Last Updated: April 15, 2018
These General Terms and Conditions (these “Terms”) are offered to you by WebMD LLC and other related entities and affiliates (collectively, “WebMD,” “we,” “us,” “our”) and govern your subscription for a profile page on the Physician and Dentists Enhanced Profile page on webmd.com, including the ability to place a business summary, photo and links to your website on the profile page and an account hosted by us to store consumer inquiries (“Services”). These Terms, together with the terms for each Enhanced Profile Subscription (“Enhanced Profile Subscription”) and any and all other policies or procedures related to the use of the Services set forth on or otherwise provided through www.webmd.com or any of our affiliated websites (collectively, the “Site”) as updated from time to time by WebMD (“Additional Terms”) constitute a binding, legal agreement between you and WebMD (collectively, the “Agreement”). Your continued use of the Services after any such change takes effect will be deemed to constitute your acceptance of any such change and your agreement to the new terms. In the event of a conflict between an Enhanced Profile Subscription and these Terms, the Enhanced Profile Subscription will govern such conflict. This Agreement will be effective as of the date you click “Submit Payment and Agreement” (“Effective Date”).
You will pay WebMD for the Services according to the fees set forth in the applicable Enhanced Profile Subscription. 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 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 made via telephone by calling the telephone number listed on your Enhanced Profile Subscription and speaking with a WebMD representative. Cancellations by voicemail will not to be accepted. WebMD 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, are responsible for all Content that you (or WebMD 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 account or profile.
You grant to WebMD 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 on the Site and 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 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 the license granted above. You acknowledge that Site 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 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 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 Site or Services.
This Agreement commences on the Effective Date, and continues through the latest expiration of all Enhanced Profile Subscription(s) 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 the pro rata fees for such Services through the date the Services ceased to be provided.
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 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 and any third party. WebMD 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 reserves the right to release current or past information related to you if WebMD 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 promptly of any changes or inaccuracies in the Content of which you 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 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 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 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.
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.
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. YOUR USE OF THE SERVICES DOES NOT CONSTITUTE A BUSINESS ASSOCIATE RELATIONSHIP WITH WEBMD SUBJECT TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND ITS IMPLEMENTING ADMINISTRATIVE SIMPLIFICATION REGULATIONS (“45 CFR 160-164”) (“HIPAA”), SUBTITLE D OF THE HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINICAL HEALTH ACT (“HITECH”), AND THE OMNIBUS RULE OF 2013 (“OMNIBUS RULE”). 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 SITE 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 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 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 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, 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. 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. If you breach this confidentiality provision, WebMD 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 a secure and reliable Site and 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 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. WebMD 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 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, or sent by postal mail or private courier to the postal address for you last recorded by WebMD. All notices and other communications required or permitted to be given by you to WebMD under this Agreement will be deemed to be properly given on the date when sent by postal mail or private courier to 909 N. Sepulveda Blvd., 11th Floor, El Segundo, CA 90245, Attention: Legal Department.