This GoodFriend Provider Agreement (“Agreement”) contains the terms and conditions that apply to the use by you and the entity that you represent (“Provider” or “You”) of the Services offered by Kinship Partners Inc. d/b/a GoodFriend (“GoodFriend”), including but not limited to www.goodfriend.com and all affiliated websites and applications owned and operated by GoodFriend (the “GoodFriend Website”). For the purposes of this Agreement, “Provider” shall mean both You, an individual, and the entity on behalf of which You engaged GoodFriend to provide the Services (as defined below), and shall include all of Your professionals, employees, Providers, and staff members. This Agreement hereby incorporates by reference any Provider account page accessible by Provider through the Services (the “Account Page”) or other statement of work or order form entered into by the parties and any addenda thereto.
BY AGREEING TO THESE TERMS, YOU REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT AND ACKNOWLEDGE AND AGREE THAT ALL USE OF THE SERVICES (AS DEFINED BELOW) BY PROVIDER IS SUBJECT TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS OR ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT AND BIND THE ENTITY YOU REPRESENT TO THESE TERMS AND CONDITIONS, THEN DO NOT ENTER THIS AGREEMENT.
1. Services. Subject to the terms and conditions of this Agreement and payment of the fees set forth herein, GoodFriend will provide a variety of services via the GoodFriend Website (“Services”), which may include, but are not limited to: (i) hosting Provider profile web pages, and marketing Providers and their services on the Website; (ii) provide scheduling services; and (iii) billing, collection, and payment services (“Payment Services”).
2. Provider Access. Subject to the terms and conditions of this Agreement, GoodFriend grants Provider the right to access and use the Services and the GoodFriend Website and to permit its employees, agents, and subcontractors the right to access and use the Services and the GoodFriend Website solely on Provider’s behalf; provided, however, that You shall be responsible for any use of the Services and the GoodFriend Website by such employees, agents, and subcontractors, and any other person or entity who gains access to the Services through Your Account credentials. During the Term and subject to the terms and conditions of this Agreement, You grant GoodFriend the right to access and use Provider’s management system, calendar system, and patient database (“Provider’s Systems”), and to copy, extract, and use all data necessary to provide the Services.
3. Provider Information. You acknowledge and agree that to provide the Services, GoodFriend shall make information about Provider and the products and services offered and sold by Provider (collectively, “Provider Services”) available to end users of the GoodFriend Website (“End Users”), including End Users that book or purchase a Provider Service through GoodFriend (“Customers”). Such information includes, without limitation: (i) Provider’s address, phone number, fax number, and email address; (ii) information regarding Provider appointment availability and cancellation, rescheduling, and refund policies; (iii) general information about Provider’s company, products, and services; and (iv) trademarks, logos, and such other domains, images, and materials that Provider provides to GoodFriend (“Provider Logos”) (collectively, “Provider Information”). GoodFriend and its partners may use, modify, display, and reproduce Provider Information in connection with providing and marketing the Services and the GoodFriend Website. You may request that GoodFriend modify Provider Information with additional information, links, or services. GoodFriend may incorporate such modifications and additional information into Provider’s profile on the GoodFriend Website in GoodFriend’s sole discretion.
4. Accounts. Each Provider shall create and maintain an account and password (“Account”) to use the Services and GoodFriend Website, including uploading, reviewing, and updating Provider Information. Account information shall be held in strict confidence by Provider and Provider shall be solely responsible for any disclosures of its Account information or use thereof by any unauthorized party. Provider shall immediately notify GoodFriend of any unauthorized use, access, or other compromise of an Account (including any password); or if an authorized Provider contact is no longer employed or authorized, or otherwise ceases to be part of any Provider. GoodFriend reserves the right to disable any Account upon its reasonable belief that the security with respect to that Account has been or likely will be compromised.
5. Reviews. GoodFriend may solicit feedback from Customers and End Users regarding Providers and Provider Services (“Reviews”), and GoodFriend may, in its sole discretion, make these Reviews available on the GoodFriend Website and in other media. GoodFriend reserves the right, but does not undertake the obligation, to remove Reviews. However, GoodFriend shall have no obligation to (i) review Reviews for veracity, accuracy, or content, or (ii) remove any Reviews. Further, GoodFriend shall have no liability to Provider with respect to, and Provider hereby releases GoodFriend from, all claims related to, arising from or in connection with Reviews, including without limitation claims that a Review is defamatory, libelous, false, misleading, unfair, deceptive, or disparaging. Provider represents and warrants that it will not attempt to improperly influence or fraudulently create Reviews of its or other Providers. GoodFriend may also display through the Services certain reviews of Providers submitted directly to Provider or an agent of Provider. Provider agrees and acknowledges that GoodFriend may, in its sole discretion, remove or refrain from publishing any such Review including, but not limited to, if it violates GoodFriend’s policies, or applicable laws, rules, or regulations.
6. Content. GoodFriend shall develop, compile, modify, or otherwise maintain all content on the GoodFriend Website or as part of the Services, including any Provider photographs, and any content provided by Provider or Customers. Provider acknowledges and agrees that GoodFriend may make content from the GoodFriend Website, including Provider Information, available on third-party websites, platforms, and through marketing initiatives.
a. Acceptance. You may choose to review, download, or otherwise use certain software applications or other code and functionality from the GoodFriend Website or otherwise provided by GoodFriend (“Software”). As a condition to using the Software, You must review and agree to this Agreement, the GoodFriend Terms and Conditions, and any other terms and conditions that may apply (collectively, the “Software Terms”). If there is a conflict between this Agreement and the GoodFriend Terms and Conditions, this Agreement will control. If You use the Software, You shall be deemed to have accepted the Software Terms.
b. Software. Subject to the terms and conditions of this Agreement and during the Term, GoodFriend grants Provider a limited, non-exclusive, non-sublicensable, non-transferable and revocable right and license to use the Software solely for Provider’s internal business purposes and solely in connection with the relevant Provider Services. GoodFriend reserves all rights to the Software not expressly granted hereunder. Subject to the terms and conditions of this Agreement and during the Term hereof, GoodFriend hereby grants to You a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to use the Software on Provider’s authorized website (“Provider Website”) solely for the intended purposes to access and display certain GoodFriend Content (as defined below) to visitors of the Provider Website. Upon GoodFriend’s request, You shall immediately remove any Software from the Provider Website. Provider is not licensed to use the Software for any other purpose and nothing in this Agreement shall be deemed to grant You any other right, title, or interest in the Software
c. GoodFriend Marks. Subject to the terms and conditions of this Agreement, Provider may display GoodFriend’s name and any trade name, trademark, service mark, or logo (“GoodFriend Marks”) on the Provider Website in connection with the presentation of the Software and direction to the GoodFriend website. All goodwill related to such name and logo and all uses thereof, and any accrued goodwill, shall inure solely to the benefit of GoodFriend. Provider shall immediately cease such use or modify its use of the GoodFriend Marks upon GoodFriend’s written request. Upon any termination of this Agreement, Provider shall immediately cease all use of GoodFriend Marks.
d. Provider Website Terms. If the Provider Website includes any data, information, or content provided or otherwise made available by or on behalf of GoodFriend through or in connection with the Services or the GoodFriend Website, GoodFriend Marks, links and search functionality leading to the GoodFriend Website, or data and html and other code that accompanies the Software (“GoodFriend Content”), Provider shall require that Provider Website visitors affirmatively accept terms and conditions in connection with such use of the Provider Website. Such terms must include all legally required and otherwise appropriate disclaimers related to the applicable GoodFriend Content, and provisions regarding Provider’s collection and processing of website visitors’ personal information in compliance with all applicable laws and regulations and consistent with this Agreement.
e. Restrictions. Except as expressly authorized under this Agreement, Provider may not (i) copy, rent, lease, sell, lease, license, transfer, assign, sublicense, redistribute, disassemble, aggregate, index, reverse engineer or decompile, derive source code or algorithms from, modify or alter, interfere with, defeat, avoid, disrupt, bypass, remove, disrupt or disable any part of the GoodFriend Website; (ii) circumvent or attempt to circumvent any restrictions on, access to, or use of the GoodFriend Website, or any of their constituent components; (iii) introduce any virus, worm, trap door, back door, timer, time bomb, authorization codes, or other device that would access, modify, interfere with or disrupt the use of the GoodFriend Website; (iv) use the GoodFriend Website for any unlawful purpose, including to phish, spam, or distribute malware; (v) otherwise use the GoodFriend Website or Services on behalf of any third party or on any websites other than the Provider Website and the Provider Services expressly articulated by Provider to GoodFriend, or to create or maintain a separate online scheduling platform, or other similar product or service; (vi) resell, disclose, publish, or distribute the GoodFriend Website, including any information created, received, processed, or provided through the Services or the GoodFriend Website; (vii) use the GoodFriend Website in any manner or for any purpose that violates any law or regulation, or any right of any person, including, but not limited to, intellectual property rights, rights of privacy, or rights of publicity; (viii) cache or store any content obtained via use of the GoodFriend Website; or (ix) remove or alter any branding, identifying, or notices included with the Software including any GoodFriend Marks. Further, Provider shall not place any Software or GoodFriend Content on Provider Websites that include content that is offensive, abusive, harassing, threatening, discriminatory, vulgar, pornographic, or otherwise inappropriate, as determined by GoodFriend in its sole discretion. Provider may not display the GoodFriend Content or Software in a manner that does not permit successful linking or redirection to the GoodFriend Website.
a. Provider Information. Provider shall cooperate with GoodFriend, its designated agents, or independent contractors to provide and verify information that GoodFriend in its sole discretion deems necessary to confirm Provider’s professional qualifications, legitimacy, and veracity. Provider will promptly update and notify GoodFriend of any change in Provider Information. Provider is solely responsible for any liability or expense resulting from outdated or inaccurate Provider Information. Provider further agrees that GoodFriend may, in its sole discretion, modify the processes and criteria it uses to evaluate Provider qualifications, including with respect to any specialty listing, and may reject a Provider from being included or listed in the Services for failure to meet GoodFriend’s eligibility standards, in GoodFriend’s sole discretion.
b. Provider Services; Acceptance of Customers. Provider’s acceptance of an appointment scheduling request from GoodFriend for a Customer constitutes, for the purposes of this Agreement, Provider’s acceptance of such Customer as a customer of Provider. Provider is solely responsible for all products sold and services rendered to Customer. Except for GoodFriend’s Payment Services obligations, GoodFriend shall have no responsibility or liability whatsoever for Customer’s payment for Provider Services. Provider expressly acknowledges and agrees that GoodFriend shall not be responsible or liable for the provision or fulfilment of Provider Services.
c. Scheduling Requests. After a Customer submits a scheduling request via the GoodFriend Website, Provider must respond to Customer scheduling request within a reasonable amount of time, but in no event more than twenty-four (24) hours after receiving GoodFriend’s request for an appointment on behalf of a Customer. Such response must include an appointment confirmation or rejection. Provider acknowledges and agrees that repeated rescheduling, rejection, or cancelling of Customer appointments may result in Provider being removed from, or otherwise affected in the order of display of, appointment listings available to End Users, in GoodFriend’s sole discretion.
e. Contact. Provider agrees that GoodFriend may contact You or any agent, employee, or member of Provider regarding the Services, the Software, or the GoodFriend Website. If Provider previously opted out of receiving any email, facsimile, or telephone communications (including communications made using an automated dialing system or prerecorded voice) from or on behalf of GoodFriend, then Provider expressly opts back in to receiving such email and facsimile communications and hereby withdraws its opt-out.
Fees and Payments
a. Services Fees. Provider shall pay GoodFriend any fees specified in the applicable insertion order or order form, or as otherwise specified on Provider’s Account Page. Prices will not include any taxes that may apply, and Provider agrees to pay any sales and other taxes that may apply (excluding GoodFriend’s income taxes). Any and all late payment amounts shall bear interest at the rate of the lesser of one and one half percent (1.5%) per month or the maximum amount permissible by law. Except as otherwise may be agreed between the parties, GoodFriend reserves the right to change from time to time the amount or structure of the fees for any of the Services (including the Payment Services).
b. Payment Services. GoodFriend shall provide the Payment Services through which Customers can book Provider Services and pay GoodFriend for such Provider Services. Provider shall specify the price for each Provider Service in its Provider Account. Any changes to prices for Provider Services will be published within five (5) business days, and Provider expressly agrees to accept appointments made under previous pricing if Provider does not provide GoodFriend adequate prior notice of any price changes. Subject to the terms and conditions herein, GoodFriend shall pay Provider the amount specified in the Provider Account Page (“Provider Payments”) after a Customer completes a purchase of the corresponding Provider Service and Provider completes and fulfills such Provider Service. Provider Payments shall be issued to Provider via the ACH or to the account connected by Provider through GoodFriend’s payment processor. If a Customer requests a cancellation or refund or initiates a chargeback for Provider Services, GoodFriend shall deduct the corresponding amount, including a transaction and chargeback fee if imposed on GoodFriend, from Provider Payments for such cancellations, refunds, or chargebacks. Provider Payments shall be issued within 30 days after the date that the Provider Services were provided to Customer. Without limiting the foregoing, GoodFriend reserves the right to extend the period in which it issues refunds to Customers, in which case Provider shall not receive Provider Payments until such refunds are processed by GoodFriend. GoodFriend expressly reserves the right to withhold Provider Payments in whole or in part if it suspects that Provider has violated this Agreement, or any applicable law, rule, or regulation (including rules established by payment processor, banks, and card brands), or if GoodFriend suspects or determines that Provider or any third party under Provider’s reasonable control engaged in fraud, as determined by GoodFriend in its sole discretion. In the event of a dispute regarding amounts due, Provider agrees that GoodFriend’s calculation of amounts shall control.
c. Cancellation/Refunds. Provider shall establish cancellation, rescheduling, and refund policies for Customers and inform GoodFriend in writing of such policies through the Provider Account. Provider Payments shall be issued in accordance with valid Customers for whom it fulfills and completes Provider Services, and Provider shall not be entitled to any Provider Payments resulting from a scheduling request that is subsequently cancelled or rescheduled, or refunded, in accordance with GoodFriend’s policies. Provider acknowledges and agrees that GoodFriend’s cancellation, rescheduling, and refund policies shall be established and administered by GoodFriend at GoodFriend’s sole discretion, and GoodFriend reserves the right to extend or modify such policies if it believes, in its sole discretion, that such extension or modification is appropriate or necessary for customer service, risk reduction, or compliance purposes. If Provider or Provider’s personnel receives a cancellation or refund request, Provider shall contact GoodFriend and not provide a refund directly or take any other responsive action, unless GoodFriend provides written instructions to the contrary. GoodFriend may issue refunds to users as required by law or in its discretion. Notwithstanding any language to the contrary in the Agreement, if GoodFriend issues (or notifies Provider that it is planning to issue) a full or partial refund to a Customer, GoodFriend shall have the right to be reimbursed for the applicable amount by Provider, or to withhold or deduct the applicable amount from Provider Payments (including future Provider Payments) in GoodFriend’s discretion; and if GoodFriend requests that Provider issue a refund to a Customer directly instead of reimbursing GoodFriend, Provider shall follow GoodFriend’s instructions. Provider’s obligations under this section shall apply in all events, including if Provider does not or cannot provide the applicable Provider Service.
d. Penalties. Provider is responsible for any penalties or fines imposed in relation to Provider Services by GoodFriend’s payment processor, acquirer, or card brands resulting from Provider’s use of Payment Processing Services in a manner not permitted by this Agreement, rules and regulations imposed by GoodFriend’s payment processor or acquirer, any other law, rule, or regulation, or resulting from fraud by Provider or a party under Provider’s reasonable control.
e. Additional Payment Terms. By entering this Agreement, You are expressly consenting to the Stripe Connected Account Agreement (https://stripe.com/connect-account/legal), which is incorporated herein by reference.
Representations, Warranties, and Covenants.
a. Provider Representations and Warranties.
i. You represent and warrant that You have the right, power, and authority to enter into this Agreement and bind the Provider entity that You represent and on whose behalf You enter this Agreement. Further, You represent, warrant, and covenant that at all times during the Term: (i) Provider shall provide GoodFriend with complete and accurate information about Provider Services, expertise, and specialties (in accordance with and subject to GoodFriend’s then-current guidelines), association memberships, contact information (including Provider professional address and phone and fax numbers), and business / customer policies; (ii) Provider shall provide GoodFriend accurate and up-to-date information regarding Provider’s appointment availability; (iii) Provider shall comply with all applicable laws, rules, and regulations; (iv) Provider possesses the requisite valid, unexpired, unrevoked, and unrestricted licenses, authorizations, and certifications as required by law, rule, or regulation (and shall provide proof of the same to GoodFriend upon GoodFriend’s written request); (v) Provider and Provider’s employees, contractors, and agents fulfilling the Provider Services have had proper education and training relating to all Provider Services; (vi) Provider treats all Customers without regard to such Customers’ race, religion, ethnicity, gender, national origin, sexual orientation, disability, or any other unlawful considerations; (vii) the Provider primarily providing the Provider Services for an appointment shall be the person or entity with whom such appointment is booked via the GoodFriend Website and Services; (viii) Provider shall use, and ensure that all of its employees, officers, contractors, and agents use, the Services and the GoodFriend Website in compliance with all applicable laws and regulations, including, without limitation, competition, advertising, marketing, and consumer protection laws and regulations; (ix) Provider has the right to enter into and subject its corporate entity, employees, and agents to the terms and conditions of this Agreement; (x) Provider’s business information and financial account information provided to GoodFriend pursuant to this Agreement are accurate and that the undersigned is the authorized person to receive the funds sent by GoodFriend; and (xi) Provider possesses all right, title, and interest necessary for GoodFriend to provide the Services to Provider. Provider further represents and warrants that it will notify GoodFriend within five (5) days with any additional information requested by GoodFriend, any changes with respect to any Provider Information, or if at any point Provider is no longer in compliance with any of the representations and warranties in this Agreement.
ii. Competition. Provider represents and warrants that it will not, and will ensure that each of its employees, agents, independent contractors, and any other person or entity gaining access to the Services via Provider’s Account credentials will not, engage or participate in any act or omission involving the use of the Services: (i) to establish, attempt to establish, or enforce, directly or indirectly, any agreement or coordination of (A) the prices charged for any product or service; (B) the kinds, frequencies, or amounts of any product or service offered; or (C) the customer or customer categories for any product or service, or otherwise engage or attempt to engage in price fixing, output restriction, or customer or market allocation; or (ii) to engage in any anti-competitive, deceptive, or unfair act, omission, or practice, or to otherwise violate applicable antitrust, competition, or consumer protection laws or regulations.
iii. Ownership Rights. Provider represents, warrants, and covenants that it has all necessary right, title, and interest in and to the content it submits to GoodFriend, including any and all rights and interests in or to Provider Information and any copyright, trademark, other intellectual property, publicity, and privacy (including necessary consents, authorizations, and any other legal permissions).
iv. Reviews. If Provider provides any Reviews to GoodFriend, Provider represents and warrants that it has obtained all rights, titles, interests, consents, and authorizations necessary from the applicable third-party reviewer and in accordance with applicable laws and regulations, for GoodFriend to publish such Reviews through the Services; no remuneration or compensation has been or will be provided to the applicable customer for his or her review; and each such Review has been provided to Provider or its agent by a customer of Provider in connection with services actually provided or products actually sold by the Provider.
b. Mutual Warranties. Each party hereto represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized; (ii) it has the full power to enter into this Agreement and to perform its obligations hereunder; (iii) the execution and delivery of this Agreement will not result in any breach of any terms and conditions of, or constitute a default under, any other agreement to which such party is bound; and (iv) it is not currently the subject of a voluntary or involuntary petition in bankruptcy, does not currently contemplate filing any such voluntary petition, and is not aware of any basis for the filing of an involuntary petition.
c. No Other Warranties. THE GOODFRIEND WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GOODFRIEND MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. GOODFRIEND DOES NOT WARRANT OR GUARANTEE QUALITY; OFFER PERFORMANCE; CONVERSION RATES; RESPONSE RATES; OR THAT PROVIDER WILL RECEIVE A CERTAIN NUMBER OF CUSTOMERS OR AMOUNT OF PROFITS. GOODFRIEND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, AND ALL WARRANTIES OF THE SERVICES, SOFTWARE, OR THE GOODFRIEND WEBSITE BEING BUG-FREE, ERROR-FREE, OR FREE FROM DEFECTS.
Provider will defend, indemnify, and hold harmless GoodFriend and its affiliates, directors, officers, employees, consultants, and agents from any and all claims, actions, proceedings, losses, damages, liabilities, and expenses, including reasonable attorneys’ fees and amounts awarded by a court or paid in settlement, arising from or related to: (i) any services provided by Provider or any of its employees, independent contractors, or agents to a Customer or other person resulting from the use of the Services or the GoodFriend Website, including the Provider Services; (ii) any fees, costs, or expenses in connection with any services or treatment provided by Provider to a Customer resulting from Provider’s use of the Services or the GoodFriend Website; (iii) use of the Services by, or provision of the Services to, any other Provider customers; (iv) gross negligence, willful or intentional misconduct, or fraud; (v) any breach of this Agreement or violation of any applicable law, rule, or regulation; (vi) any breach of a third party’s rights; (vii) the Provider Information; or (viii) Provider’s use of, storage, or disclosure of Customer Information.
Limitation of Liability.
a. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL GOODFRIEND OR ITS PARTNERS, SUPPLIERS, VENDORS, OR LICENSORS BE LIABLE TO PROVIDER OR PROVIDER’S EMPLOYEES, OFFICERS, AGENTS, OR INDEPENDENT CONTRACTORS FOR ANY (i) LOSS OF PROFITS, LOST REVENUE, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF DATA, (iii) LOSS OR INTERRUPTION OF USE OF THE SERVICES, SOFTWARE, OR GOODFRIEND WEBSITE, (iv) PROVISION OF SERVICES TO CUSTOMERS OR PROVIDER’S NON-GOODFRIEND CUSTOMERS, (v) LOSS OF PROFITS OR SALES; OR (vi) REVIEWS, WHETHER IN AN ACTION IN CONTRACT, TORT, OR BASED ON A WARRANTY, EVEN IF GOODFRIEND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND LOSSES.
b. Provider Services. Provider acknowledges and agrees that GoodFriend does not render or fulfill any Provider Services, and Provider shall be exclusively responsible for fulfilling all Customer requests.
c. Limitation. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF GOODFRIEND OR ITS PARTNERS, VENDORS, SUPPLIERS, OR LICENSORS FOR ANY LOSS OR DAMAGES (WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER FORM OF ACTION) (A) RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE GOODFRIEND WEBSITE, OR THE SERVICES; OR (B) RELATING TO OR ARISING OUT OF ANY OTHER AGREEMENT BETWEEN PROVIDER AND GOODFRIEND OR ANY THIRD PARTY THAT IS A PARTNER, VENDOR, SUPPLIER, LICENSOR, OR LICENSEE OF GOODFRIEND, EXCEED THE GREATER OF: (Y) THE AGGREGATE OF THE AMOUNT OF FEES ACTUALLY PAID BY PROVIDER TO GOODFRIEND HEREUNDER DURING THE PREVIOUS TWELVE (12)-MONTH PERIOD, OR (Z) ONE HUNDRED DOLLARS ($100).
Any use of a GoodFriend Mark by Provider that is not expressly permitted hereunder shall, in each case, be subject to the prior written approval of GoodFriend. GoodFriend reserves the right to terminate Provider’s right to use any GoodFriend Mark immediately upon the issuance of written notice if GoodFriend determines in its sole discretion that Provider is in violation of any of GoodFriend’s guidelines or that such use might result in any harm to GoodFriend. Provider acknowledges and agrees that it shall not (i) make any comparative references to GoodFriend, its pricing, the Services, or the GoodFriend Website; (ii) disparage or otherwise denigrate GoodFriend, the Services, or the GoodFriend Website; or (iii) promote a competitive offering. Provider grants GoodFriend a non-exclusive, royalty-free license to use Provider Logos in connection with the Services during the Term.
All right, title, and interest, including without limitation all intellectual property rights, in and to the Services, Software, the GoodFriend Marks, and the GoodFriend Website, including all content submitted by Customers or Provider thereto (other than Provider Logos), as well as all URLs and domains registered by GoodFriend (even if such URLs and domains incorporate Provider Logos), shall remain the valuable and exclusive property of GoodFriend. GoodFriend retains all proprietary rights, title, and interest, including, without limitation, all patents, copyrights, trademarks, service marks, trade dress, rights to the look and feel of the GoodFriend Website, Services, and trade secrets in and to any inventions, data, information, know-how, logos, ideas, concepts, technology, software, and documentation related to or resulting from the use of the Services or the GoodFriend Website.
a. Confidential Information. "Confidential Information” means all confidential and proprietary information of one party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), including the terms of this Agreement (including pricing terms), either party’s marketing strategies and methodologies, business plans, technology and technical information, product designs, business processes, targeting information and processes, test results, statistics, reports, and compliance information, regardless of whether or not such information is designated as confidential. For the purposes of this Agreement, Customer Personal Information shall constitute GoodFriend’s Confidential Information. However, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; or (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party.
b. Non-Disclosure. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose other than to fulfill its obligations under this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing the Receiving Party’s obligations under this Agreement, provided that the Receiving Party certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain such Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own information of a confidential and proprietary nature, but in no event less than a reasonable degree of care.
c. Compelled Disclosure. If Receiving Party is compelled by law or court of competent authority to disclose Confidential Information of the Disclosing Party, it must first notify the Disclosing Party and provide it ample time to seek a protective order or other relief before producing Confidential Information. In the event such protection is not obtained, or the Disclosing Party waives compliance with this provision, the Receiving Party agrees that it will disclose only that portion of the Confidential Information that it is legally required to disclose.
d. Injunctive Relief. If the Receiving Party discloses or uses (or states an intent to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality obligations hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
a. Term. This Agreement will commence on the date of Provider’s acceptance of the terms and conditions herein, whether by creating an Account or electronically signing this Agreement, or by downloading, accessing, or otherwise using the Services or the GoodFriend Website, and shall continue in effect for a period of one (1) year (the “Initial Term”). This Agreement will automatically renew for successive periods of the same length as the Initial Term unless either party notifies the other party in writing at least thirty (30) days prior to the end of the Initial Term, or any renewal period, of its election not to renew this Agreement. The Initial Term and all renewal periods are collectively referred to herein as the “Term.”
b. Termination. Provider or GoodFriend may terminate this Agreement if the other party breaches a material term of this Agreement and fails to cure such breach within ten (10) days of receiving notice. Without limiting the foregoing, GoodFriend reserves the right to suspend or terminate this Agreement if it suspects or determines that Provider or any person under its reasonable control has (i) violated any applicable law, rule, or regulation or the rights of any third party; (ii) engaged in inappropriate or unprofessional conduct or fraud; (iii) failed to fulfill the requirements set forth hereunder or failed to fulfill Provider Services scheduled by Customers; or (iv) otherwise breached any provision of this Agreement. GoodFriend also reserves the right, at its sole discretion, to terminate this Agreement immediately for multiple rescheduling or cancelling of appointments by Provider.
c. Survival. All rights to validly accrued fees, payments, withholding of payments, causes of action, and any provisions, which by their terms or nature are intended to survive termination, shall survive any termination of this Agreement.
a. Assignment. Neither party may assign this Agreement, or any of its rights and obligations hereunder, without the prior written consent of the other party, except that GoodFriend has the unrestricted right to assign this Agreement to an affiliate or in the event of a sale, merger, or acquisition of any portion of its business to which this Agreement relates. Any attempted transfer in violation of this section will be void and of no effect. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
b. Notices. All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be deemed given if sent (i) to GoodFriend by overnight guaranteed delivery service and addressed to 440 Park Avenue, Fl. 5, New York, NY 10022 Attn: Legal or by email to firstname.lastname@example.org, return receipt requested; or (ii) to Provider via email to the designated billing contact or address on file or via the Provider Account Page. Provider expressly consents to the provision of notices via email. Either party may update its preferred notice address at any time upon proper notice to the other party. Any such notice or other communication shall be deemed to be given as of the date it is delivered to the recipient or, if delivered on a non-business day, on the next business day.
c. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without reference to its conflict of laws provisions.
d. Arbitration Agreement. Provider and GoodFriend acknowledge and agree that any dispute, claim, question, or disagreement arising out of or relating to the subject matter of this Agreement must be communicated in writing to the other party. The parties shall use their best efforts to reach resolution directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If, after sixty (60) days, such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York, NY before the American Arbitration Association conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. PROVIDER AND GOODFRIEND WAIVE ANY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. In any litigation between Provider and GoodFriend over whether to vacate or enforce an arbitration award, PROVIDER AND GOODFRIEND WAIVE ALL RIGHTS TO A JURY TRIAL and elect instead to have the dispute be resolved by a judge. Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of New York: (i) any dispute, controversy, or claim relating to or contesting the validity of GoodFriend’s or one of GoodFriend’s family company’s intellectual property rights and proprietary rights, including without limitation, patents, trade]marks, service marks, copyrights, or trade secrets or (ii) an action by GoodFriend for temporary or preliminary injunctive relief, whether prohibitive or mandatory, or other provisional relief. FURTHER, ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. CLAIMS OF MORE THAN ONE PROVIDER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PROVIDER. However, if the prohibition against class actions and other claims brought on behalf of third parties, or any other part of this section, is found to be unenforceable, then all of the other language in this Section 12.d shall be deemed unenforceable. To the extent that Provider or GoodFriend are permitted to bring a claim relating to this Agreement in state or federal court, then such claim shall only be brought in courts located in New York.
e. Modifications. No modification, amendment, or waiver of this Agreement or any of its provisions shall be binding upon GoodFriend unless made in writing and agreed to by GoodFriend. Provider expressly acknowledges and agrees that GoodFriend shall not be subject to any terms not set forth herein, including, but not limited to, any click-through agreements GoodFriend may be required to accept in connection with its use thereof. GoodFriend may amend the terms and conditions of this Agreement by posting a notice on Provider’s Account or otherwise reasonably notifying Provider at least thirty (30) days prior to such change taking effect, including by posting on the GoodFriend Website. If Provider does not agree to such changes, Provider may terminate this Agreement without penalty by providing GoodFriend with written notice of such election prior to such modification taking effect. Provider’s continued use of the Services or the GoodFriend Website following such period shall be deemed to be Provider’s acceptance of such change. A failure or delay of either party to: insist upon the performance of any terms, conditions, rights, or privileges of this Agreement, or exercise any rights or privileges conferred in this Agreement, shall not be construed as waiving any such terms, conditions, rights, or privileges and the same shall continue and remain in full force and effect.
f. Severability. Except as expressly set forth herein, in the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal, or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal, and enforceable, comes closest to the intention of the parties underlying the invalid, illegal, or unenforceable provision.
g. Entire Agreement. This Agreement, any exhibits or addenda hereto, the policies referred to herein, and any insertion order or order form, constitute the entire agreement between the parties hereto and supersede all previous or contemporaneous agreements, promises, or representations, whether written or oral, between the parties with respect to the subject matter hereof.
h. Headings. The headings of the sections of this Agreement are for convenience only and do not form a part hereof or in any way limit, define, describe, modify, interpret, or construe the meaning, scope, or intent of this Agreement or any terms or conditions therein.
i. Independent Contractors. The relationship of the parties shall be that of independent contractors. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party as agent, employee, or in any other capacity, except as specifically provided herein.
j. Third-Party Beneficiaries. This Agreement is entered into solely between, and made for the sole benefit of, GoodFriend and Provider, and, subject to indemnification obligations and the limitations of liability herein, this Agreement will not be deemed to create any obligations, remedies, or liabilities of a party to any third parties (including, without limitation, any of Provider’s officers, employees, agents, and independent contractors) unless explicitly stated herein. Except as otherwise stated in this Agreement, no third party shall have the right to make any claim or assert any right under this Agreement, and no third party shall be deemed a beneficiary of this Agreement.
k. Remedies Cumulative. Unless expressly stated, no remedy afforded to a party under this Agreement shall preclude other remedies available under equity or law.