Effective date: January 1, 2020

Ethera Care Inc.  Terms of Service

This Terms of Service Agreement (the “Agreement”) is a legal agreement between you and Ethera Care, Inc., a Delaware Corporation (“Company” or “we” or “us”) for use of the Ethera website found at https://www.myethera.com/ (“Site”), the related mobile applications (“Applications”), and all services, features and content offered by the Company (collectively, the “Service”). Our users include our healthcare service providers who use the Service as a medium to provide services to their patients (“Providers”), as well as patients and prospective patients who use the Service to connect with or search for healthcare providers (“Clients”).  Providers may be individuals or entities.  All users of the Service may be collectively referred to herein as “you” or “User”.

1. Acceptance of Terms

Please read this Agreement carefully. By creating an account or accessing or using the Service or any part of it, you acknowledge that you (on behalf of yourself and/or the entity you are registering for Service for) accept and agree to be bound by the terms of this Agreement. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS THE SERVICE. We may modify this Agreement from time to time. Any amended terms shall automatically take effect 10 days after they are posted on this Site. Your use of the Service following the effective date of any modifications to this Agreement will constitute your acceptance of the Agreement, as modified. You agree that notice on the Site of modifications is adequate notice.

2. Registration and Eligibility

When creating or updating an account on the Service (“Account”), you may be required to provide the Company with certain personal information. This information will be held and used in accordance with the Company’s Privacy Policy. You agree that you will supply accurate and complete information to the Company, and that you will update that information promptly after it changes. You further agree that: – You shall not create an Account or access the Service if you are under the age of 13; – If you are between the ages of 13 and 17, you represent that your legal guardian has reviewed and agreed to this Agreement; – You shall not have more than one Account at any given time, and shall not create an Account using a false identity or information, or on behalf of someone other than yourself; – You shall not have an Account or use the Service if you have been previously removed by the Company.

3. Limited License

The Company grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Service for your own use subject to the other terms of this Agreement. Furthermore, if you are a Provider, the Company grants you a limited, revocable, non-exclusive, non-transferrable license to access and use the Service for your individual or internal purposes, subject to the terms of this Agreement.

4. Privacy Policy

Our Privacy Policy describes how we collect, process, use, share, safeguard, and otherwise handle your personal information.   The Privacy Policy is incorporated herein by reference and your acceptance of this Agreement constitutes acceptance of our Privacy Policy.  Please review the Privacy Policy carefully before accepting this Agreement.

5. Fees

If you purchase any of our paid services, you agree to pay us the corresponding fees. Any subscriptions will renew for the original subscription period unless cancelled in accordance with the cancellation procedures available on the Site and/or Applications. You agree that we may use your payment information to charge you for subscription renewals. The Company currently uses Stripe to process payments.  In order to use payment processing services and the billing services (“Stripe Payment Processing Services”), you must agree to the Stripe Connected Account Agreement (https://stripe.com/us/connect-account/legal) and any other applicable Stripe agreement (incorporated herein by reference) that is available to you when you enroll in the Service and afterward through the Service. No transactions will occur in your Company 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:

• Company may conduct certain activities related to the Stripe Payment Processing Services such as communication of information about transactions and refunds, Stripe account balance adjustments, the handling of disputes (including chargebacks), as well as other features as described in the Stripe documentation.
• Certain use, recurring, or application fees may be charged to you for your use of the Stripe Payment Processing Services.
• You will comply with all terms and conditions of your Stripe Connected Account Agreement and not violate such agreement including processing payments from the Prohibited Business List provided in the Stripe Connected Account Agreement.
• Stripe may suspend or terminate the provision of Stripe Payment Processing Services in accordance with the terms of the Stripe Connected Account Agreement.
• Company may use and may share with Stripe, and Stripe may use and share with Company, all Transaction Data, Payment Data, data about your Account, your activity on their Stripe accounts, and transactions. In addition, You hereby grant permission to Company to work with and interact with Stripe, in order to copy your Transaction Data, Payment Data, and User Data from your Account to the Service and your related account, for the benefit of facilitating or improving use or interoperability of the Stripe credit card processing services with the Services. As a condition of Company enabling payment processing services through Stripe Payment Processing Services, you must provide Company accurate and complete information about you and your practice and business.
• You agree that in the event that Company, or Stripe (or other payment processor) is required under applicable law to obtain Your consent in order to send you tax forms, tax notices or tax returns (including informational returns such as 1099s) by e-mail or other electronic format, that you hereby provide your consent to Company, or Stripe (or other payment processor), as applicable, to send you such notices, forms and returns by e-mail or other electronic format.

“Stripe” is a registered trademark of Stripe, Inc. If you have access to paid services through another person’s payment (e.g., your employer or Provider), in addition to the terms of the Stripe Connected Account Agreement, the following applies:

• We reserve the right to cause Stripe to hold back funds received in your Stripe account for up to 45 business days prior to making the funds available to you.
• In the event of a chargeback on any payment method (e.g., ACH, credit card, debit card), you will be responsible to refund (or allow Company to chargeback from you) the fee imposed on Company by the payment processor.
• In the event that your payment account becomes negative, Company reserves the right to draw from or chargeback your account or reimburse itself until the account no longer has a negative balance.
• Company reserves the right to suspend your Stripe account in the event of excessive disputes or chargebacks.
• Company reserves the right to withhold payment to you of the funds in your Stripe account to review for suspicious or fraudulent activity and to prevent payouts during the review period.

Company reserves the right to refund transactions that have been classified as fraudulent after investigation.

6. Changes to the Service

From time to time and without prior notice to you, we may change, expand and improve the Service. We may also, at any time, cease to continue operating part or all of the Service or selectively disable certain aspects of the Service or portions of the Site. Any modification or elimination of the Service will be done in our sole discretion and without an ongoing obligation or liability to you, and your use of the Site and Service do not entitle you to the continued provision or availability of the Service.

7. Your Use of the Service

As a condition of using the Service, you agree not to use the Service for any purpose that is prohibited by this Agreement. You are responsible for all of your activity in connection with the Service and you shall abide by all local, state, national, and international laws and regulations and any applicable regulatory codes. You agree to the following: – You may not share your Account information or permit anyone to access your Account – You may not resell, rent, lease, loan, sublicense, distribute, or otherwise transfer rights to the Service – You may not modify, reverse engineer, decompile or disassemble the Service – You may not copy, adapt, alter, modify, translate, or create derivative works of the Service without written authorization of the Company – You may not circumvent or disable any technological features or measures in the Service for protection of intellectual property rights – You may not use the Service in an attempt to, or in conjunction with, any device, program, or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction – You may not use or access the Site or Service to compile data in a manner that is used or usable by a competitive product or service – You shall not use the Service to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages to anyone – You shall not use the Service to engage in any harassing, threatening, intimidating, predatory or stalking conduct. – You shall not use the Service to engage in any illegal conduct Any such forbidden use shall immediately terminate your license to the Service.

8. Provider Responsibilities

Without limiting the generality of Section 7:

1. Providers must comply with The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), all state counterparts, and any other applicable data privacy laws. Without providing any representations as to whether Provider will be in compliance with HIPAA by doing so, Provider and Company agree to be bound by the terms and conditions of the Business Associate Agreement (“BAA”), which is accessible at https://www.staging.myethera.com//baaand which is incorporated herein by reference. If any provision hereof is potentially or actually in conflict with the provisions of the BAA, the terms of the Business Associate Agreement shall prevail.
2. Providers must hold all required licensure to practice in order to offer services through the Service. Provider must immediately notify the Company in writing if it has failed to maintain such licensure, or upon any disciplinary proceedings by its licensing board.

9. User Content

“User Content” means any communications, images, sounds, and all the material, data, and information that you upload or transmit through the Service, including End User test responses and profile information. By transmitting or submitting any User Content while using the Service, you affirm, represent and warrant that such transmission or submission is (a) accurate and not confidential; (b) not in violation of any applicable laws, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the User Content; (c) free of viruses, adware, spyware, worms or other malicious code; (d) not unauthorized advertising or “spamming”; (e) not unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent, and (f) you acknowledge and agree that any of your personal information within such content will at all times be processed by the Company in accordance with its Privacy Policy. You hereby grant Company and a perpetual, irrevocable, worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content related to Ethera, whether a blog post, photos related to Ethera, testimonials, etc., as well as all modified and derivative works thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content.

10. Copyright Policy

The Company has implemented the following policy to help respect the ownership rights of creators: In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found at https://www.copyright.gov/legislation/dmca.pdf, the Company will respond expeditiously to claims of copyright infringement on the Site or through the Service. If you are a copyright holder and believe that your copyrighted material is being infringed on the Site or Service, you may provide our designated agent (listed below) with a written notice (“Infringement Notice”) containing the information below. Your Infringement Notice may be forwarded to the party that made the content available. In order to file an Infringement Notice, please provide us with the following information: – An identification of the copyright claimed to have been infringed; – A description of the nature and exact location (URL if available) of the content that you claim to infringe your copyright; – Your name, address, telephone number and email address; – A statement by you (the copyright holder or such owner’s agent): (a) that you believe in good faith that the use of the content that you claim to infringe your copyright is not authorized by law; (b) that all of the information contained in your Infringement Notice is accurate; and (c) under penalty of perjury, that you are the copyright owner or a person authorized to act on their behalf; – A physical or electronic signature of the copyright owner or other person authorized to act on their behalf; Such Infringement Notice may be sent to: Ethera Care, Inc. 3 Pointe Dr. Suite 217 Brea, CA 92821

11. Account Security

Your account may not be shared, except as authorized under a multi-user or multi-administrator subscription agreement. You are solely responsible for activity that occurs on your account and it is your responsibility to protect your personal data and maintain the confidentiality of your user information and password. You are also responsible for immediately notifying the Company of any unauthorized use of your account, or breach of your account information or password. The Company will not be liable for any loss that you may incur as a result of someone else using your username or password, either with or without your knowledge. To the extent allowable by law, you shall be liable for any expenses and reasonable attorney’s fees for your failure to safeguard user and password information and/or promptly notify the Company about unauthorized use of your account or breach of your account information or password.

12. Enforcing Security

Actual or attempted unauthorized use of the Service may result in criminal and/or civil prosecution. For your protection, we reserve the right to view, monitor, and record activity on the Service without notice or further permission from you, to the fullest extent permitted by applicable law. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Site.

13. Third Party Links

The Service may give you access to links to third-party websites (“Third Party Sites”). The Company does not endorse any of these Third Party Sites and does not control them in any manner. Accordingly, the Company does not assume any liability associated with Third Party Sites. You need to take appropriate steps to determine whether accessing a Third Party Site is appropriate, and to protect your personal information and privacy on such Third Party Site.

14. Indemnity

User Indemnification. You hereby agree to defend, indemnify, and hold harmless Company (including its officers, directors, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, affiliated companies, and insurers) from any third party claim, suit, or proceeding arising out or related to (a) your alleged or actual use of, misuse of, or failure to use the Service; (b) claims by patients of Provider for matters relating to Provider’s provision of or failure to provide services; (c) claims alleging failures of the Service, security breaches, and faults in the Service leading to the release or exposure of personally identifiable information or other private data (whether such data belongs to a User, a patient, or to other third parties); and (d) claims arising from your alleged or actual negligence, breach of this Agreement, or other violation of any law or the rights of a  third party. Your obligations set forth in this Section 14 include, without limitation, payment of losses, damages, judgments, settlements, attorneys’ fees, and other expenses and costs. Without limiting your rights or remedies, Company will have the right to refuse any settlement that restricts its rights granted under this Agreement, requires an admission of wrongdoing or liability, or subjects it to any ongoing obligations.

15. Warranty Disclaimer

THE SERVICE IS INTENDED TO BE A MEDIUM FOR HEALTHCARE PROVIDERS AND PATIENTS TO CONNECT.  THE COMPANY DOES NOT OFFER ANY HEALTHCARE SERVICES AND MAKES NO REPRESENTATIONS ABOUT THE HEALTHCARE PROVIDERS ON THE SERVICE. THE SERVICE AND ALL OF ITS COMPONENT PARTS ARE PROVIDED “AS IS”, “AS AVAILABLE” AND ARE PROVIDED WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, SAVE TO THE EXTENT REQUIRED BY LAW. THE COMPANY, AND ITS DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SITE AND SERVICE IS SOLELY AT YOUR OWN RISK. SOME STATES / COUNTRIES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

16. Limitation of Liability

IN NO EVENT SHALL THE COMPANY, ITS OFFICERS, DIRECTORS, AGENTS, AFFILIATES, EMPLOYEES, ADVERTISERS, OR DATA PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA) WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EQUITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THIS SITE, SERVICE, OR USER CONTENT.  IN NO EVENT WILL THE COMPANY’s TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR USE OF OR INABILITY TO USE THE SERVICE, EXCEED THE AMOUNT YOU HAVE PAID TO THE COMPANY FOR USE OF THE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM, OR ONE HUNDRED DOLLARS ($100) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO THE COMPANY, AS APPLICABLE. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE SERVICE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

17. Termination

The Company may terminate your license to use the Service with or without cause at any time, with or without notice. Should you breach this Agreement or fail to comply with any term of this Agreement, your right to use the Service shall terminate immediately and without notice. If you are a patient or employee of a Provider and your access to the Service is paid for or otherwise provided through a Provider, then your access to the Service is subject to an agreement between the Company and such Provider.  Accordingly, upon termination of that agreement, or for any other reason, your access to the Service may be terminated. You may also choose to terminate this Agreement by simply discontinuing use of the Service. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

18. Miscellaneous

Any dispute arising from this Agreement shall be governed by the laws of the State of California without regard to its conflict of law provisions. SOLE AND EXCLUSIVE JURISDICTION FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE IN AN APPROPRIATE STATE OR FEDERAL COURT LOCATED IN SAN FRANCISCO COUNTY, STATE OF CALIFORNIA AND THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL. Any cause of action you may have with respect to your use of the Site and Service must be commenced within one (1) year after the claim or cause of action arises. If for any reason a court of competent jurisdiction finds any provision of this agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. A printed version of this agreement shall be admissible in judicial or administrative proceedings.

19. No Class Actions

All claims between the parties related to this Agreement will be litigated individually and the parties will not consolidate or seek class treatment for any claim, unless previously agreed to in writing by the parties. BY USING THE SERVICE OR ACCESSING THE SITE OR SERVICE, YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. Questions and Comments If you have any comments or questions on any part of the services or any part of this Terms of Service, please feel free to contact hello@myethera.com/.