Provider Terms of Use
Last Updated June 1, 2021
This Provider Agreement (the “Agreement“) is entered into as of the Effective Date (defined below) by and between Therify, Inc., a Delaware corporation (“Therify”) and the person or entity the organization agreeing to this Agreement (“Provider”). Therify and Provider are sometimes referred to in this Agreement as the “parties” and each individually as a “party.”
WHEREAS, Therify works with its clients to connect employees of such clients with a network of high quality and culturally competent mental health professionals;
WHEREAS, Therify maintains a website at https://www.therify.co/ (as well as such other URLs or web addresses as may be made available by Therify from time to time; the foregoing together as the “Sites”), where visitors to the Sites (“Visitors”) may create an account and provide information regarding their health status, mental health related needs, and provider preferences; content and resources related to mental health and wellness; as well as other services, features, content or applications offered by Therify (together the “Services”);
WHEREAS, the Sites include a publicly available Terms of Service, currently available at https://www.therify.co/terms (the “TOS”, which such URL may updated from time to time by Therify in its sole discretion);
WHEREAS, Provider wishes to be provider within the Therify network (the “Therify Network”), subject to the provisions of the TOS and this Agreement as further defined below; and
WHEREAS, Provider wishes to receive certain Services from Therify, which Services will be specified by Provider through configurable service preferences (“Service Preferences”), as further detailed below.
NOW THEREFORE, in consideration of the mutual promises and covenants made in this Agreement, and other good and valuable consideration, the sufficiency of which is hereby acknowledged by both parties hereto, the parties hereto, intending to be bound hereby, covenant and agree as follows:
1. Governing Agreements; Provider Identity; Effectiveness.
a. TOS. The TOS (including the documents referenced therein) is hereby incorporated into this Agreement by reference. Any updates, modifications, changes or other amendments to the TOS shall be deemed incorporated herein on an ongoing basis. Provider expressly acknowledges and consents to the foregoing. Provider is a “Provider” as defined in Section 12 of the TOS. This Agreement is a “Provider Agreement” as defined in the TOS. “Accounts,” as defined in the TOS, created by Providers are herein referred to as “Provider Accounts.” If there is any conflict between the TOS and this Agreement, this Agreement shall control. Capitalized terms not otherwise defined herein have the meaning given to them in the TOS.
b. Accurate Information. Provider has provided its complete and accurate legal name and contact information to Therify.
c. Effectiveness. The effective date (the “Effective Date”) of this Agreement shall be the earlier of (a) when Provider has executed the Clickwrap Action (as defined in the TOS) and (b) when Provider creates its Provider Account.
d. Continued Agreement. Provider acknowledges and agrees that its continued use of the Therify Services constitutes its express consent and agreement to any amendment, change or other modification to this Agreement, and the TOS, as further set forth herein. Provider acknowledges that it is solely responsible for remaining informed of such changes.
2. Provider Arrangement.
a. Service Preferences. Through the functionality provided by Therify to Provider through the Sites (or such other method as accepted by Therify, in its sole discretion), Provider now or in the future may specify configurable Service Preferences, which may include: certain preferences pertaining to the Provider Account; display preferences for content pertaining to the Provider available at the Sites; or information and webpage links regarding Provider in communications made by Therify to its Users (the foregoing as the “Provider Listing”); the applicable display periods for the Provider Listing (such period of time as a “Listing Period”); and other services that maybe provided by Therify to Provider. Therify is not obligated to provide any service not expressly offered by Therify and the services offered by Therify shall be determined by Therify in its sole discretion. The Service Preferences are subject to all applicable provisions of this Agreement.. Service Preferences may be updated by Provider within its discretion, provided that no Service Preferences will become effective before their listed date (or time, or other trigger) of effectiveness and in no event shall have retroactive effect.
b. Provider Listing Content. Provider will be responsible for providing all materials and content to be utilized in the Provider Listing, including, but not limited to, any digital files and images necessary to enable Therify to make the Provider Listing available at the Sites. Subject to Therify’s approval pursuant to Section 2(d), all Provider Listings will conform to the formatting, look-and-feel, content standards and any other standards provided by Therify as determined within Therify’s sole discretion. The Provider Listing may link to a webpage of Provider’s choice, subject to Therify’s approval within its sole discretion. Each Provider Listing will state that Provider is the provider of services described (or otherwise set forth) in the Provider Listing.
c. Therify Obligations and Discretion. Notwithstanding anything in this Agreement to the contrary, each Provider Listing will be subject to the approval of Therify in its sole discretion. Therify has no obligation to place any Provider Listing which fails to meet its approval on the Sites. Further, Therify shall have no obligation to place or maintain the Provider Listing on the Site. Additionally, notwithstanding anything herein or in the TOS to the contrary, Therify’s approval of content, materials or links to be utilized in any Provider Listing does not, and shall not be construed to imply, any endorsement of the quality, services or outcomes related to any Provider.
d. Payment and Claims. Therify will process claims on behalf of Provider related to services rendered by Provider to Users. Provider agrees to promptly deliver claims to Therify in accordance with applicable law via the Sites for reimbursement in accordance with the terms of participating in the Therify Network.
e. Non-exclusivity; Listing Priority. Therify may feature or promote any number of Providers on the Sites and nothing in this Agreement does or will be interpreted to grant Provider any exclusive rights to the any Provider Listing, including for any type, category, market segment, demographic segment, vertical, geographic region or other delimiting factor of service(s). The method and means by which Therify displays Provider Listings (both pursuant to this Agreement and other Provider Agreements) shall be determined within the sole discretion of Therify. Therify is not under any obligation to cause any Provider Listing to be responsive or displayed in connection with any Visitor search, in any particular order, frequency or with any particular placement within search results or otherwise. Notwithstanding the foregoing, Therify and Provider may agree upon such factors in applicable Service Preferences.
f. Suspension. Therify may limit or suspend the Provider Account, including removing any and all Content related to Provider and the Provider Listing from the Sites, for any reason or no reason, immediately and without the obligation of providing notice to you.
3. Term. The term of this Agreement shall be from the Effective Date until termination pursuant to this Agreement (the foregoing as the “Term”).
4. Termination.
a. Termination for Cause. Either party may terminate this Agreement for cause (a “Termination for Cause”) on notice if the other party hereto materially breaches any material provision of this Agreement and fails to cure such material breach within thirty (30) days of receipt of notice of such cure.
b. By Provider. Provider may remove its Provider Listing from the Sites using the functionality provided by in the Provider Account at any time or by notifying Therify. Additionally, Provider may terminate this Agreement, for any reason or no reason, on ninety (90) days’ prior written notice to Therify.
c. By Therify. Therify may terminate this Agreement, for any reason or no reason, on thirty (30) days’ notice to Provider. Additionally, Therify may terminate this Agreement immediately upon notice due to any of the following, each of which also constitutes a Termination for Cause:
i. Any willful misconduct, gross negligence, or violation of any applicable law, rule or order by Provider or any of its employees, personnel or other agents (the foregoing together as the “Provider Team”);
ii. Any material violation of this Agreement; or
iii. Any violation of the Rules of Conduct (or a successor provision) of the TOS.
d. Service Preferences. Therify may limit, terminate, cancel or suspend any service or offering made or offered through any Service Preferences at any time, with or without the obligation of notice to Provider. Provider may cancel or change services provided through Service Preferences by using the functionality provided by the Provider Account or by contacting Therify. Notwithstanding the foregoing, all such cancellations shall be prospective and shall be effective at the end of the next applicable billing period. No cancellation of any service or offering detailed in any Service Preferences shall entitle Provider to any refunds. Termination of this Agreement shall terminate all services or other offerings detailed in any Service Preferences then in effect.
e. Effect of Termination. If this Agreement is terminated by Therify, Therify agrees to reimburse Provider in accordance with this Agreement for all outstanding claims submitted prior to such termination. . Subsequent to the effective date of any termination or expiration of this Agreement: Therify shall have a reasonable period of time to remove (or request Provider to remove) any Provider Listing, or other information pertaining to or provided by Provider, from the Sites (the foregoing as the “Transition Period”); Provider will take down all publicly available references to Therify from its websites and will cease referring to Therify in any public manner (except as may be expressly permitted herein or allowable under applicable law); and except for the licenses expressly detailed as perpetual licenses, all licenses hereunder shall terminate.
5. Ownership and License.
a. Content License Grant. All information of any kind provided by Provider to Therify, whether directly or indirectly, is deemed “Content” pursuant to the TOS. In addition to the rights granted to Therify in the TOS, limited only by applicable law, regulation or order, the TOS (including the Privacy Policy) and this Agreement (including Section 7 (Confidentiality) hereof): (i) Provider hereby grants to Therify a non-exclusive, transferrable, fully sublicensable worldwide license to publish, display and distribute all intellectual property embedded in the Provider Listing, including any and all trademarks and copyrights therein, for the duration of the Term; and (ii) Provider hereby grants to Therify a non-exclusive, perpetual, irrevocable, fully-paid, royalty-free, transferrable, assignable, fully sublicensable, worldwide license to use, display, host, publish, reproduce, download, publicly perform, transmit, broadcast, adapt, modify (e.g., re-format), rearrange, prepare derivative works of, distribute, and otherwise exploit the Content provided by Provider to Therify through any manner, mode of delivery, or media now known or developed in the future for Therify’s internal business purposes, for purposes of compliance with any applicable law, regulation or order, to disclose to investors, potential acquirers, funding sources and outside advisors, to publish reports (in connection with which Therify is not obligated to list Provider as a source or author), and for any other use not prohibited by applicable law, the TOS or any other portion of this Agreement or its attachments. Provider expressly acknowledges that feedback, suggestions, ideas for improvements, comments on Therify’s business, the Sites, and all similar or related information provided by Provider to Therify, through any means, as well as any improvements to any software routine or model that result or arise from the processing of any information provided by Provider to Therify (including, without limitation, improvements to machine learning models) are Content subject to the license set forth in the preceding clause (ii) and Therify may integrate, utilize or exploit any of the foregoing without any obligation of any kind (including pertaining to attribution, authorship or payment) to Provider. Provider expressly acknowledges that Provider’s Content may be provided to the subcontractors to, licensees of, successors-in-interest to, investors of and potential or actual acquirers of Therify, as subject to applicable Law and the Privacy Policy (as may be in effect and updated from time to time).
b. Provider Trademark License. Provider hereby grants to Therify, for the duration of the Term (and for the Transition Period), a non-exclusive right to use Provider’s trademarks, service-marks and/or other brand indicia (the “Provider Marks”), provided by Provider to Therify (or as reasonably by modified by Therify thereafter), in connection with: (i) the Provider Listing; (ii) any marketing activities, as determined by Therify in its sole discretion, to promote the Services, Provider and/or Therify. All goodwill associated with use of the Provider Marks by Therify shall inure to the sole and exclusive benefit of Provider.
c. Therify Trademark License. Provider may not use any of Therify’s trademarks, service-marks and/or other brand indicia (the “Therify Marks”) without the express prior written consent of Therify. If such consent is granted, all use of the Therify Marks by Provider will be in strict accordance with any and all brand guidelines (oral or written) provided to Provider by Therify. All goodwill associated with any use of the Therify Marks by Provider shall inure to the sole and exclusive benefit of Therify.
d. Retention of Other Rights. Except as expressly set forth herein, no right, license, title or interest to, in or under any intellectual property or proprietary right of either party is made, transferred, hypothecated or otherwise granted by this Agreement.
6. Confidentiality.
a. Definition: “Confidential Information” means non-public information, as further qualified below, provided by one party (in such role as “Disclosing Party”) to the other party hereto (in such role as “Receiving Party”), either directly or indirectly, whether disclosed orally, electronically, in writing or otherwise. Confidential Information of Therify includes, without limitation, any non-public information, including technical data, trade secrets or know-how, machine learning models, software algorithms, source code, research, product plans, products, services, customers, customer lists, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, client confidential information and data, any personally identifiable information, as well as the provisions of this Agreement. Confidential Information of Provider is defined exclusively as Provider’s financial information, billing information and location information (to the extent not otherwise made publicly available by Provider). To the extent Provider is a “Covered Entity”, as that term is defined in the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”), Therify agrees to enter into a customary Business Associate Agreement (“BAA”)with Provider as required under HIPAA and the parties agree that “Protected Health Information”, as defined in HIPAA, shall not be deemed Confidential Information as used herein, but will instead be subject to the terms and conditions of the BAA.
b. Non-Use and Non-Disclosure. Receiving Party shall not, during or subsequent to the Term of this Agreement, use Disclosing Party’s Confidential Information for any purpose other than in furtherance of this Agreement and the activities described in this Agreement or disclose such Confidential Information to any third party except as otherwise permitted in this Agreement. Receiving Party may disclose Confidential Information of Disclosing Party only to its employees, subcontractors or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions (including, without limitation, provisions relating to non-use and non-disclosure) no less restrictive than those required by Receiving Party for its own Confidential Information, but in no event less restrictive than this Agreement and, in any event, no less than reasonable care under the circumstances.
c. Exclusions. Notwithstanding the foregoing, this Agreement shall not prevent Receiving Party from disclosing Confidential Information of Disclosing Party to the extent required by a judicial order, applicable law, regulation or order, or other legal obligation, provided that, in connection therewith, Receiving Party shall promptly notify Disclosing Party to allow intervention (and shall cooperate with Disclosing Party, at Disclosing party’s sole expense) to contest or minimize the scope of the disclosure (including application for a protective order). Additionally, each party may disclose the provisions of this Agreement as required by applicable health regulatory laws and securities laws, including, without limitation, requirements to file a copy of this Agreement (redacted to the extent reasonably permitted by applicable law) or to disclose information regarding the provisions hereof or performance hereunder to applicable regulatory authorities . Further, Receiving Party may disclose the provisions of this Agreement: (a) in confidence, to legal counsel; (b) in confidence, to accountants, banks, and financing sources and their advisors; and (c) in connection with the enforcement of this Agreement or any rights hereunder, provided that, in each case, Receiving Party remains responsible for such third parties’ compliance with the confidentiality obligations hereunder. Confidential Information does not include information which (i) is generally known in the industry or known to Receiving Party, as evidenced by documentation, at the time of disclosure to Receiving Party; (ii) has become publicly known and made generally available through no wrongful act or inaction of Receiving Party; (iii) has been rightfully received by Receiving Party from a third party without a duty of confidentiality; (iv) is independently developed by Receiving Party without reliance upon or reference to any Confidential Information of Disclosing Party; or (v) is authorized for public disclosure by Disclosing Party in writing prior to such applicable public disclosure.
d. Unauthorized Disclosure of Confidential Information. The parties acknowledge that any unauthorized use or disclosure of Confidential Information may cause irreparable damage to Disclosing Party. If an unauthorized use or disclosure occurs, Receiving Party will promptly notify Company and take, at its sole cost and expense, all reasonable steps recover the Confidential Information and to prevent its subsequent unauthorized use or dissemination, including availing itself of actions for seizure and injunctive relief. If Receiving Party fails to take these steps in a timely and adequate manner as determined by the Disclosing Party, Disclosing Party may take them at Receiving Party’s expense, and Receiving Party will provide Disclosing Party with its reasonable cooperation in such actions that Disclosing Party may request. Additionally, the parties agree that violation of any material respect of this Section 7 would cause Disclosing Party irreparable injury for which it would have no adequate remedy at law. Therefore Disclosing Party shall be entitled to seek injunctive relief against Receiving Party in any tribunal of competent jurisdiction, including any State or Federal Court, in accordance with the applicable jurisdiction’s laws (excluding any applicable choice of law provisions) , in addition to any other equitable remedies that may be available to Disclosing Party.
e. Reference to this Agreement. In addition to the other permitted methods of disclosure as set forth herein, the parties and their personnel are entitled to disclose the existence of this Agreement and describe the transactions contemplated hereby in summary and general form, without revealing any Confidential Information of the other party. Notwithstanding the foregoing, Provider party shall not issue any public statement or public press release regarding this Agreement without written prior approval from Therify.
f. Return of Materials. Upon the termination of this Agreement, or upon Disclosing Party’s earlier request, Receiving Party shall deliver to Disclosing Party, or destroy, all of Disclosing Party’s Confidential Information embodied in tangible (including electronic) form, and certify in writing to Disclosing Party that all such Confidential Information has been returned or destroyed. Notwithstanding the foregoing, Receiving Party shall be entitled to retain copies of Confidential Information: (i) to the extent permitted under applicable law; (ii) that are retained in the automated backup systems of Receiving Party, provided that such copies are deleted pursuant to the applicable policies governing such systems; and (iii) provided that in any instance, any such copy of Confidential Information hereunder is maintained in accordance with the provisions of this Agreement.
g. Order of Precedence. This Agreement supersedes any prior agreement entered into between the parties relating to the confidentiality of any Confidential Information disclosed by the parties to each other.
7. Independent Contractor. Nothing in this Agreement shall be construed to create an employer-employee relationship between Therify and Provider. The parties are independent contractors of one another. Neither party will represent to be or hold itself out as an employee or agent of the other.
8. Force Majeure. Each party shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, provided the affected party takes reasonable steps to mitigate such circumstances and to promptly return to performance hereunder thereafter. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption.
9. Provider Representations and Warranties. Provider represents and warrants that:
a. Provider (if not a natural person) is duly formed and in good standing in its jurisdiction of formation and in all jurisdictions in which it operates;
b. Provider has the authority to execute and deliver this Agreement and perform all of its obligations under this Agreement, including pertaining to all information and Content referenced herein;
c. Provider has provided all information requested by Therify in order to credential and admit Provider into the Therify Network, and the information provided by Provider to Therify, including in connection its Provider Account and this Agreement, is accurate and complete;
d. the this Agreement has been duly authorized by Provider and, when executed, this Agreement will be a valid and binding obligation of Provider;
e. neither the delivery nor the execution of this Agreement, nor the consummation of the transactions contemplated hereunder, will violate any law, regulation or order to which Provider is subject, or violate or constitute a default under any agreement or instrument to which Provider is a party, nor will Provider enter into any such agreement or instrument during the term;
f. Provider has the authority to make all grants and licenses of intellectual property and proprietary rights as detailed in this Agreement;
g. no Content provided by to Provider in connection with this Agreement infringes the intellectual property or other proprietary rights of any third party;
h. Provider has all insurance policies, including sufficient coverages, required by law to operate its business and Provider will name Therify as an additional insured on all applicable policies;
i. Provider shall render professional services to Visitors who schedule appointments or consultations with Provider in conformity with all applicable standards of care and in material compliance with all applicable statutes, regulations, rules, orders, and directives of any and all applicable governmental and regulatory bodies having competent jurisdiction over Provider;
j. Provider shall use the Sites to render professional services to those Visitors residing in only those jurisdictions in which Provider is duly and actively licensed to render professional services or otherwise in compliance with applicable law;
k. Provider acknowledges that all decisions and judgments relating to the rendering of professional services shall be Provider’s sole responsibility. Nothing in this Agreement shall be interpreted to dictate, modify, or influence the Provider’s rendering of professional services, or his/her delivery of direct patient care or independent judgment in the rendering of professional services;
l. Provider acknowledges that it shall have complete control over the diagnosis and treatment of Visitors, if applicable, and the rendering of professional services to Visitors; and
m. Provider is and has never been at any time excluded, suspended, debarred or otherwise ineligible to participate in the Medicare, Medicaid or any other state or federal government payer programs.
10. Provider Covenants.
a. Provider covenants not to sue the Therify Team and releases the Therify Team (as hereinafter defined) from any liability for any and all losses, claims, damages and liabilities, to which Provider and its owners, directors, managers, officers, partners, subsidiaries, affiliates, providers, employees, agents and/or representatives may become subject, or any claim made by any third party or otherwise, as a result of the actions or omissions of Therify, its parents, affiliates and subsidiaries, the successors and assigns of each of the foregoing, the owners, officers, directors, partners, principals, employees, agents and representatives of each of the foregoing (and the successors and assigns of each of the foregoing) (together as the “Therify Team”), except in circumstances of gross negligence or willful misconduct of Therify.
b. Provider covenants that it will maintain, for the duration of this Agreement, in good standing all licenses required by it in order to render professional services to Visitors.
c. Provider covenants that it will immediately notify Therify in writing if it is the subject of any action by the Office of Inspector General or any state equivalent in an action to exclude, suspend, debar or otherwise render Provider ineligible from participating in any state or federal government payer program.
11. Indemnity. Provider shall indemnify, defend and hold harmless the Therify Team from and against any and all Losses, as and when incurred, directly or indirectly, arising from or related to any claim (each a “Claim”) pertaining to: (a) any Provider Team member’s gross negligence, willful misconduct or violation of applicable law, rule or order; (b) Provider’s obligation as employer of its employees (including, without limitation, pertaining to salary, taxes and benefits, compliance with applicable labor and employment laws, federal, state, or local income tax, FICA, FUTA or SUI) for any claim that Therify is or should be the employer or ‘joint employer’ of any Provider Team member, including, without limitation, any actions, investigations or other proceedings by any applicable governmental authority to establish the same) or any misclassification of any member of any Provider Team; (c) Provider’s breach of the Rules of Conduct of the TOS (or any successor provision thereto); (d) any damage to any property of, personal injury or death of any Visitor to whom Provider provided any services; (e) actual or alleged breach of any of Providers’ representations and/or warranties set forth in this Agreement; and/or (f) actual or alleged breach of Provider’s obligations pursuant to Section 7 (Confidentiality). Whenever Therify seeks indemnification pursuant to this Section 11 (in such role as “Indemnitee”), Therify (i) shall send Provider (in such role, the “Indemnitor”) prompt written notice of any material facts or circumstances which may give rise to any relevant Claims (provided that failure to provide such prompt notice shall not relieve Indemnitor of its obligations hereunder except solely to the extent Indemnitor is materially and irrevocably prejudiced thereby), (ii) Indemnitor may request reasonable cooperation by Indemnitee, at Indemnitor’s sole cost and expense, in the defense of such Claims, and (iii) Indemnitor may exercise the right to control the defense and settlement of any such Claims; provided, that (A) Indemnitor shall not settle or dispose of any Claim without the prior written approval of Indemnitee and (B) Indemnitee shall have the right to participate in the defense at its own expense.
12. Waiver and Limitation of Liability.
a. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY DAMAGES RESULTING FROM LOSS OR INTERRUPTION OF BUSINESS, DATA BREACH, LOST DATA OR LOST PROFITS, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
b. EXCEPT AS PROVIDED HEREIN OR AS REQUIRED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF THERIFY FOR DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, THE PROVIDER LISTING, ANY CONTENT OR ANY OTHER MATERIALS OR SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (UNDER ANY THEORY, WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AGGREGATE FEES PAID BY PROVIDER TO THERIFY IN THE TWELVE (12) MONTHS PRECEDING THE ACT OR OMISSIONS GIVING RISE TO SUCH DAMAGES.
c. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF THIS SECTION 13 SHALL NOT APPLY WITH REGARD TO PROVIDER’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, VIOLATION OF ANY APPLICABLE LAW, REGULATION OR ORDER, OR PROVIDER’S OBLIGATIONS PURSUANT TO THIS AGREEMENT.
13. Survival. Sections 1, 6(a), 6(b), 6(d), 7, 8, 12(a), 13, 14, 15, 16, 18, 19, and 20 shall survive any termination or expiration of this Agreement. In addition, all provisions of this Agreement which expressly continue to operate after the termination of this Agreement shall survive this Agreement’s termination.
14. Applicable Law. This Agreement shall be governed by the internal laws of the State of New York, without reference to its conflict of law provisions. The provisions of the TOS shall govern disputes hereunder, except that the site of any arbitration shall be in New York County in New York. Additionally, the binding arbitration provisions of the TOS shall not limit either party’s ability to enforce the provisions of Section 6 (Confidentiality) in any tribunal of competent jurisdiction, subject to Section 6(e) hereof; provided that only enforcement of such provisions may be heard therein, and all other disputes hereunder shall be subject to the provisions of the TOS.
15. Notice. Any notice or communication permitted or required by this Agreement shall be deemed effective when personally delivered, three days after deposit with registered or certified in the United States mail or guaranteed delivery with a courier such as FedEx or UPS, properly addressed to the appropriate party at the mailing addresses set forth herein, or effective on the day after such notice is sent via electronic mail to the email address as set forth herein. Therify’s address and email for notice shall be the address information provided in the TOS. Therify may update its notice address by updating the address information available within the TOS. Provider’s address and email for notice will be the information provided by Provider to Therify. Provider may change its notice address to Therify by means of notice or by updating its contact information in its Account. Additionally, Provider hereby consents to, and waives any objection to, receiving any and all notice permitted or required by this Agreement and/or the TOS through means of functionality provided by the Provider Account. Such notice will be deemed effective the day after such notice is made through the Provider Account.
16. Entire Agreement and Amendments. This Agreement, together with all applicable Service Preferences, the TOS and any Business Associate Agreement executed between Provider and Therify, constitutes the entire agreement of the parties with regard to the subject matter hereof and replaces and supersedes all other agreements or understandings, whether written or oral. The order of precedence of the foregoing documents shall be as follows: (a) Business Associate Agreement; (b) this Agreement; (c) the TOS; and (d) any Service Preferences. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of such party in receipt of any of the foregoing to object to such terms, provisions or conditions. Therify may modify any provision of this Agreement without notice to Provider. Therify may, but is not obligated, to provide Provider notice of such changes through the functionality provided by the Provider Account. The TOS may be modified as set forth therein. Except for Therify’s modifications to this Agreement and the TOS as set forth in this Section, this Agreement may not be amended except by a writing duly executed by the authorized representative of both parties hereto. Notwithstanding the foregoing, any amendment or modification to the TOS shall be binding upon this Agreement, subject to the applicable provisions of the TOS and this Section. A waiver of any default hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition, but shall apply solely to the instance to which such waiver is directed. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. No waiver hereunder shall be binding unless executed in writing by a duly authorized representative of the party to be bound thereby. Except as otherwise expressly set forth herein, all remedies, rights, undertakings, obligations and agreements contained in this Agreement will be cumulative and none of them, nor the exercise or failure to exercise any of them, will be in limitation of any other remedy, right, undertaking, obligation, or agreement of either party. Except solely with respect to the TOS and amendments or modifications made to this Agreement by Therify, no click-wrap, click-through, browse wrap or similar agreements shall have any binding effect or supersede this Agreement. No writing to be executed by any party hereto will be effective unless duly executed by a duly authorized representative of such party. This Agreement is for the sole benefit of the parties and there are no third party beneficiaries hereto.
17. Assignability. This Agreement shall be binding upon and shall inure to the benefit of Provider and Therify and to Therify's successors and assigns. This Agreement and all rights and duties hereunder are personal to Provider and may not be assigned or delegated, in whole or in part, by Provider without the express prior written consent of Therify. Any such assignment or delegation without prior written consent shall be null and void ab initio. No provision of this Agreement shall be deemed to restrict the absolute right of Therify at any time to sell or dispose of all or any part of its assets, or to reconstitute the same into any one or more subsidiary entities and to merge, consolidate, sell or otherwise dispose of said subsidiary entities or any assets thereof and to assign this Agreement, including all of its rights hereunder, in connection with any of the foregoing without any necessity of permission of Provider.
18. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision. To the greatest extent possible, any invalid provision shall be automatically deemed modified to the least extent necessary to render it a valid provision which most closely approximates the intent and effect of the invalid provision and, together with all other provisions of this Agreement, shall continue in full force and effect.
19. Counterparts. This Agreement may be executed in any number of counterparts (including by facsimile or electronic scan), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
20. Construction. The captions and section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. The construction of this Agreement shall not take into consideration the party who drafted or whose representative drafted any portion of this Agreement, and no canon of construction shall be applied that resolves ambiguities against the drafter of a document.