Last Updated: September 22, 2022
You will pay WebMD Care for the Services according to the fees set forth in the applicable Order Form. All fees and charges are nonrefundable. Failure to remit full payment by the payment due date will result in the immediate suspension of the Services. In the event of any pricing change, WebMD Care will provide written notice to you at least two (2) weeks prior to the pricing change taking effect. You may cancel the automatic renewal of your Enhanced Profile Subscription at least two (2) business days prior to the start of the next billing cycle if paying on a fixed-fee or flat-fee. Your cancellation notification must be emailed to your account manager. Cancellations by voicemail will not be accepted. WebMD Care will not credit you for partial months of service.
You acknowledge and agree that all information, data, text, photographs, images, video, survey responses, messages or other materials communicated or transmitted using the Services, including your trademarks, logos and other branded materials (“Content”), whether publicly posted or privately transmitted, are owned by you and are your sole responsibility. You, and not WebMD Care, are responsible for all Content that you (or WebMD Care at your direction) uploads, posts, emails, distributes, communicates, transmits, or otherwise makes available to you or your clients using the Services, or that is otherwise made available through the use of your WebMD Care account or profile.
You grant to WebMD Care a non-exclusive, irrevocable, royalty-free, worldwide, perpetual, transferable, worldwide, unrestricted right and license, with the right to sublicense, to use, reproduce, modify, adapt, copy, distribute, create derivative works of, translate, edit, reformat, perform and display (publicly or otherwise) the Content in connection with the Services, including incorporating Content into any form, medium or technology now known or later developed through the universe, for the purposes of developing, providing, displaying, and marketing the Services. WebMD Care may compile and use aggregated non-personal information taken from your Content and provide such information to third parties. You represent that you own, or otherwise have sufficient rights and authorization in and to all Content such that you may grant to WebMD Care the license granted above. You acknowledge that users may rely upon the Content when requesting an appointment with your office and you agree that the Content you or your office submits will be accurate, complete and not misleading in any respect.
Neither WebMD Care nor the Services are a physician or dentist referral service. The Services are a form of advertising and do not guarantee you will receive new business. WebMD Care does not guarantee that any lead will become a client or need the services they sought.
We reserve the right to view, monitor and record activity used in connection with the Services without notice to or permission from you. We may disclose any records, electronic communications, information, materials or other content of any kind at our sole discretion. If it comes to our attention, or we are notified of an allegation, that the use of the Services contains any false, deceptive or misleading information or violates these Terms, then we may, but have no obligation to, investigate the allegation and determine in our sole discretion whether to remove or request the removal of the same from the Services.
This Agreement commences on the Effective Date, and continues through the latest expiration of all Enhanced Profile Subscription(s) and Order Forms subject to this Agreement, unless earlier terminated as provided herein. We reserve the right, at any time and for any reason, without notice to you: (i) to deny you access to the Services; (ii) to change, remove or discontinue the Services; or (iii) to terminate this Agreement. Upon termination of this Agreement, you may no longer access, browse or use the Services. If a Service is withdrawn, then you will only pay WebMD Care the pro rata fees for such Services through the date the Services ceased to be provided.
7.1 License to Practice
You represent that you are a provider validly licensed to practice dentistry or medicine, as applicable, and/or your advertised specialty as required by the applicable jurisdictions in which you practice. You are solely responsible for compliance with all laws, rules, and regulations governing dentist or physician advertising, ethical obligations, licensure, and the practice of dentistry and/or medicine, promulgated by any applicable jurisdiction, court, dental or medical association (as applicable), and any other governing body which are applicable to you, your office locations and staff or other representatives and your use of the Services. You will notify us immediately if there is a change in your applicable licensure status.
During the term of this Agreement, you represent that you hold professional liability insurance in an amount appropriate for your practice and required by your state. Upon our request, you agree to provide written proof and evidence of such professional liability insurance within three (3) business days of our request.
You are solely responsible for the Content. You are liable for any material protected by copyright, trademark, patent or trade secret law used in the Content without the permission of the author or owner, and for defamatory materials in any of your Content. WebMD Care is not responsible for reviewing the Content before it appears on the Services. You represent and warrant that (i) the Content you provide and any other provided information will be in compliance with the laws, rules, and regulations governing advertising, ethics, communications with patients and potential patients, licensure, and other obligations governing the Services in the state and locality in which you and your office are licensed (collectively "Advertising and Ethics Rules"); (ii) the Content contains no offensive, harassing, inflammatory, defamatory, indecent, or obscene material, (iii) the Content is not false, misleading, deceptive, or fraudulent; (iv) you will endeavor in good faith to honor all promises, offers, and statements you make in the Content and in any related materials, products, services, or communications you offer or make through the Content; (v) you own or are authorized to use the Content and all trademarks, trade names, and similar materials of any kind which are included in the Content; and (vi) the Content does not infringe upon or violate any intellectual property, proprietary, or other rights of WebMD Care and any third party. WebMD Care reserves the right, in its sole discretion, to refuse to display or to remove from the Services at any time any Content that it reasonably regards as violating this provision. WebMD Care reserves the right to release current or past information related to you if WebMD Care believes that you or any of your Content, any of the Services you ordered, or your account is in violation of any criminal laws or is being used to commit unlawful acts, or if the information is subpoenaed. You will notify WebMD Care promptly of any changes or inaccuracies in the Content of which you are aware or should be aware of at any time during the Term which are reasonably required to be made or corrected in order for the Content to be complete and accurate in all material respects and not misleading in any way.
You will reasonably and promptly cooperate with WebMD Care and its third party providers, throughout the term of this Agreement in providing accurate and complete information necessary for the provision of the Services and to allow WebMD Care to comply with the reporting obligations and Advertising and Ethics Rules related to the provision of the Services.
You agree that you assume all responsibility for determining which of the leads to pursue. If you include your email address or other contact information in any profile, posting or other content, resulting in your receiving email or other communications sent from any third party, you acknowledge that you have the sole discretion whether to respond to that sender, who may be an impostor, and you do so at your sole risk. You are solely responsible for assessing the integrity, authenticity, honesty and trustworthiness of all persons with whom you choose to communicate. You agree that WebMD Care will have no liability or responsibility whatsoever for any communications, agreements or transactions between you and any third party.
You agree that you will not charge more than your usual or customary fees to consumers matched with you pursuant to the Services.
7.7 TCPA Compliance
You agree that calling leads through the use of auto-dialer technology of any kind, including, but not limited to, prerecorded calls or calls/text messages to cellular phones, are at your own risk. You assume any and all liability for violations of the Telephone Consumer Protection Act of 1991, as amended (the “TCPA”), and other state and federal privacy laws. You agree to indemnify us against such liability resulting from your actions or inactions in violation of the TCPA and other state and federal privacy laws.
In accordance with the provisions of the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and Security, as amended ("HIPAA"), you agree to follow and abide to the following (all undefined terms have their meaning defined by the HIPAA regulations):
We apply the standards of the Privacy Rule in permitting access to the Services.
Our Services may include use of your patients' Protected Health Information that you or your personnel input or upload onto the Services or that we receive on your behalf from your authorized service providers or our third party partners ("Your Health Information"). You retain all rights with regard to Your Health Information, and we will only use such information as expressly permitted in this Agreement and our Business Associate Agreement. You authorize us, as your business associate, to use and disclose Your Health Information as follows:
In consideration of our provision of the Services, you hereby transfer and assign to us all right, title and interest in and to all De-Identified Information that we make from Your Health Information. You agree that we may use, disclose, market, license and sell such De-Identified Information for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. You acknowledge that the rights conferred by this Section are the principal consideration for the provision of the Services, without which we would not enter into this Agreement.
You are solely responsible for affording individuals their rights with respect to relevant portions of Your Health Information, such as the rights of access and amendment. You will not undertake to afford an individual any rights with respect to any information in the Services other than Your Health Information.
Use of the Internet and electronic communication tools are solely at your own risk and are subject to all applicable local, state, federal, and international laws and regulations. While we have endeavored to create secure and reliable Services, please be advised that the confidentiality of any communication or material transmitted to us over the Internet, including email, cannot be assured. You acknowledge that no method of transmission over the Internet, or method of electronic storage, including email, is 100% secure.
We retain the right, at our sole discretion, to restrict the volume of messages transmitted or received by you in order to maintain the quality of our email services to other customers and to protect our computer systems. Email Services may not be used for bulk mail or mass mailings.
Privacy and Security Rules
The Privacy Rule allows covered health care providers to communicate electronically, such as through e-mail, with their patients, provided they apply reasonable safeguards when doing so. See 45 C.F.R. § 164.530(c).
You must ensure that any transmission of electronic protected health information is in compliance with the HIPAA Security Rule requirements at 45 C.F.R. Part 164, Subpart C and take the following precautions and when using e-mail or text Services to avoid unintentional disclosures:
You further represent:
You agree to comply with all elements of CAN-SPAM and safe sender email practices. This includes but is not limited to including unsubscribe links, your full contact information in all correspondence, and not releasing private and/or confidential information. You may only use email services for those customers with which you have an existing business relationship and which have indicated that they accept correspondence from you. You may not attempt to spoof sender domains, send spam or other offending email. Because of carrier technologies, we make no expressed or implied warranty of individual message receipt. We are not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.
13.2 Text Messages
We may automate text message communications as a Service, but you are responsible for ensuring that the recipients of those communications have provided prior express written consent to receive them. The prior express written consent must identify that you may be sending text messages related to your goods and services using automated technology and that your customer affirmatively agrees to receive such messages. The prior express consent must include your customers’ written or electronic acceptance. Specifically, by entering a cell phone number into your management system or the WebMD Care system and not opting such cell phone out of the WebMD Care text message feature, you are directing WebMD Care to automatically send text message reminders and other communications to such cell phone and certifying that the user of such cell phone consents to the receipt of those messages. For Canada based businesses, you agree to adopt the double opt-in process comprising of 1) you may only use text message services for those customers with which you have an existing business relationship and which have indicated that they accept correspondence from you and 2) the customers must reply to an opt-in message from their handset. For reliable delivery, you must adhere to message limitations including length and delivery. You are responsible for all liability for any failure to receive consent or failure to opt users out of the text message feature. Additionally, you may not attempt to spoof sender domains, send spam or other offending text messages. We make no expressed or implied warranty of individual message receipt. Standard text message rates apply for all text message services. We are not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. THE SERVICES MAY CONTAIN TECHNICAL OR OTHER INACCURACIES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO: (I) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, QUALITY, PERFORMANCE OR SUITABILITY OF THE SERVICES; (II) ANY WARRANTIES CONCERNING COMPLIANCE WITH APPLICABLE FEDERAL AND STATE LAWS , INCLUDING ADVERTISING OR REFERRAL SERVICES AND (III) ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME ALL RISK FOR ANY VIOLATION OF THE ADVERTISING AND ETHICS RULES. WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. FURTHER, WE EXPRESSLY DISCLAIM ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOU MAY MAKE WITH PATIENTS, CONSUMERS OR USERS, AND YOU WILL LOOK SOLELY TO SUCH PERSONS AND/OR ENTITIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS.
WEBMD CARE WILL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM YOUR USE OF, OR RELIANCE UPON, THE SERVICES. IN THE EVENT OF ANY PROBLEM WITH THE SERVICES, YOUR SOLE REMEDY IS TO CEASE USING THE SERVICES. UNDER NO CIRCUMSTANCES WILL WE OR ANY OF OUR DIRECTORS, OFFICERS, SHAREHOLDERS, PROPRIETORS, PARTNERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SERVANTS, ATTORNEYS, PREDECESSORS, SUCCESSORS OR ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY, OR LOSS OF USE) ARISING OUT OF USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, WEBMD CARE OR ANY OF OUR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS IS LIABLE TO YOU FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, SUCH TOTAL LIABILITY, IN RESPECT OF SUCH AMOUNTS, WILL NOT EXCEED THE AMOUNTS PAID BY YOU FOR THE SERVICES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR CAUSE OF ACTION. IN ADDITION TO THE FOREGOING, WEBMD CARE SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND RESULTING FROM YOUR NON-COMPLIANCE WITH ALL LOCAL AND STATE ETHICS RULES, INCLUDING BUT NOT LIMITED TO RULES PROMELGATED BY STATE LICENSING BOARDS AND AUTHORITIES, OR OTHER APPLICABLE RULES OR FROM YOUR VIOLATION OF SUCH RULES. Some states do not allow the exclusion or limitation of liability for consequential or incidental damages; thus, this limitation might not apply to you.
You will defend, indemnify, and hold WebMD Care, its shareholders, directors, officers, employees, agents, partners or licensees harmless for all claims, demands, liabilities, damages, losses and expenses (including reasonable attorneys’ fees) arising out of or in connection with: (i) your use of the Services, including your use of or reliance on any information or materials obtained through the use of the Services; (ii) your breach of this Agreement, including any of your representations and warranties under this Agreement, (iii) your contravention of any applicable law, statute, ordinance, or regulation, including, but not limited to, the Advertising and Ethics Rules; and (iv) your violation or infringement of any intellectual property rights or privacy rights of any third party.
The Agreement, including but not limited to its terms, conditions and pricing information is "Confidential Information" of WebMD Care. You will receive and maintain Confidential Information in trust and confidence and not disclose or provide access to the Confidential Information to any third party. You will further limit disclosure within your organization to those persons who have a "need-to-know". You understand disclosure of Confidential Information may cause competitive harm to WebMD Care. If you breach this confidentiality provision, WebMD Care may, at its option, and in addition to any other remedy it may have under the Agreement, at law or in equity, immediately terminate the Services provided under the Agreement.
You have affirmatively opted in to, or otherwise validly and expressly consented to, receiving communications from us. Use of the Services is solely at your own risk and is subject to all applicable local, state, federal, and international laws and regulations. While we have endeavored to create secure and reliable Services, please be advised that the confidentiality of any communication or material transmitted to us or by us over the Internet, email or other communications cannot be guaranteed. Consequently, we are not responsible for the security of any information transmitted via the Internet or the Services. Should you elect Services involving email communications with patients, you represent to WebMD Care that you have the rights to use the patients’ email and share with us for the purpose of sending communications.
This Agreement contains the final and entire agreement regarding your use of the Services and supersedes all previous and contemporaneous oral or written agreements. The failure by either party to enforce any right or provision of this Agreement will not constitute a waiver of that provision or of any other provision of this Agreement. If any provision of this Agreement is determined to be invalid or unenforceable by a court, such provision will be deemed severable and the remainder of this Agreement will remain in full force and effect. You may not assign this Agreement without the prior written consent of WebMD Care. WebMD Care will not be liable for any damage, delay, or failure to perform resulting directly or indirectly from a force majeure event. This Agreement will be binding on, and will inure to the benefit of, the parties and their respective successor and permitted assigns. Both parties agree that this Agreement, as well as any and all claims arising from this Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to its conflicts of law rules, and the parties irrevocably submit to the exclusive jurisdiction and venue of the courts of Los Angeles County, California and the Central District Court of California, respectively. The parties are independent contractors and this Agreement does not create an agency, partnership or joint venture. This Agreement may be executed in multiple counterparts, each of which will constitute an original and all of which taken together will constitute one and the same Agreement. The counterparts of this Agreement may be executed and delivered by electronic means, and such electronic means shall be deemed original signatures for purposes of this Agreement.
All notices and other communications required or permitted to be given by WebMD Care to you under this Agreement will be deemed to be properly given on the date when sent by email to the email address for you last recorded by WebMD Care, or sent by postal mail or private courier to the postal address for you last recorded by WebMD Care. All notices and other communications required or permitted to be given by you to WebMD Care under this Agreement will be deemed to be properly given on the date when sent by postal mail or private courier to 909 N. Pacific Coast Highway, 11th Floor, El Segundo, CA 90245, Attention: Legal Department, with a copy sent to [email protected]
Business Associate Agreement (“BAA”)
This Business Associate Agreement (“BAA”), is entered into by and between MH Sub I, LLC, (“Business Associate”) and you (“Healthcare Provider”), (each a “Party” and collectively the “Parties”), who have entered into a Service Agreement (“Agreement”) with Business Associate (“the Services”).
Whereas the use and disclosure of certain health-related information, the electronic transmission of certain health-related information, and the security of certain health-related information is regulated by the privacy and security provisions of the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations widely known thereunder, as amended and supplemented by the HITECH Act, Subtitle D of the Health Information Technology for Economic and Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, 42 U.S.C. §§ 17921-17954, and its implementing regulations, as each is amended from time to time (collectively referred to as “HIPAA”).
Whereas Healthcare Provider, from time to time, discloses Protected Health Information (“PHI”), as defined in this BAA, and Business Associate, from time to time, uses, creates and/or maintains PHI, and/or electronically transmits PHI; and both Parties are committed to complying with HIPAA and the Parties agree to enter this mutually acceptable BAA as necessary to so comply.
This BAA hereby amends and is incorporated into any underlying Agreement between Healthcare Provider and Business Associate. With the exception of the terms and conditions set forth in this BAA, all other terms and conditions of the Agreement shall remain unaltered and in full force and effect. To the extent that the provisions of this BAA conflict with those of an underlying Agreement, the provisions of this BAA shall control. Capitalized terms used but not otherwise defined herein shall have the same meaning as those terms defined in the Privacy Rule and Security Rule.
If in the provision of Services to Healthcare Provider, Business Associate representatives may receive or have access to PHI that is created and/or maintained by Healthcare Provider, Business Associate and Healthcare Provider shall be bound by the following terms:
1. Permitted Uses and Disclosures.
2. Business Associate Obligations. Business Associate shall agree to the following:
3. Healthcare Provider Obligations. Healthcare Provider agrees to:
4. LIMITATION OF LIABILITY; INDEMNIFICATION.
5. Term and Termination.
6. Agreement. This BAA constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements between the Parties, whether oral or written, with respect to the subject matter of this BAA. Any ambiguity in this BAA shall be resolved to permit Healthcare Provider to comply with HIPAA. This BAA may be amended only in writing signed by Healthcare Provider and Business Associate. The parties agree to take such action to amend this BAA as is necessary to comply with the requirements of HIPAA. This BAA and the rights and obligations of the parties hereunder shall in all respects be governed by, and construed in accordance with, the laws of the State of California, including all matters of construction, validity and performance. Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts residing in Los Angeles County, California and the Central District Court of California, respectively arising out of any disputes of this BAA. Nothing express or implied in this BAA is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever. Any provisions of this BAA that by their terms are intended to survive, shall survive the termination of this BAA. Business Associate and Healthcare Provider are and shall remain independent contractors throughout the term. Nothing in this BAA shall be construed to constitute Business Associate and Healthcare Provider as partners, joint venturers, agents or anything other than independent contractors. A waiver with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events. This BAA shall be binding upon the Parties and their successors and permitted assigns.