Terms of Use

THESE TERMS OF USE CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CERTAIN CIRCUMSTANCES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS.

DAYMARK HEALTH SERVICES MAY NOT BE APPROPRIATE FOR ALL MEDICAL CONDITIONS OR CONCERNS. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY OR MENTAL HEALTH CRISIS, CALL 911 OR GO TO THE NEAREST EMERGENCY ROOM.

Daymark Health Terms of Use

The following Terms of Use (“Terms” or “Agreement”) govern your use of and access to Daymark Health’s websites, including the use of any electronic health record or other applications (hereinafter “Website” or “Site”); online and/or mobile communication services; in-person healthcare and telehealth services; and care management and navigation services (collectively, the “Services”). The Services are provided by Daymark Health Inc. (“Daymark Health”), its agents, and Daymark Health (DE), LLC healthcare providers (collectively, “we,” “us,” “our,” or “Daymark Health”) and are accessed from time to time by you (a “user” or “you”). Daymark Health and the user are hereinafter collectively referred to as the “Parties”.

BY ACCESSING THE SITE OR USING OUR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND AND COMPLY WITH THESE TERMS OF USE.

If you do not or cannot agree with any part of these Terms of Use, you may not use the Services. These Terms of Use are subject to change as provided herein.

Additional Terms

Your access to and use of the Services may be subject to further terms, Healthcare Informed Consents, or additional authorizations (“Additional Terms”). Additional Terms may either be linked from the Terms of Use or will be provided to you for your understanding and acceptance when you engage with Daymark Health or otherwise use our Services. All Additional Terms and Consents are incorporated into the Terms by reference.

If the Terms are inconsistent with the Additional Terms, the Additional Terms control with respect to such Service. If you do not agree to the Additional Terms and Informed Consents, you may not be able to use all of the Services.

We reserve the right to modify or supplement these Terms at any time and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access or use the Services.

1. Overview of Daymark Health Services

Daymark Health has partnered with health care providers and health plans to provide patients with access to care management and navigation services, in-person healthcare services, and/or telehealth clinical care and support services during their cancer treatment journeys.

Although Daymark Health Inc. does not provide any medical services, it coordinates and provides administrative, technological, operational, and communication tools and services to support Daymark Health (DE) LLC. Daymark Health (DE) LLC employs or contracts with healthcare providers (“Daymark Providers”) to offer and coordinate a range of clinical and healthcare services, including in-person and virtual telehealth care, electronic care communication and engagement, and other healthcare support services (“Care Services”).

Daymark Providers who deliver the Care Services are independent professionals practicing within independently owned professional practices. Use of Daymark Health and Daymark Providers are not a substitute for insurance.

Daymark Health Inc. does not practice medicine or any other licensed profession and does not interfere with the practice of medicine or any other licensed profession by the Daymark Providers, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license.

Neither Daymark Health Inc. or any third parties who promote the Services or provide you with a link to the Services shall be liable for any professional advice you obtain from a Daymark Provider via the Services.

Depending on your health-care provider’s or health plan’s agreement with us and your geographical location, your use of the Services may be limited. By registering and using the Services, including Care Services, you acknowledge and agree that:

• The Care Services, whether virtual or in-person, are not intended to replace a full medical evaluation or an in-person visit with your oncologist or primary health-care provider.
• Daymark Providers acting through the Services may prescribe a limited range of medications for supportive care (e.g. side effects, symptoms, and other primary care conditions).
• Daymark Providers will not alter or initiate oncology treatments (e.g. chemotherapy, radiation, surgery) without consultation from your oncology provider.

IN THE EVENT OF A MEDICAL EMERGENCY, USERS SHOULD CALL 911 OR PROCEED TO THE NEAREST EMERGENCY ROOM AND SHOULD NOT RELY ON DAYMARK SERVICES.

2. Site Content

Daymark Health Inc. provides the Site to our users and the public for educational and informational purposes only and to access the Services. Information provided through this Site should in no way be understood to be the practice of medicine, formation of a patient-provider relationship, provision of health care or a cancer diagnosis, provision of medical advice, or a substitute for a call, visit, consultation or advice from your regular health care providers.

3. Privacy

Daymark Health understands the importance of privacy and confidentiality regarding your health and personal information. Please see our Privacy Policy and our Notice of Privacy Practices for information about how we collect and use your personal and health information. Our Privacy Policy and Notice of Privacy Practices are hereby incorporated into these Terms of Use by reference and constitute a part of these Terms of Use.

4. Account Enrollment, Security, and Termination

To receive or access specific features and functions of Services, Sites, or applications provided by Daymark, users may be required to submit, register, or provide certain information either online or through in-person enrollment to create an account (“Account”).

a. Account Enrollment

In order to access Services, you agree and acknowledge that you are at least eighteen (18) years old, and that you will provide us with private information about you, or your minor child, through an online, telephone, or in-person submission. After Daymark determines your, or your child’s, eligibility to receive the specific Services, we may create an Account for you, which you may use from time to time to access the Services. You agree that any and all information that you provide to Daymark through use of any Services will be complete and accurate.

b. Account Security

For any Account you cause to be enrolled or created, you agree that you are responsible for maintaining the confidentiality of your private information and are fully responsible for all activities that occur under your Account or password. You agree to immediately notify us of any unauthorized use, suspected unauthorized use, or any other breach of security of your Account by contacting us at support@daymarkhealth.com.

We are not liable for any loss or damage arising from your failure to comply with the above requirements regarding your Account. We reserve the right to take any and all reasonable and necessary action to protect the security of the Services and your Account information. We strongly recommend that you do not use the Services on public computers. We also recommend that you do not store your Account password(s) through your web browser or other software.

c. Account Termination

We reserve all rights to terminate any Account for misuse or violation of any of these Terms. You may request to terminate your Account at any time by contacting us at support@daymarkhealth.com.

5. Electronic Communication, Emails, Text Messages, and Phone Calls

Daymark Health uses various methods of telephone and electronic communications to provide you with the Services. When you use the Site to submit information, communicate with us via telephone, or otherwise agree to receive Services from Daymark, you are agreeing to our use of email, phone calls, and “text messages” which include, but are not limited to, Short Message Service (“SMS”) and Multimedia Message Service (“MMS”) messages to receive some, or all, of the Services.

To receive the full benefit of Daymark’s Services, you must separately agree to the terms of the Daymark Text Message Program, which is hereby incorporated into these Terms of Use.

a. Electronic Notices & Email Communication

During enrollment, or through your use of the Services, you agree that we can send you any privacy or other notices, disclosures, consents, or communications regarding enrollment in the Services through electronic means that include, but are not limited to, emails and text messages, push notifications to your mobile device, or by posting on the Site.

You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

You agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms. The delivery of any communications from us is effective when sent by us, regardless of whether you read the communication when you receive it or whether you actually receive the delivery.

b. Security of Electronic Communications

Even though Daymark takes steps to protect the privacy and security of your information and communications, you understand that sending any information through internet and mobile carriers cannot be 100% secure. Text messages and emails that you send to, or receive from, Daymark are not encrypted, which means that it is possible the communications may be read or intercepted by third parties.

If you choose to send or receive information about your health or any other sensitive information by text message or email, you do so at your own risk. You agree that by emailing Daymark or giving us your email, you consent to receiving unencrypted email messages. You may always change your communication preferences by emailing support@daymarkhealth.com or by calling 866-799-7855.

c. Daymark Text Message Program

i. Opting-In

Eligible Daymark users over the age of 18 may opt-in to participate in the Daymark Text Message Program. You may opt-in when you initially speak with a Daymark representative or a Daymark Provider, by visiting our Site and submitting the Daymark Health SMS Opt-In, or by making any other Service request and agreeing to the terms of the Daymark Text Message Program.

When you opt-in to the program, you consent to receiving text messages regarding your Account and for use of the Services. These text messages may include, but are not limited to, appointment reminders, check in messages, communications from a Daymark Provider, and other messages relating to your care.

TEXT MESSAGE SERVICES MAY NOT BE USED TO REPORT A MEDICAL EMERGENCY.

The number of text messages you receive from Daymark may vary. You may also receive marketing messages, to the extent you have opted-in to marketing communications from Daymark.

ii. Opting-Out

Access to other Daymark Services is not conditioned upon your consent to receive care and/or marketing related text messages from Daymark. You have the right to opt-out of Daymark text messages at any time by replying “STOP” to the message received, from the enrolled mobile device.

After you send the text message “STOP” to us, we may send you one final text message to confirm that you have been unenrolled. If you have opted-in to receive more than one type of text message from Daymark, you will need to opt-out of each Daymark text message type to which you are enrolled. Until you have done so, you may continue to receive the types of text messages from Daymark that you have opted-in to receive, but have not unenrolled from.

You may also opt-out of receiving text messages by contacting us at support@daymarkhealth.com.

d. Phone Calls

Your health care provider or health insurer may have provided us with your phone number prior to your use of the Site or Services. Therefore, you may receive telephone communications from Daymark Health or its affiliates prior to your use of the Services or acceptance of our Terms, Privacy Policies, and other enrollment documents.

During this initial communication, we may ask you to provide us with your express verbal consent to continue a conversation, or to provide follow up information (e.g., enrollment or marketing materials) via email or text message about the potential use of our Services. We will also tell you on the phone how to revoke your consent to receive follow up calls and communications.

You may always revoke your consent to receive certain phone call communications, or to update your phone call preferences by contacting us at support@daymarkhealth.com.

6. Ownership & License to Use the Services

You understand and agree that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets in the Services and its content are owned by Daymark Health, or Daymark Providers and is protected by U.S. and international copyright laws. The compilation of the Service is also the exclusive property of Daymark Health and is protected by U.S. and international copyright laws.

These Terms and your use of Services do not give you any rights, title or interest in or to any intellectual property rights, except for the limited access rights expressed in these Terms.

Daymark Health (or its Affiliates) reserve all rights not expressly granted herein. Any unauthorized use of the Services terminates the licenses granted by Daymark Health pursuant to the Terms.

7. User Content and Our License to Use Such Content

Except as provided in our Privacy Policy, Notice of Privacy Practices, or otherwise governed by applicable state-specific or federal (e.g. HIPAA) privacy laws and regulations, you understand and agree that any information data, text, software, photographs, graphics, video, messages, feedback, suggestions, and other materials you provide through any use of Services (“User Content”) will be treated as non-confidential and non-proprietary and become the property of Daymark Health and/or Daymark Providers.

Except as provided in our Privacy Policy and Notice of Privacy Practices or subject to any applicable laws, User Content may be used by Daymark for any purpose, including, without limitation, reproduction, solicitation, disclosure, transmission, publication, broadcast, and posting, and Daymark shall be free to use such User Content for any purpose whatsoever.

You hereby grant Daymark, our service providers, our successors and assigns, and our Affiliated Entities, the fully transferable and sublicensable right and license to use, reproduce, modify, analyze, perform, display, distribute, and otherwise disclose to third parties any data or information you submit on or through the Services for the purposes of providing Services to you; marketing Services to you; conducting research or analyses of such data; and designing, developing, implementing, modifying and/or improving new, current or future features, products and services of Daymark using such data.

You understand that any User Content you publish in public forums will be viewable and copyable by other users of the forum and potentially the public at large. You are exclusively responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy and completeness.

We reserve the right to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate these Terms of Use or otherwise create liability for us or any other person. Our actions may include, but are not limited to, removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities.

You agree to refrain from abusive or obscene language and inappropriate behavior, or conduct that is unlawful or illegal, when communicating with Daymark Providers or Daymark Health personnel, affiliates or agents involved in providing and supporting the Services in which you participate.

WITHOUT LIMITATION OF THE FOREGOING, DAYMARK HEALTH DOES NOT ASSUME RESPONSIBILITY OR LIABILITY FOR THE USER CONTENT FOUND IN ANY PUBLIC FORUM, NOR FOR ANY CLAIMS, DAMAGES OR LOSSES RESULTING FROM ANY USE OF ANY PUBLIC FORUM OR THE USER CONTENT CONTAINED HEREIN.

8. Restrictions of Use

You agree that in using or accessing the Services, you will not attempt to:

• Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
• Use the Services to violate any local, state, national or international law;
• Reverse engineer, disassemble, decompile, or translate any software or other components of the Services;
• Engage in any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services;
• Post any User Content that (i) violates any third-party right or any intellectual property or proprietary right; (ii) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual; (iii) is harmful to minors in any way; (iv) attempts to obtain the personal information of other users; or (v) is in violation of any law, regulation, or obligations or restrictions imposed by any third party;
• Send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages;
• Use the Services to harvest, collect, gather or assemble information or data regarding other users without their consent;
• Harass or interfere with any other User’s use and enjoyment of the Services;
• Bypass, breach, avoid, remove, deactivate, impair, descramble, or otherwise circumvent any security device, protection, or technological measure implemented by Daymark or any of our service providers to protect the Services; or
• Otherwise use the Services in any manner that exceeds the scope of use granted herein.

9. Third Party Links, Ads, and Other User Content

Daymark Health Services may contain links to third-party websites and services, and/or display advertisements for third-parties. Such Third-Party Links & Ads are not under Daymark Health’s control, and Daymark Health is not responsible for any Third-Party Links & Ads.

Daymark Health provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so.

When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy statements, cookies policies, and data gathering practices.

Users of the Services are solely responsible for all of their own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. You agree that we will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.

10. Dispute Resolution and Arbitration

Dispute Resolution (including Arbitration, Class Action Waiver and Time to Initiate Action)

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

a. Initial Dispute Resolution Period

Our support team is available at support@daymarkhealth.com to address any concerns you may have regarding the Services. Most concerns are quickly resolved in this manner.

In an effort to accelerate resolution and reduce the cost of any Dispute (defined below) between us, you and we agree to first attempt to negotiate any Dispute informally for at least sixty (60) days before either party initiates any arbitration or court proceeding (the “Initial Dispute Resolution Period”). That period begins upon receipt of written notice from the party raising the Dispute.

If we have a dispute with you, we will send the notice of that Dispute to the email address you have provided to us. If you have a dispute with us, you agree to send us a written notice by email to: legal@daymarkhealth.com.

A notice of Dispute will not be valid, and will not start the Initial Dispute Resolution Period, and will not allow you or us to later initiate a lawsuit or arbitration, unless it contains all of the information required by this paragraph:

• Subject line reading: “Notice of Dispute”;
• Description of the nature of the claim or dispute and the underlying facts;
• Date upon which the Dispute arose;
• The specific relief sought; and
• Name, email address, and physical mailing address of the party seeking relief.

The Initial Dispute Resolution Period must include a conference between you and us to attempt to informally resolve any Dispute in good faith. You will personally appear at the conference telephonically or via videoconference; if you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same conference unless all parties agree.

Compliance with this informal dispute resolution process is mandatory and a condition precedent to initiating an arbitration or litigation. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

If either party violates this Initial Dispute Resolution Period paragraph, a court of competent jurisdiction has the authority to enjoin the prosecution of the arbitration or court proceeding, and, unless prohibited by law, the arbitration provider shall neither accept nor administer any such arbitration nor assess fees in connection with such arbitration.

b. Scope

The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).

You and we agree that any dispute, claim or controversy between you and Daymark Health asserted after the effective date of these Terms, including but not limited to all disputes arising out of these Terms or your use of the Services (each, a “Dispute”) shall be finally settled by binding arbitration except as expressly excluded below in the Section titled “Exceptions to Binding Arbitration.”

c. Binding Arbitration

If you and we do not reach an agreement to resolve the Dispute following the Initial Dispute Resolution Period (and including the conference of the parties provided in the preceding paragraph), you or we may commence an arbitration proceeding. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) and in accordance with the Expedited Procedures in those Rules, which are available at www.jamsadr.com, unless it is a Mass Arbitration before NAM, as defined below.

If, for any reason, JAMS is unable to provide the arbitration, then except as otherwise stated below, you or we may file a Dispute with any national arbitration company that handles consumer arbitrations following procedures that are substantially similar to the JAMS Expedited Procedures in the JAMS Comprehensive Arbitration Rules.

i. Process

In order to initiate arbitration following the conclusion of the Initial Dispute Resolution Period, a party must provide the other party with a written demand for arbitration and file the demand with the applicable arbitration provider. A party initiating an arbitration against Daymark Health must send the written demand for arbitration to Daymark Health, Inc., ATTN: Legal Counsel, 701 E Cathedral Rd Ste 45 #3076 Philadelphia, PA 19128.

By signing the demand for arbitration, the party and its counsel certifies to the best of the party’s and counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that:

• The demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution;
• The claims and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
• The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
• The party has complied with the Initial Dispute Resolution Period, including participation in an in-person conference, as described above.

The arbitrator shall be authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or any applicable state law for either party’s violation of this requirement.

ii. Location & Hearing

If you are a resident of the United States, then the arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If you are not a resident of the United States, then the arbitration hearing will be held in Philadelphia County, Pennsylvania, United States, or another mutually agreed location.

Where no disclosed claims or counterclaims exceed $25,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Daymark Health may attend remotely, unless the arbitrator requires otherwise.

The language of the arbitration will be English.

iii. Arbitrator’s Decision

The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law. The decision of the arbitrator shall be final and binding on you and us, and any award of the arbitrator may be entered in any court of competent jurisdiction.

The arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration. The arbitrator has authority to decide all issues of validity, enforceability, or arbitrability. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity.

iv. Fees

Your and our right to recover attorneys’ fees, costs and arbitration fees shall be governed by the laws that apply to the parties’ Dispute, as well as any applicable arbitration rules. Either party may make a request that the arbitrator award attorneys’ fees and costs upon showing that the other party has asserted a claim, cross-claim, defense, or procedural tactic that is groundless in fact or law, brought in bad faith, for the purpose of harassment, or is otherwise frivolous, as allowed by applicable law and the JAMS Rules.

v. Mass Arbitration Before NAM

Notwithstanding the parties’ decision to have arbitrations administered by JAMS (and subject to the exceptions otherwise set forth in the “Exceptions to Binding Arbitration” Section), if 25 or more demands for arbitration are filed relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the parties submitting the demands are the same or coordinated, you and we agree that this will constitute a “Mass Arbitration.”

If a Mass Arbitration is commenced, you and we agree that it shall not be governed by JAMS Rules or administered by JAMS. Instead, a Mass Arbitration shall be administered by NAM, a nationally recognized arbitration provider, and governed by the NAM Rules in effect when the Mass Arbitration is filed, excluding any rules that permit arbitration on a class-wide basis (the “NAM Rules”), and under the rules set forth in these Terms.

The NAM Rules are available at https://namadr.com/resources/rules-fees-forms/ or by calling 1-800-358-2550. You and we agree that the Mass Arbitration shall be resolved using NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures, available at https://www.namadr.com/.

Before any Mass Arbitration is filed with NAM, you and we agree to contact NAM jointly to advise that the parties intend to use NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures. The individual demands comprising the Mass Arbitration shall be submitted on NAM’s claim form(s) and as directed by NAM.

You and we agree that if either party fails or refuses to commence the Mass Arbitration before NAM, you or we may seek an order from NAM compelling compliance and directing administration of the Mass Arbitration before NAM. Pending resolution of any such requests, you and we agree that all arbitrations comprising the Mass Arbitration (and any obligation to pay arbitration fees) shall be stayed.

If for any reason the provisions in this Mass Arbitration Before NAM paragraph are found to be unenforceable, or if for any reason NAM declines to administer the Mass Arbitration, then the Disputes comprising the Mass Arbitration shall be administered by AAA consistent with the provisions of the Dispute Resolution Section of these Terms.

1. Appointment of Procedural Arbitrator in Mass Arbitration

You and we agree to cooperate in good faith to implement the Mass Arbitration process to minimize the time, filing fees, and costs of the Mass Arbitration. Those steps include, but are not limited to:

• The appointment of a procedural arbitrator to efficiently and cost-effectively manage the Mass Arbitration and to rule on proposals by the parties for the efficient and cost-effective management of the Mass Arbitration to the extent the parties cannot agree; and
• The adoption of an expedited calendar for the arbitration proceedings.

d. Exceptions to Binding Arbitration

Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may invoke the following exceptions to arbitration:

i. Provisional Remedies

Either party may seek provisional remedies in aid of arbitration and to enforce the Initial Dispute Resolution Period from a court of appropriate jurisdiction, subject to the forum selection provisions below.

ii. Intellectual Property and Trade Secret Disputes

Either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, piracy, moral rights violations, trademark infringement, and/or trade secret misappropriation, subject to the forum selection provisions below.

iii. Small Claims Court

Either party may seek relief in a small claims court for any individual disputes or claims within the scope of that court’s jurisdiction. If an arbitration is filed, before the arbitrator is formally appointed either party can send written notice to the opposing party and the applicable arbitration provider that it wants the case decided by a small claims court, after which the arbitration provider may close the case, in which instance no filing fees shall be due or payable by either party.

Any disagreement about whether a Dispute is subject to small claims court shall be decided by small claims court or a court of competent jurisdiction, not the arbitrator.

e. Class and Collective Action Waiver

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION OR COLLECTIVE ACTION OR CLASS ARBITRATION.

f. Statute of Limitations

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

g. Forum

For any Dispute not subject to binding arbitration, to the fullest extent allowed by law, you and we agree to submit to the exclusive jurisdiction of any state or federal court located in Philadelphia County, Pennsylvania (except for small claims court actions which may be brought in the county where you reside), and waive any jurisdictional, venue, or inconvenient forum objections to such courts.

h. Severability

If any provision in this Dispute Resolution and Arbitration Section of these Terms is found to be unenforceable, that provision shall be severed with the remainder of this Section of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or collective actions as provided for above.

This means that if the prohibition against class or collective actions is found to be unenforceable with respect to a particular claim or request for relief and any appeals have been exhausted (or if the decision is otherwise final), then such claim or request for relief shall proceed in a court of competent jurisdiction, but it shall be stayed pending arbitration of all other claims and requests for relief.

i. 30 Day Right to Opt-Out

You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out by emailing us at legal@daymarkhealth.com.

The notice must be sent within thirty (30) days of your first use of the Service, or the effective date of the first set of Terms containing an Arbitration and Class Action and Class Arbitration Waiver section otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt out of these arbitration provisions, we also will not be bound by them.

11. Term & Termination

Subject to this Section, these Terms will remain in full force and effect while you use the Services. We reserve the right to terminate your access to the Services at any time, with or without cause, by providing you with notice through the email address we have on file.

We may terminate your Account or access to the Services at any time if we, in our sole discretion:

• Determine that you have violated these Terms;
• Your conduct or use of the Services violates applicable law or is harmful to our interests or any other User;
• In response to requests by law enforcement or other government agencies;
• Upon discontinuance or material changes to the Services;
• Upon the termination of your eligibility for the Services as determined by your health care provider or your health plan; or
• Due to unexpected technical issues or problems beyond our control.

Termination of your Account or access to the Services will terminate any rights and license provided to you in these Terms; however, termination will not limit any of our other rights or remedies. Any provision that must survive in order to give proper effect to the intent and purpose of these Terms shall survive termination.

12. Changes to the Terms of Use and the Services

We are consistently updating and developing our Terms of Use, and at any time, we reserve the right to review or remove any part of these Terms of Use in our sole discretion without prior notice to you. It is your responsibility to check the Terms of Use from time to time when using the Services to determine if any changes have been made.

All changes to these Terms of Use are effective upon posting to the Site unless applicable law requires us to provide additional notice or take other actions before such changes can become effective. If you disagree with these Terms of Use, your sole and exclusive remedy is to discontinue your use of the Services. Your continued use after a change has been posted constitutes your acceptance of the changes.

Moreover, you agree and understand that all or parts of the Services may not be accessible at any time, for any length of time, or for any reason. Daymark will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period.

Daymark reserves the right at any time and for any reason to modify, or temporarily or permanently discontinue, the Services or any portion thereof, with or without notice. You agree that Daymark shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.

13. Disclaimer of Warranties

YOU UNDERSTAND AND EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK.

TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS.

DAYMARK HEALTH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION.

14. Limitation of Liability

YOU UNDERSTAND THAT TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL DAYMARK HEALTH INC., DAYMARK PROVIDERS OR THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY/WRONGFUL DEATH, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE AND WHETHER OR NOT DAYMARK HEALTH WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE FULLEST EXTENT PERMITTED BY LAW, DAYMARK HEALTH SHALL BE LIABLE ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED U.S. $100.

To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.

15. Indemnification

To the fullest extent permitted by law, you will indemnify and hold Daymark Health, its parents, subsidiaries, affiliates (including without limitation Daymark Health (DE) LLC, and all other affiliated professional entities and their health care providers), officers, employees, agents, partners and licensors (collectively, the “Daymark Health Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of:

• Your violation of the Terms;
• Your User Content;
• Your violation of any rights of another party, including any users of the Services; and
• Your violation of any applicable laws, rules or regulations.

Daymark Health reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Daymark Health in asserting any available defenses. You agree that the provisions in this section will survive any termination of the Terms or your access to the Services.

16. Geographic Restrictions

The Services are intended for use in the United States of America only. If you visit us, contact us, or access the Services from outside of the United States of America, be advised that:

• Any information you provide to us or that we automatically collect will be transferred to the United States of America; and
• By accessing, using, or submitting information to the Services, you explicitly authorize its transfer to and subsequent processing in the United States of America in accordance with these Terms.

Daymark Health makes no representation that the Services are appropriate or available for use in all states and territories within the United States.

17. Miscellaneous Terms

Governing Law

The Terms, your use of the Services, and any action related thereto shall be governed by and construed in accordance with the laws of the State of Delaware consistent with the Federal Arbitration Act, without regard to the choice of law provisions of any jurisdiction.

Assignment

These Terms inure to the benefit of and will be binding upon our and your permitted successors and assigns. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Daymark Health’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

Daymark Health may, without further consent or notification, assign all contractual rights and obligations pursuant to these Terms if some or all of Daymark Health is transferred to another entity by way of merger, sale of its assets, or otherwise.

Amendment

Except as described in the section entitled Changes to the Terms, these Terms may not be amended unless in writing and signed by both Parties.

Waiver

Any failure or delay to exercise or enforce any right of the Terms, or failure to insist upon or enforce strict performance of any provision of these Terms, shall not constitute a waiver of such right or provision. Waivers shall be effective only if in writing and signed by Daymark Health.

Entire Agreement and Severability

These Terms, together with any amendments and any additional agreements or consents you may have entered with us in connection with the Services, constitute the entire agreement between you and us concerning the Services.

If any portion of these Terms is held invalid or unenforceable by a court of competent jurisdiction, that portion will be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions will remain in full force and effect.

18. Copyright Policy

Daymark Health respects the intellectual property of others and asks that Users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials.

If you believe that your work has been duplicated in a way that constitutes copyright or other intellectual property infringement, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated agent located at Daymark Health Inc., 701 E Cathedral Rd Ste 45 #3076 Philadelphia, PA 19128 (ATTN: Legal Department) with a copy to: legal@daymarkhealth.com:

• Your physical or electronic signature;
• Identification of the copyrighted work(s) that you claim to have been infringed;
• Identification of the material on our services that you claim is infringing and that you request us to remove;
• Sufficient information to permit us to locate such material;
• Your address, telephone number, and e-mail address;
• A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

19. Contact Us

If you have questions or concerns about these Terms, you may contact us by mail at:

You may also email us at hello@daymarkhealth.com.