fees or other compensation for interruption of service. Likewise, you agree that in the event of loss of any User Data, we will not be liable for any purported damage or harm arising therefrom.
Butlr Health owns Intellectual Property Rights in and to the Service and and to the Site, except all User Data, including the Butlr Health Software, the Websites, and the Servers, and in and to our trademarks, service marks, trade names, logos, domain names, taglines, and trade dress (collectively, the “Butlr Health Marks”). You understand that such Intellectual Property Rights are apart from any rights you may have in User Data you upload or submit to the Service, as discussed above. You acknowledge and agree that Butlr Health and its licensors own all right, title, and interest in and to the Service, including all Intellectual Property Rights therein, other than with respect to User Data. Except as expressly granted in this Agreement, all rights, title, and interest in and to the Service, except all User Data, and in and to the Butlr Health Marks are reserved by Butlr Health. Copyright, trademark and other laws of the United States and foreign countries protect the Service and the Butlr Health Marks.
You may choose to or we may invite you to submit comments or ideas about the Site, including without limitation about how to improve the Site or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Butlr Health under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Butlr Health does not waive any rights to use similar or related ideas previously known to Butlr Health, or developed by its employees, or obtained from sources other than you.
Butlr Health hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited, revocable license to access and use the Service as set forth in these Terms of Service and expressly conditioned upon your Account remaining active, in good standing, and in full compliance with these Terms of Service. You agree that you will not (i) allow any person or entity not authorized by Butlr Health to use or access the Software, (ii) attempt to copy any ideas, features, functions or graphics contained in the Service; (iii) use the Butlr Health Software in the operation of a service bureau, an application service provider or for any other purpose intended to benefit a party other than you, (iv) alter or modify the Butlr Health Software, (v) sell, assign, sublicense, rent, lease or otherwise transfer the Butlr Health Software or any rights in connection therewith, or (vi) attempt to translate, disassemble, decompile, reverse assemble, reverse engineer all or any part of the Service or otherwise attempt to derive the source code for the Software.
You agree that you will not upload, publish, or submit to any part of the Service any User Data that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless you are the owner of such rights or have permission from the rightful owner to upload or submit the User Data and to grant Butlr Health all of the license rights granted in this Agreement. You agree that Butlr Health will have no liability for, and you agree to defend, indemnify, and hold Butlr Health harmless for, any claims, losses or damages arising out of or in connection with your use of any User Data.
You agree that you will not:
Any violation by you of the terms of this Section may result in immediate suspension or termination of your Account without any refund or other compensation.
You agree not to hold Butlr Health liable for the Content, actions, or inactions of other users of the Service or of other third parties. As a condition of access to the Service, you release Butlr Health (and its officers, directors, shareholders, agents, subsidiaries, and employees) from claims, demands, losses, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have or claim to have with one or more other users of the Service or with other third parties, including whether or not Butlr Health becomes involved in any resolution or attempted resolution of the dispute. If you are a California resident, you waive 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.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Butlr Health WARRANTS THAT DURING THE TERM OF THIS AGREEMENT, THE SOFTWARE WILL FUNCTION IN SUBSTANTIAL CONFORMANCE TO THE SPECIFICATIONS SET FORTH ON THE WEBSITE. Butlr Health PROVIDES THE SERVICE, INCLUDING WITHOUT LIMITATION THE SOFTWARE, THE WEBSITES, THE SERVERS, AND YOUR ACCOUNT, STRICTLY ON AN “AS IS” BASIS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO VALUE, EITHER EXPRESS OR IMPLIED, IS GUARANTEED OR WARRANTED WITH RESPECT TO ANY CONTENT. NOTWITHSTANDING ANY INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE IN YOUR USER DATA OR ANY EXPENDITURE ON YOUR PART, Butlr Health AND YOU EXPRESSLY DISCLAIM ANY COMPENSABLE VALUE RELATING TO OR ATTRIBUTABLE TO ANY DATA RELATING TO YOUR ACCOUNT RESIDING ON Butlr Health’ SERVERS. YOU ASSUME ALL RISK OF LOSS FROM USING THE SERVICE ON THIS BASIS. Butlr Health does not ensure continuous, error-free, secure or virus-free operation of the Service, the Software, the Websites, the Servers, or your Account, and you understand that you shall not be entitled to refunds or other compensation based on Butlr Health’s failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you. Butlr Health does not guarantee that by mere use of the Software you will be in compliance with HIPAA, and you understand and agree that you are responsible for maintaining any other administrative, technical and physical measures required to maintain appropriate information security with respect to your PHI and to otherwise comply with HIPAA.
IN NO EVENT SHALL Butlr Health OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, SUBSIDIARIES, AGENTS OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE OR EXEMPLARY DAMAGES OR DISGORGEMENT OR COMPARABLE EQUITABLE REMEDY, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE (INCLUDING ITS MODIFICATION OR TERMINATION), THE Butlr Health SOFTWARE, THE WEBSITES, THE SERVERS, YOUR ACCOUNT (INCLUDING ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT Butlr Health MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL Butlr Health’S CUMULATIVE LIABILITY TO YOU EXCEED THE GREATER OF ONE HUNDRED FIFTY DOLLARS (U.S. $150.00). Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is found to be impermissible, such limitation may not apply to you.
At Butlr Health’s request, you agree to defend, indemnify and hold harmless Butlr Health, its officers, directors, shareholders, employees, subsidiaries, and agents from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from: (i) any breach or alleged breach by you of these Terms of Service, including without limitation your representations and warranties relating to your data, User Data; (ii) use of the Butlr Health Telehealth Service, or (iii) your acts, omissions or use of the Service, including without limitation your negligent, willful or illegal conduct. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
You acknowledge that your participation in the Service, including your creation or uploading of Content in the Service, does not make you a Butlr Health employee and that you do not expect to be, and will not be, compensated by Butlr Health for such activities, and you will make no claim inconsistent with these acknowledgements. In addition, no agency, partnership, joint venture, franchise relationship is intended or created by this Agreement. There are no third party beneficiaries, intended or implied, under this Agreement.
You may terminate this Agreement by closing your Account at any time for any reason. Subject to Butlr Health’s obligations pursuant to Section 8, in such event, Butlr Health shall have no further obligation or liability to you under this Agreement or otherwise. You may not suspend your own Account. If you suspend your Account, then the Account will be deemed terminated (See Sections 8 and 23 herein, regarding deletion of your User Data on termination). In addition, Butlr Health may suspend or terminate your Account, without notice, for breach if you violate this Agreement, or any terms regarding payment of required fees and charges due under this Agreement. Butlr Health may, at its sole discretion, provide You a grace period prior to termination, in the event of your breach or failure to pay fees and charges, without waiving its rights hereunder to terminate immediately upon such events. We may suspend or terminate your Account if we determine in our discretion that such action is necessary or advisable to comply with legal requirements or protect the rights or interests of Butlr Health or any third party. In such event, you will not be entitled to compensation for such suspension or termination, and you acknowledge Butlr Health will have no liability to you in connection with such suspension or termination.
Upon termination of your Account, all licenses granted by Butlr Health to use the Website, Software, and the Service will automatically terminate and all User Data in your Account will be deleted.
Upon termination by You or by Butlr Health of your Account, you will not receive any refund of any amounts previously paid and you will remain liable for any charges incurred or unpaid amounts owed by you to Butlr Health.
The following terms will survive any termination of this Agreement: Sections 8, 10, 13, 16 and 18 through 33.
In the event of a Dispute between you and Butlr Health (including any dispute over the validity, enforceability, or scope of this dispute resolution provision), other than with respect to claims for injunctive relief, the Dispute will be resolved by binding arbitration pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules. The place of the arbitration shall be in Los Angeles, California. In the event that there is any Dispute between you and Butlr Health that is determined not to be subject to arbitration pursuant to the preceding sentence, you agree to submit in that event to the exclusive jurisdiction and venue of the state and federal courts located in the City and County of Los Angeles, California. You agree that this Agreement and the relationship between you and Butlr Health shall be governed by the Federal Arbitration Act and the laws of the State of California without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s Intellectual Property Rights in any court of competent jurisdiction where the other party resides or has its principal place of business.
Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by you, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a Dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.
Butlr Health is a United States-based service. We make no representation that any aspect of the Service is appropriate or available for use outside of the United States or may be used for persons who are not citizens of the United States or residents of other countries. Those who access the Service from other locations are responsible for compliance with applicable local laws. The Software is subject to applicable export laws and restrictions.
You may not assign this Agreement or your Account without our prior written consent. You may not transfer or sublicense any licenses granted by Butlr Health in this Agreement without our prior written consent. We may assign this Agreement, in whole or in part, and all related rights, licenses, benefits and obligations, without restriction, including the right to sublicense any rights and licenses under this Agreement.
These Agreement and the policies referenced in this Agreement sets forth the entire agreement and understanding between you and Butlr Health with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements or understandings. Butlr Health reserves the right to modify this Agreement and Terms of Service at any time upon notification to you as provided in Section 30. If any future change is unacceptable to you, you should discontinue using the Service. Your continued use of the Service will always indicate your acceptance of this agreement and any changes to it.
You acknowledge that no other written, oral or electronic communications will serve to modify or supplement this Agreement, and you agree not to make any claims inconsistent with this understanding or in reliance on communications not part of this Agreement. The section headings used herein, including descriptive summary sentences at the start of each section, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.
Butlr Health may provide notice to you and obtain consent from you (1) through the website at www.Butlrhealth.com; (2) by electronic mail at the electronic mail address associated with your Account; and/or (3) by written mail communication to you at the address associated with your Account. You must give all notices required or permitted under this Agreement to Butlr Health Inc., 11801 Mississippi Ave. #200, Los Angeles, CA 90025.
Butlr Health may refer names of certain third party service providers (“Service Providers”) to you upon your request or in connection with the Service. Any Service Providers referred to you by Butlr Health are not owned or controlled by Butlr Health, and Butlr Health does not receive any commission, fee or other compensation for referring any Service Providers to you. You agree that Butlr Health is not responsible or liable in any way for the acts or omissions of any Service Providers, including, without limitation, any negligent, willful or illegal conduct. You further agree to conduct your own investigation and due diligence regarding any Service Providers referred to you by Butlr Health. You agree to defend, indemnify and hold harmless Butlr Health from all damages, liabilities, claims, expenses and losses relating to the referral of Service Providers to you.
For purposes of complying with the requirements of HIPAA, you and Butlr Health agree to be bound by each of the terms and provisions of the Business Associate Agreement, which can be found at www.Butlrhealth.com/baa and which is incorporated in full by this reference. If any provision hereof is potentially or actually in conflict with the provisions of the Business Associate Agreement with respect to the treatment of Protected Health Information, the terms of the Business Associate Agreement shall prevail.