SerenePractice LLC Terms of Service
Last Updated: August 2, 2023
BY ACCESSING OR USING THE SERVICES, OR BY OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THESE TERMS OF SERVICE BY ANY MEANS INCLUDING AS FURTHER DESCRIBED BELOW, YOU AGREE TO THESE TERMS OF SERVICE ON BEHALF OF YOURSELF, ON BEHALF OF THE PRACTICE OR OTHER ENTITY LISTED IN THE ACCOUNT CREATION, SIGN UP OR SIMILAR FORM (“REGISTRATION FORM”) AND IF A PRACTICE IS SO IDENTIFIED, ON BEHALF OF THE PROVIDERS FOR SUCH PRACTICE. If You are an individual accessing or using the Services on behalf of, or for the benefit of, any person or entity with which You are associated and identified in the Account (an “Organization”), then You agree to this Agreement on behalf of Yourself and such Organization. You represent and warrant that You have the legal authority to bind such Organization to this Agreement. References to “You” and “Your” in this Agreement refer to both any such Organization and to the individual accessing or using the Services on behalf of the Organization (including the Account Owner). IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR DO NOT HAVE THE AUTHORITY AS PROVIDED HEREIN, YOU MAY NOT AND SHALL NOT ACCESS OR USE THE SERVICES (AS DEFINED IN THESE TERMS OF SERVICE).
These Terms of Service (referred to herein as “Agreement” or “Terms of Service”) are a binding contract between You and SerenePractice, LLC (referred to herein as “SerenePractice” or “Us”, “Our”, or “We”). This Agreement shall govern Your and the other Team Members’ use of the Services, and Your and the other Team Members’ rights and obligations with respect to User Data placed in the Services, as well as Your creation of an account through which You and the other Team Members will access the Services (hereinafter, an “Account”). By accessing, using, subscribing, purchasing, or downloading the Services, You agree to, and ensure that all other Team Members will, follow and be bound by the following terms and conditions and any other terms and conditions contained in any other agreements You enter into with Us relating to specific Services. If You do not agree with this Agreement, neither You nor the Team Members may use the Services.
This Agreement applies to Your and the other Team Members’ use of the Services and all transactions made in connection with the Services. Manifestation of agreement to this Agreement may arise by any act demonstrating Your assent to them, including clicking any button containing the words “I agree”, “Start my free trial”, “Join my team”, “Create my account” or similar syntax, by accessing or using any of the Services or by establishing an Account, whether You have read this Agreement or not. By clicking any such button or otherwise indicating Your assent, You agree to this Agreement. You should print a copy of these Terms of Service for Your business and personal records.
If You know, or have a suspicion or the good faith belief, that a Team Member has violated this Agreement, You are responsible for immediately revoking access rights to such Team Member. Additionally, if You become aware that a Team Member no longer possesses the requisite licenses or other credentials or is no longer employed by or affiliated with You, You have the responsibility to immediately revoke access rights to such Team Member.
NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE (UNLESS YOU OPT OUT) AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH US. PLEASE READ THESE REQUIREMENTS CAREFULLY.
This Agreement may be modified by SerenePractice by notifying You as provided in Section 29 (Notices) below. By continuing to access or use the Services after the effective date of any such change, You agree to be bound by the modified Agreement.
1. Definitions
“Account Owner” means the individual opening an Account on behalf of themselves or the Organization, and any subsequent transferee of the Account Owner role made in accordance with Section 9.7 (Transfer of User Data and Account Ownership) below.
“Client” means a customer of the Organization including a patient of the Organization’s healthcare provider. The Client’s activities under the “Client Profile” within the Client Portal are subject to additional terms and conditions located within the Client Portal.
“Client Portal” means the website and application-based Service in which Clients can manage their appointments, process payments, securely message, or perform and manage other tasks and information related to their relationship with the Organization (including healthcare providers of the Organization).
“Client Profile” means the record specific to an individual Client and their information that is maintained within Your Account, and as applicable, the Client Portal.
“Content” means template and template libraries, information, data, content, and other materials provided through the Services and includes without limitation, Third Party Materials such as the WILEY® PracticePlanners content.
“Directory Service” means the listing service containing Your Listing Information that will be published by SerenePractice as part of the Services.
“Dispute” will have the broadest meaning possible and means any dispute, action, or other controversy between You and SerenePractice relating to the Services, any transaction or relationship between You and SerenePractice resulting from Your use of the Services, communications between You and SerenePractice, or this Agreement – whether in contract, warranty, tort, laws, or regulations.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to time.
“Intellectual Property Rights” means copyrights, trademarks, service marks, trade dress, publicity rights, database rights, patent rights, and other intellectual property rights or proprietary rights recognized by law.
“Payment Data” means any personal or financial information collected from a credit card, debit card or other payment method, including but not limited to a cardholder’s account number, card expiration date, and CVV2.
“Personal Information” is information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with an individual or a household, such as a name, email address, IP address, telephone number, and broader categories of information such as professional, educational or health information, commercial information and internet activity.
“Professional Website” means the website We enable You to create for the Organization’s practice through the Services.
“Protected Health Information” or “PHI” means protected health information as defined by HIPAA’s Privacy Rule found at 45 C.F.R. §160.103.
“Services” means SerenePractice’s technology and software platforms, Websites and any affiliated sub-domains, mobile applications, software, and servers. Services include but are not necessarily limited to the Client Portal, Professional Website Service, Directory Service, Community Website Service, Telehealth Service, and Measurement-Based Care Service, whether or not stated separately within this Agreement.
“Stripe Payment Processing Services” means third-party services that enable the acceptance of payments, management of subscriptions, and performance transaction reporting, as well as analytics and other business services.
“Team Member” means You and Your employees, agents, and service providers who have been added to the Account and assigned a role by You to perform services on Your behalf.
“Telehealth” means the video, audio, streaming and media service available through the Services whether or not it is used for streaming of health care services.
“Territory” means the following, which may be modified by SerenePractice or its licensors from time to time: Canada and the United States and its territories.
“Transaction Data” means Your information, Payment Data, transaction information, bank information and credit card information including without limitation tokenized account information, tokens and token access codes, account information.
“User Data” means any data or images that You or Your Clients upload, stream or submit to or through the Services, or generated or collected on Your behalf from the Services or third parties, including but not limited to Protected Health Information as that term is defined above, video, image and sound data, Transaction Data, Practice Information, and Your Listing Information.
“User(s)” means You, other Team Member(s), and/or Clients.
“Website” means the websites and services available from the domain and sub-domains of https://spgatsby.wpengine.com, https://secure.SerenePractice.com/, https://support.SerenePractice.com/hc, https://community.SerenePractice.com, https://clientsecure.me/client_portal, https://video.SerenePractice.com, https://feedback.SerenePractice.com, https://meetmonarch.com/, other websites provided to You by SerenePractice through the Professional Website, and any related or successor domains and sub-domains.
“Your Listing Information” means all content, including without limitation, name, address, data, information, specialties and credentials, and images, all as provided by You to SerenePractice and then provided through or disclosed by use of the Directory Service.
2. Verification for SerenePractice
By accepting this Agreement in connection with an Account, the person acknowledging agreement or assenting to this Agreement represents that they are at least 18 years of age, or the legal age of majority where in the place of residence if that jurisdiction has an older age of majority. You further agree that as a condition to accessing the Services, You will submit to Account and Account Owner verification as required by SerenePractice, and provide only true and accurate identification documentation and location information to SerenePractice or its third party service providers as requested by SerenePractice. You are responsible for the security of any Account verification information, such as email addresses and passwords, including without limitation Your Users’ email addresses and passwords. You are responsible for ensuring that Users under the age of 18 years old obtain their parent or legal guardian’s consent to utilize the Services, unless applicable laws allow You to provide care or Your services to a minor (under 18 years of age) without such consent. You agree that any Users who are under 13 years old require their parent or legal guardian’s consent to collect their User Data, which consent You are responsible for obtaining, prior to the use by such User of the Services.
3. Establishing an Account
You must ensure that You provide accurate, current, and complete information about You and Team Members (“Registration Data”) as prompted by the Registration Form and as required to be added in the “Settings” or other page on the Website, and use the Account management tools provided to keep Your Registration Data accurate, current and complete. You agree that you will provide information indicating some form of presence within the Territory (e.g., license number, practice address, or bank information). SerenePractice will assign an Account name (Your “Account Name”).
You may only establish and access an Account from the Territory. You acknowledge that SerenePractice may change or modify this list from time to time, and that SerenePractice may enforce these changes at its discretion.
4. Accessing Your Account
You and other Team Members may access Your Account from the Territory. You acknowledge that SerenePractice may change or modify this list from time to time, and that SerenePractice may enforce these changes at its discretion. SerenePractice bears no liability or responsibility in connection with Clients who access their Account from outside the Territory.
Notwithstanding the foregoing, You acknowledge that the Services provided by SerenePractice are United States-based. We make no warranty or representation that any aspect of the Services is appropriate for use outside of the United States or may be used for persons who are not then located inside the United States. Those who access the Services from other locations are responsible for compliance with applicable local laws. Any Service that is a software is subject to applicable export laws and restrictions. SerenePractice bears no liability or responsibility in connection with Clients who access the Client Portal from any country outside of the United States.
5. Responsibility for Use of Account
You are responsible for all obligations and activities conducted through Your Account, including obligations and activities of other Users, and You are responsible for all activities conducted through Your email address and are responsible for other Users to whom You grant access to Your Account, including Your Clients and those You authorize to access Your Account on behalf of Yourself or Clients. You agree, and agree to cause the other Team Members to agree, to be jointly and severally responsible for compliance with this Agreement. As between You and SerenePractice, You are responsible for all information and User Data that You and other Users input into the Services. In the event that fraud, violation of law, regulation or rule, or conduct that violates this Agreement occurs (whether by You or someone else) that is in any way connected with Your Account, We may suspend or terminate Your use of the Services and Your Account as described herein (including Sections 7 (Fees and Billing), 14 (Interruption of Service), 17 (Service-Specific Terms), 23 (Suspension and Termination), and 24 (Termination of Account or Agreement)), and, if applicable, You shall be financially responsible to SerenePractice for the consequences of such use.
6. Selection and Use of Account Password
At the time Your Account is created by the Account Owner, the Account Owner must select a password. You are responsible for maintaining the confidentiality of Your password. You are responsible for any damages, claims, losses or other harm resulting from disclosure of Your password, authorization of the disclosure of Your password, or any person’s use of Your password or Your Account and those who gain access to Your Account or Account Name. You agree that You will not respond to an online request for a password other than in connection with the log-on process to the Services. Your disclosure of Your password to any other person is at Your own risk.
You and each person using Your Account must have separate email addresses and passwords. Users may not share entry identifications and authentication passwords and any sharing may result in a suspension or termination of access for the User, and/or an increase in charges, at SerenePractice’s sole discretion.
7. Fees and Billing
SerenePractice provides the Services for the fees and other charges set forth on the Website at https://www.SerenePractice.com/pricing/ or other locations on the Website. All prices listed exclude all sales taxes, fees, use taxes, charges, duties, levies, and similar governmental charges (“Sales Taxes”) imposed on the provision of the Services, and all such Sales Taxes shall be borne solely by and paid by You to SerenePractice and deemed to be in addition to the fees charged in connection with the Services. Where applicable, You shall be responsible for all Sales Taxes, and SerenePractice reserves the right to collect Sales Taxes retroactively. At any time, we may add new services for additional fees and charges or prospectively modify fees and charges for existing services (including prospectively charging fees for the Services not previously charged for) on notice as provided herein. You acknowledge that it is Your responsibility to ensure payment is made in advance for all paid aspects of the Services and to ensure that Your credit or debit cards or other payment instruments accepted by SerenePractice and/or its processor, including Stripe, continue to be valid and sufficient for such purposes. We may suspend or terminate Your use of the Services and Your Account’s use of the Services, as provided in Sections 14 (Interruption of Service) and 23 (Suspension and Termination), in case of any payment delinquency. Other services are available from SerenePractice, and the agreement with respect to those services and fees due to SerenePractice incorporates this Agreement and any specific terms and conditions presented to You. You will not be entitled to any refund on termination or expiration of the Agreement. All payments once made to SerenePractice shall have been earned by SerenePractice as of the payment date. You will not be entitled to any refund or credits for the partial use of the Services at any time.
8. Modification of Service
SerenePractice reserves the right, upon providing notice to You (via email, through posting on the SerenePractice website, or through any other reasonable means), to add, modify, discontinue, or eliminate aspect(s), features, or functionality of the Services from time to time for any reason including without limitation for purposes of compliance with applicable laws and regulations, to effect improvements in security and functionality, to correct errors, or for any other purposes, at its sole discretion.
9. User Data
9.1 Ownership in User Data. In connection with User Data that User uploads or submits to, or which is created by the Services, You affirm, represent, and warrant that You own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize SerenePractice to use, retain, copy, and process the User Data in connection with the Services and as contemplated by this Agreement. Your provision thereof through and in connection with the Services are complete and accurate and are not fraudulent, tortious, or otherwise in violation of any applicable law or any third party's right.
9.2 License to User Data. By uploading or submitting any User Data to or through the Services and permitting other Users (including, without limitation, Clients) to upload any User Data into the Services, You hereby automatically, at such time, grant SerenePractice (and its affiliates) a non-exclusive, worldwide, royalty-free, fully paid-up, perpetual, irrevocable, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, perform and display such User Data (including User Data that is created, collected or generated by the Services or SerenePractice using the User Data Users submit), for the purposes of providing you the Services and further developing, improving, and marketing SerenePractice’s products and services (including the Services), it being understood that the results generated from use for purposes other than providing the Services are not identifiable with the Organization or any natural person. The foregoing rights and licenses will be exercised in accordance with the SerenePractice Privacy Policies referenced in Section 10 below. You agree that the license includes the right to copy, analyze, and use any User Data as SerenePractice may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Services and future improvements to the Services. The license granted in this Section is called the “Service Data License.” You also acknowledge that the Service Data License granted to SerenePractice with respect to User Data will survive the expiration or termination of Your Account. Notwithstanding the foregoing license, the license granted to SerenePractice to use User Data that includes content that You provide for purposes of Your Professional Website is outlined in Section 17.2 (Professional Website Service) below. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Data that You may have under any applicable law under any legal theory.
9.3 User Data from Payment Processors. Notwithstanding anything to the contrary herein or in any payment processing agreement between You and the payment processor (including Stripe), You also hereby grant SerenePractice (and its affiliates) a non-exclusive, worldwide, irrevocable, perpetual, royalty-free, fully paid-up, assignable, and sublicensable (through multiple tiers) license, authority, and permission to obtain, copy, and use, at SerenePractice’s request, without notice to You, User Data received from payment processors, banks, card and ACH processors and gateway provider, which support the Services, for purposes of providing You the Services, and to develop, improve, and market SerenePractice’s products and services (including the Services), it is understood that the results generated from use for purposes other than providing the Services are not identifiable with the Organization or any natural person.
9.4 Your Responsibilities to User Data. You acknowledge that You are responsible for all User Data You and other Users input into the Services, including changes made to Client progress notes, whether previously locked or unlocked. You hereby acknowledge that the practice of unlocking any previously locked progress notes may be a violation by You and Your other Team Members of applicable professional standards and/or applicable law. You understand and agree that You are bound by various laws and regulations, including but not limited to HIPAA, which require that You preserve the availability, accuracy, integrity, and confidentiality of PHI and personally identifiable information. You also acknowledge and agree that all Your activity within the Services is automatically logged (including into audit logs), including the unlocking and locking of the progress notes, and that regulators or others may audit such activity.
9.5 Additional User Data Restrictions. You may not, and will ensure that other Team Members do not, post, upload, store, or share any User Data that:
is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or otherwise create liability or violate any local, state, national, or international law;
may infringe, misappropriate, or otherwise violate any patent, trademark, trade secret, copyright, or other Intellectual Property Right or another proprietary right of any party, or is otherwise protected by Intellectual Property Rights, other proprietary rights (including trade secret or privacy rights), unless You or Your Team Members are the owner(s) of such rights or have permission from the rightful owner to upload or submit the User Data and to grant SerenePractice all of the licenses granted herein; or
contains any private or Personal Information of a third party or a Client, without such third party’s or Client’s consent.
9.6 Additional Rights to User Data. Although SerenePractice has no obligation to screen, edit, or monitor User Data, We may delete, remove, or suspend the use of User Data at any time and for any reason. By accessing or using the Services, you consent to the processing, transferring, and storing information about you and your users in and to the United States and other countries, where users may not have the same rights and protections as provided under local law.
9.7 Transfer of User Data and Account Ownership.
You agree that You are responsible for the provision of access to User Data and the sharing of User Data amongst those who are Users or those who you retain, Clients, and any family members thereof, in accordance with applicable law.
If any Team Member (who is a natural person) who has access to the Services under the Account dies, becomes incapacitated or otherwise is unable to provide services to any User. You will be solely responsible for arranging for the transfer of User Data, or modification of access, in compliance with applicable law and this Agreement. This includes, but may not be limited to, providing identity verification or execution of necessary authorizations required by SerenePractice or applicable regulations or licensing bodies. Such transfer or modification of access will comply with applicable law and SerenePractice’s standard policies and procedures.
The Organization may replace the Account Owner in accordance with SerenePractice’s policies and procedures. If an Account Owner is no longer employed by or authorized to bind the Organization, dies, or otherwise becomes incapacitated, the Organization will notify SerenePractice as set forth below and identify the individual to whom to transfer the Account Owner role in accordance with applicable laws and regulations. Suppose the Organization does not notify and identify a replacement Account Owner to SerenePractice. In that case, SerenePractice may attempt to do so, and if an appropriate individual can be identified, it will transfer the Account Owner role to that individual. The appropriate representatives of the deceased or incapacitated will initiate contact with SerenePractice to provide the required documentation to transfer the role of the Account Owner as outlined above. IT IS RECOMMENDED THAT YOU CREATE CLEAR DIRECTIONS REGARDING ACCESS TO AND TRANSFER OF USER DATA IN THE EVENT OF YOUR DEATH OR INCAPACITATION AND SHARE THESE DIRECTIONS WITH A QUALIFIED AND TRUSTED INDIVIDUAL IN ADVANCE. Requests for transfer of the Account Owner role, either by You or by an individual legally designated to assume ownership, must be initiated by contacting Our Customer Success team via a Help Request. If the individual legally designated to assume ownership does not have an active SerenePractice account from which to submit a Help Request, they should visit the SerenePractice sign-in page directly. To create and submit a Help Request, click “Not a Customer? Ask us a question”.
You agree that User Data that is PHI may only be accessed by or transferred to an appropriate party, pursuant to HIPAA rules and applicable state regulations.
10. Data Privacy
More information about SerenePractice’s privacy practices is available in the SerenePractice Privacy Policy and the SerenePractice Client Portal Privacy Policy.
In providing You with the Services, SerenePractice will not sell any Personal Information contained in User Data. SerenePractice will not retain, use, or disclose the Personal Information You provide to Us about Your Clients except for the specific purposes permitted under this Agreement, including Section 9.
We will make no use of PHI that is not permitted by this Agreement, the BAA (as defined below), or prohibited by applicable law, including but not limited to HIPAA.
It is Your responsibility to comply with all applicable privacy and data protection laws and to ensure that You have provided all required notices and obtained all necessary consents (including with respect to third parties access) from Users and that Users (including without limitation Your Clients) have agreed to the collection of User Data (including PHI) and the access of User Data by You, by SerenePractice, and, where applicable, other third parties. Any sample documentation that SerenePractice provides for obtaining consent or other information from Users is for illustration only. You alone (and not SerenePractice) are responsible for ensuring that such documentation is adequate and enforceable. SerenePractice does not provide legal or compliance advice, and You are responsible for retaining competent counsel and advisors for these purposes.
If We receive a subpoena, court order, or other legal request compelling the disclosure of any of Your Clients’ User Data (including PHI) or any of Your data or information or any User Data, We will notify You of the existence of such subpoena, court order or other legal request before disclosing the PHI or other data or information or any User Data, unless ordered to not do so by a court of competent jurisdiction, requested not to do so by law enforcement, or unless Our legal counsel advises Us that prior notification is not required or in violation of applicable law.
In the event of termination of this Agreement, whether by Your cancellation of the Agreement, Your breach of this Agreement, or as otherwise provided in this Agreement, there is an export feature in the Services that will enable You to retrieve Your User Data contained within the Services before the Account termination date. It is Your sole responsibility (not SerenePractice’s) to manage, maintain, store, or export files or files containing the User Data within the Services to ensure the secure preservation of User Data (including PHI) for You and Your Clients pursuant to federal and state law.
For purposes of complying with the requirements of HIPAA to the extent applicable, You and SerenePractice agree to be bound by each of the terms and provisions of the SerenePractice Business Associate Agreement, which can be found at https://www.SerenePractice.com/baa/ (the “BAA”) and which is incorporated in full by this reference. If any provision hereof is potentially or actually in conflict with the requirements of the Business Associate Agreement with respect to the treatment of Protected Health Information, the terms of the Business Associate Agreement shall prevail.
11. Third Party Materials, Service Providers
The Services may incorporate, contain links to, or otherwise allow connections to, third-party websites, servers, and online products, services, or environments, including other materials not owned or controlled by SerenePractice (“Third Party Materials”). You agree that SerenePractice is not responsible or liable for Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness, or safety of Third Party Materials, or any Intellectual Property Rights therein or thereto. Nothing in this Agreement will be deemed a representation or warranty by SerenePractice with respect to any Third Party Materials. SerenePractice has no obligation to monitor Third Party Materials, and SerenePractice may block or disable access to any Third Party Materials (in whole or in part) through the Services at any time. Your use of Third Party Materials is at Your own risk and is subject to any additional terms and conditions of use for such Third-Party Services.
SerenePractice may refer names of certain third party service providers (“Service Providers”) to You upon Your request or in connection with the Services. Any Service Providers referred to You by SerenePractice are not owned or controlled by SerenePractice. You agree that SerenePractice is not responsible or liable in any way for the acts or omissions of any Service Providers, including, without limitation, any negligent, willful, or illegal conduct. You further agree to conduct Your own investigation, and due diligence regarding any Service Providers referred to You by SerenePractice. You agree to defend (at SerenePractice’s option), indemnify, and hold harmless SerenePractice from all damages, liabilities, claims, expenses, and losses relating to the referral of Service Providers to You.
12. Payment and Billing Services
To use payment processing services and 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 the Account is created for the Services and afterward through the Services. No transactions will occur in Your 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:
SerenePractice may conduct certain activities related to Stripe Payment Processing Services, such as communicating information about transactions and refunds, Stripe account balance adjustments, handling disputes (including chargebacks), and other features described in Stripe documentation.
Specific use, recurring, or application fees may be charged to You for Using 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.
SerenePractice may be used and shared with Stripe. Stripe may use and share with SerenePractice, all Transaction Data, Payment Data, data about Your Account, Your activity on Your Stripe accounts, and transactions. In addition, You hereby grant permission to SerenePractice to work with and interact with Stripe, to copy Your Transaction Data, Payment Data, and other User Data from Your Account to the Services and Your related Stripe account for the benefit of facilitating or improving the use or interoperability of the Stripe credit card processing services with the Services. As a condition of SerenePractice enabling payment processing services through Stripe Payment Processing Services, You must provide SerenePractice accurate and complete information about You and Your practice and business.
You agree that if SerenePractice, or Stripe (or other payment processors) is required under applicable law to obtain Your consent 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 SerenePractice, or Stripe (or other payment processors), as applicable, to send You such notices, forms and returns by e-mail or other electronic formats.
You agree to only enter Payment Data into designated payment fields within the app and not to enter any Payment Data into notes fields or other non-payment-related areas of the app.
“Stripe” is a registered trademark of Stripe, Inc.
Where Your Clients pay for Your services through the Services, 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.
You authorize that outstanding sums due and owing as a result of chargebacks, ACH rejects or reversals, disputes, over-payments, payment errors, and invalidated payments and other refunds or credits (each and collectively “Chargeback(s)”), may be automatically debited from Your deposit accounts for such purpose on a daily basis and that non-sufficient funds for these debits, or blocking or otherwise rendering inaccessible any such deposit accounts, are grounds for an increase in fees, suspension of the Services or termination of this Agreement. In the event of any such occurrence leading to non-payment of any sums due for Chargebacks or otherwise, SerenePractice reserves the right to withdraw such sums from Your biller accounts, offset or net settle these sums (i.e., deduct funds owed from disbursements to You), against future deposits, or withhold future deposits until such sums are paid in full, at any time to ensure payment of the same. The foregoing rights survive termination of this Agreement.
In the event of a Chargeback, You will be responsible to refund (or allow SerenePractice to chargeback from You) the fee imposed on SerenePractice by the payment processor.
SerenePractice reserves the right to suspend Your Stripe account in the event of excessive disputes or chargebacks.
SerenePractice 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.
SerenePractice reserves the right to withhold payment to You of the funds in Your Stripe account when a lien or levy has been placed on Your Account and to prevent payouts until the lien or levy is resolved.
SerenePractice reserves the right to refund transactions that have been classified as fraudulent after investigation.
SerenePractice reserves the right to deny online payment processing for any reason, including for fraud or other suspicious activity.
You will ensure that no payments are processed in any country sanctioned by the U.S. Office of Foreign Assets Control (OFAC), which list may be updated by OFAC from time to time.
13. Other Products Offered by Stripe and its Partners
Subject to separate terms between You and Stripe and/or Stripe’s bank partner, Stripe, may market to you certain financial products and services, including loan products. SerenePractice may send you marketing communications regarding such products on Stripe’s behalf. For the avoidance of doubt, SerenePractice is not a loan broker, loan servicer or debt collector. Rather, all brokering, servicing and collections activity will be undertaken by Stripe, and all loans will be originated by Stripe’s bank partner.
14. Interruption of Service
You are responsible for obtaining, maintaining, and paying for all hardware, software and all telecommunications and other services needed to use the Services.
SerenePractice may on occasion need to interrupt or suspend the Services, with or without prior notice, to protect the integrity or functionality of the Services or for maintenance purposes. You agree that SerenePractice is not liable for any interruption or suspension of the Services (whether intentional or not), and You understand that neither You nor any other Users will be entitled to any refunds of fees or other compensation for interruption or suspension of service. Likewise, You agree that in the event of loss of any User Data, We will not be liable for any purported damage or harm arising therefrom.
15. SerenePractice’s Intellectual Property Rights and Limited License Granted to You
15.1 Intellectual Property Rights in Services. You acknowledge and agree that except for the express licenses granted herein, SerenePractice and its licensors retain all of their respective Intellectual Property Rights in and to the Services, including in and to Our trademarks, service marks, trade names, logos, domain names, taglines, and trade dress (collectively, the “SerenePractice Marks”). You understand that such Intellectual Property Rights are apart from any rights You may have in User Data You upload or submit to the Services, as discussed above. Copyright, trademark and other laws of the United States and foreign countries protect the Services and the SerenePractice Marks. All proprietary notices and disclaimers that are included in the Services and any Content must be reproduced and not be altered in any way.
15.2 Limited License to Services. Subject to the additional terms that apply to specific Services as set forth in Section 17 (Service-Specific Terms), SerenePractice hereby grants You a non-exclusive, non-transferable, non-sublicensable, limited, and revocable license to access and use the Services in the Territory, in each case expressly conditioned upon You and Your Account remaining active, in good standing, and in full compliance with this Agreement.
15.3 License Restrictions. Subject to the additional terms that apply to specific Services as set forth in Section 17 (Service-Specific Terms), You will not (and will ensure that other Team Members will not):
Allow any person or entity not authorized by SerenePractice to use or access the Services;
Attempt to copy any ideas, features, functions or graphics contained in the Services;
Use the Services in the operation of a service bureau, an application service provider or for any other purpose intended to benefit a party other than You;
Alter or modify all or any part of the Services;
Sell, assign, sublicense, rent, lease or otherwise transfer all or any part of the Services or any rights in connection therewith;
Attempt to translate, disassemble, decompile, reverse assemble, reverse engineer all or any part of the Services or otherwise attempt to derive the source code of the Services, including to design or build a competitive product or service;
Impersonate any person or entity without their consent, or otherwise misrepresent Your affiliation;
Engage in malicious, disruptive, or other conduct that impedes or interferes with other Users’ normal use of the Services;
Attempt to gain unauthorized access to any other User’s account with SerenePractice, password, or User Data; or
Launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses, Trojan horses, or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation or performance of the Services. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Services’ root directory, SerenePractice grants to the operators of public search engines permission to use spiders to copy materials from the Services for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. SerenePractice reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
15.4 Feedback and other Input. You or other Team Members may provide suggestions, ideas and/or feedback (collectively, “Feedback”) to SerenePractice or in connection with Your or other Team Members’ use of the Services regarding the Services or other SerenePractice products or services, including products in research or development. SerenePractice will exclusively own and have title to all Feedback provided by You and other Users, and You hereby irrevocably and perpetually assign (and agree to irrevocably and perpetually assign) all right, title, and interest, including Intellectual Property Rights, in and to such Feedback. The foregoing assignment is made without any duty to account to You or to any other persons or entities.
16. Content
16.1 License to Content. With respect to any Content that You elect to procure in connection with the Services, and subject to (a) the applicable fees (if any) for access to such Content and (b) any and all third-party terms and conditions that are applicable to such Content, SerenePractice hereby grants You a limited, non-exclusive, non-transferable license to permit You and Your other Team Members to use Content made accessible to You, solely for use as part of the Services. Such Content may include sample clinical and practice documentation and templates. The prices for access to such Content, if any, are listed at https://www.SerenePractice.com/pricing/ and are subject to change on notice. All Content accessed or used by You and other Users must be accurately reproduced and cannot be altered in any way, and all additional proprietary notices and disclaimers that are included in any Content must be reproduced.
16.2 License Restrictions. Except as expressly provided herein, the foregoing license in Section 16.1 (License to Content) specifically excludes (a) distribution, transfer, sale, lease, license, or the making available of Content or any portion thereof or the data therein or derived therefrom separate and apart from the Services; (b) use or distribution of Content outside the Territory; (c) broadcasting, displaying, or making available Content in any unsecured environment or public computer-based information system, including the Internet; and (d) creating derivative works, including translations of Content. You do not acquire any title or proprietary interest in the Content under this Agreement. Use of other copyrighted works not licensed under this Agreement, including other copyrighted works owned by third parties, are subject to separate terms and conditions, and You are responsible for securing the necessary rights for use of other works.
16.3 WILEY Content. With respect to Your access and use of the WILEY® PracticePlanners content (the “WILEY Content”), the following additional terms will apply:
You acknowledge and agree that SerenePractice and its licensor, WILEY® (where applicable) are not engaged in rendering professional services nor in providing expert forms.
You and other Team Members must apply Your medical or psychological expertise, or other expertise to the WILEY Content and thereby make any necessary revisions to the WILEY Content.
The WILEY Content is not warranted to assist You in meeting clinical documentation requirements, as You are responsible for Your own clinical documentation.
THE SAMPLE DOCUMENTATION, CONTENT, DATASETS AND ALL INFORMATION IN THE WILEY CONTENT ARE PROVIDED “AS IS” AND EXPRESS AND IMPLIED WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS OR ANY PARTICULAR PURPOSE, OR QUALITY, ACCURACY, COMPLETENESS AND/OR SUITABILITY ARE DISCLAIMED.
Neither You nor other Team Members may resell, transfer, sublicense or use the WILEY Content as part of a hosted environment or in any way available to third parties.
17. Service-Specific Terms
Without limiting the provisions of Article 14 above, the following additional terms and conditions apply to Your access and use of the following specific Services:
17.1 Telehealth Service. SerenePractice Telehealth is a solution for You to use if You or other Team Members wish to meet with Clients remotely using video, audio, and other media capabilities. SerenePractice Telehealth is part of the Services and allows You and other Team Members to schedule appointments and connect with Clients for Telehealth consultations.
Prior to using SerenePractice Telehealth with Clients, You must give written notice to any person who attends a session or other recipient of Your services through Telehealth (such as Clients) and it is Your sole obligation to obtain a written consent from such attendees and recipients that contains the following minimum terms:
SerenePractice Telehealth is NOT an emergency service. In the event of an emergency, recipients of Telehealth must use a phone to call 911 or You or an emergency service.
Though recipients of Telehealth may be in direct, virtual contact with You and other Team Members through SerenePractice Telehealth, neither SerenePractice nor the SerenePractice Telehealth service provides any medical or healthcare services or advice including, but not limited to, emergency or urgent medical services.
You are solely responsible for the delivery of any healthcare, medical advice or care through SerenePractice Telehealth by You and other Team Members.
Recipients of Telehealth should not assume that You and other Team Members have access to any or all of the User Data in the Services, or that such information is current, accurate or up-to-date. SerenePractice is not responsible for You or any other Team Member’s reliance or non-reliance on any information in the SerenePractice Telehealth service.
You are solely responsible for determining whether You and/or other Team Members are able and/or permitted to deliver therapy, healthcare, or other virtual services. For each Telehealth session, You are solely responsible for: (i) confirming that You or the applicable Team Member has the necessary licenses, connections and qualifications to use SerenePractice Telehealth to deliver the session; and (ii) providing healthcare, advice or other care services using SerenePractice Telehealth within the scope of Your licenses, qualifications and applicable regulatory requirements.
YOU ACKNOWLEDGE AND AGREE THAT SerenePractice IS SOLELY PROVIDING THE TELEHEALTH TECHNOLOGY PLATFORM AND IS NOT PROVIDING MEDICAL ADVICE OR HEALTHCARE SERVICES. SerenePractice DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED – AND SHALL HAVE NO LIABILITY OR RESPONSIBILITY – IN CONNECTION WITH ANY HEALTHCARE SERVICES, MEDICAL ADVICE, PRESCRIPTIONS OR MEDICATION RECOMMENDATIONS DELIVERED THROUGH THE SERVICES.
You may not, nor may You permit other Users to upload, store or share any User Data with respect to Telehealth in a manner that violates this Agreement or applicable law. Although We have no obligation to screen, edit or monitor User Data, We may delete or remove User Data at any time and for any reason.
Telehealth sessions can support up to two (2) individual participants who are Clients, in addition to one person who is an employee or agent of the Organization. A session with any number of individual participants exceeding two (2) is an unsupported version of the product and may be suspended or interrupted by SerenePractice. Additionally, without limiting the right to suspend or interrupt the session as provided in this Agreement, We have the right to remove Telehealth sessions with more than two (2) participants (as provided above) from Your Account if the network experiences adverse impact, or for any reason, at any time.
Users of SerenePractice Telehealth are solely responsible for their conduct while accessing or using the SerenePractice Telehealth. Such conduct will not violate this Agreement or any applicable law, contract, intellectual property or other third-party right or commit a tort. Without limitation to the foregoing, You will not (and will ensure that other Users do not):
Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Attempt to circumvent any content-filtering techniques We employ or attempt to access any feature or area of the SerenePractice Telehealth Service that Users are not authorized to access; or
Use the SerenePractice Telehealth Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates this Agreement.
WhiteBoard provided on SerenePractice Telehealth is not to be used for signing any legal documents or documentation relating to patient care.
17.2 Professional Website Service. SerenePractice offers a Professional Website service that enables You to create and publish a website for Your practice. By creating a Professional Website, You understand and agree to the following:
Your Professional Website Domain Name. When You create a Professional Website, You may use the specific domain hosted by SerenePractice. If You have already registered Your own domain with a third-party provider, You can connect that existing domain to Your Professional Website. If You choose to connect Your own domain to Your Professional Website, You are responsible for ensuring that You are compliant with any third-party terms and agreements with respect to Your use of Your own domain.
License. By submitting content to publish on Your Professional Website, You hereby grant SerenePractice a world-wide, royalty-free, non-exclusive license to reproduce, modify, adapt, and publish Your content for the purpose of displaying, distributing and promoting Your Professional Website and developing, improving, and marketing SerenePractice’s products and services (including the Services). This license also allows SerenePractice to make any publicly posted content available to third parties selected by SerenePractice so that these third parties can analyze and distribute the content through their services.
Your Content. Other than the Content You license from us, You retain all of your ownership rights to the content You publish on Your Professional Website, and You are entirely responsible for any harm resulting from the content published on Your Professional Website. You are responsible for (i) obtaining all rights and licenses to use (and grant us the license to use) the content You publish and (ii) ensuring that the content You publish is accurate, up to date, and legally compliant, and does not infringe any other’s Intellectual Property Rights, and You are solely responsible for instructing us on what content to publish and modify. If You instruct us to delete content, We will use reasonable efforts to remove it from public view, but You acknowledge that caching or references to the content may not be made immediately unavailable. While We do not regularly review or revise the content You choose to publish on Your Professional Website, We reserve the right to remove any content that, in our discretion, violates this Agreement. Without limiting the restrictions in the foregoing, content and other materials You post to Your Professional Website may not contain URLs or links to websites that compete with the Service or any partner of SerenePractice; or URLs or links linking to or redirecting any payment, gateway, e-commerce, processor or other website or portal that facilitates issuing of invoices by You and/or payments to You.
Publishing Testimonials. If You choose to publish testimonials on Your Professional Website, You are responsible for obtaining the necessary consent from the individual (e.g., Your Client or colleague) prior to publishing the testimonial on Your Professional Website.
Web Traffic. We may use a third party to measure Your Professional Website’s audience and usage. By hosting Your website through SerenePractice, You agree to assign the traffic relating to Your Professional Website to SerenePractice and authorize Us to engage with the third party on Your behalf for third party audience measurement reports. You understand that Your Professional Website will not receive credit for traffic in these reports, and You must not assign Your website’s traffic to any other party. If We or a third party require additional documentation to verify ownership of Your Professional Website or domain name, You agree to make reasonable efforts to accommodate such requests.
Advertisements. We reserve the right to display advertisements on Your Professional Website unless You have purchased a plan that includes the removal of ads.
Attribution; Legal Terms. We reserve the right to display attribution text or links in Your Professional Website footer or toolbar, attributing SerenePractice or the theme author, for example. We also reserve the right to require You to display legal terms that protect SerenePractice. These attributions and legal terms may not be altered or removed by You.
17.3 Directory Service.
When You create an Account with SerenePractice, You agree to provide SerenePractice information that is accurate, complete, and current at all times with respect to You, and Your specialties, credentials, practice and/or business. Failure to do so constitutes a breach of this Agreement, which may result in immediate termination of Your Account on the Services.
You may opt out of being listed in the Directory Service by changing the settings in Your Account.
You and all other Team Members are legally liable and responsible for Your Listing Information on the Directory Service. You undertake and assume all liability and risks arising out of and/or associated with Your Listing Information, including anyone’s reliance on Your Listing Information, as published in the Directory Service that makes You personally identifiable. You represent that You own, or have the legal entitlement or necessary permissions to post, publish, use and/or authorize the use of Your Listing Information. You will not hold Your Listing Information or listing or adverts out to be sponsored or endorsed by Us.
Without limiting the licenses granted in Section 9 (User Data), We may use Your Listing Information in various ways, including making it available publicly online or off-line, reformatting it, incorporating it into marketing materials, advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in line with their own websites and media platforms. SerenePractice may edit or remove Your Listing Information at any time at Our sole discretion. SerenePractice is not responsible for Your Listing Information or its accuracy or completeness.
17.4 Measurement Based Care.
SerenePractice offers Measurement-Based Care service that enables You to track patient outcomes through a variety of methods.
While SerenePractice may provide access to certain general medical information, SerenePractice does not provide any medical or healthcare services or advice including, but not limited to, emergency or urgent medical services. You are solely responsible for the delivery of any healthcare, medical advice or care through SerenePractice by You and the Team Members.
The Measurement-Based Care service does not constitute a medical device, clinical decision support system, or other diagnostic tool. You and Your permitted Team Members are solely responsible for clinical decision-making, diagnosis, and treatment of Your Clients.
SerenePractice is not responsible for the quality or effectiveness of the assessments or measurements provided through the Measurement-Based Care service. The assessments and measurements are based on clinical research, and You, or a qualified health care provider, are responsible for selecting the appropriate assessments for Your Clients.
SerenePractice makes no representation or warranty that any particular assessment, measure, scale, or treatment is safe, appropriate, or effective. SerenePractice does not endorse or advocate for any specific treatment method.
17.5 Mobile Applications. SerenePractice may make available one or more software applications to access the other Services via a mobile device. To use any such software applications, You must have a mobile device that is compatible with the applicable software application.
SerenePractice does not warrant that the software applications will be compatible with any mobile device used by You or any other User. You may use mobile data in connection with the software applications and may incur additional charges from Your wireless provider for these Services. You agree that You are solely responsible for any such charges.
Subject to Your compliance with this Agreement, and solely for so long as You are permitted by SerenePractice to use the applicable software applications, SerenePractice hereby permits You, on a limited, non-exclusive, non-transferable, non-sublicensable, revocable basis, to install and use a compiled code copy of the applicable software applications for one account on one mobile device owned or leased solely by You, to access and use the other Services. The foregoing license grant is not a sale of the software applications or any copy thereof, and SerenePractice or its third-party partners or suppliers retain all right, title, and interest in the software applications (and any copy thereof).
You acknowledge that SerenePractice may from time to time issue upgraded versions of the software applications, and may automatically electronically upgrade the version of the software applications that You are using on the applicable mobile device. You consent to such automatic upgrading on such mobile device, and agree that this Agreement will apply to all such upgrades.
Any third-party code that may be incorporated in the software applications is covered by the applicable open source or third-party license agreement, if any, authorizing use of such code. Any attempt by You to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. SerenePractice reserves all rights not expressly granted under this Agreement.
Additional Terms for Apps from Apple App Store. The following applies to any SerenePractice software applications You acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms of Service is solely between You and SerenePractice, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the Apple App Store terms of service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to You. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms of Service and any law applicable to SerenePractice as provider of the Software. You acknowledge that Apple is not responsible for addressing any claims of You or any third party relating to the Apple-Sourced Software or Your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms of Service and any law applicable to SerenePractice as provider of the software applications. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or Your possession and use of that Apple-Sourced Software infringes that third party’s Intellectual Property Rights, SerenePractice, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Service. You and SerenePractice acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Terms of Service as relates to Your license of the Apple-Sourced Software, and that, upon Your acceptance of this Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service as relates to Your license of the Apple-Sourced Software against You as a third-party beneficiary thereof.
Additional Terms for Apps from Google Play Store. The following applies to any SerenePractice software applications You acquire from the Google Play Store (“Google-Sourced Software”): (i) You acknowledge that these Terms of Service is between You and SerenePractice only, and not with Google, Inc. (“Google”); (ii) Your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms; (iii) Google is only a provider of the Google Play Store where You obtained the Google-Sourced Software; (iv) SerenePractice, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to You with respect to Google-Sourced Software or this Terms of Service; and (vi) You acknowledge and agree that Google is a third-party beneficiary to these Terms of Service as they relate to SerenePractice’s Google-Sourced Software.
17.6 SerenePractice Enterprise. When you create an account with SerenePractice, you agree to provide SerenePractice information that is accurate, complete, and current, including but not limited to, information with respect to You, your specialties, credentials, calendar and scheduling information, practice and/or business ("Practice Information"). You hereby irrevocably grant SerenePractice a non-exclusive, world-wide, perpetual, royalty-free, assignable, sub-licensable, transferable rights to use this Practice Information for any purpose whatsoever to provide services to You. You also irrevocably grant any other platforms and websites, including third party platforms and websites, the right to access and use the Practice information to provide services to You.
18. Releases
Except to the extent caused by SerenePractice’s gross negligence or willful misconduct, You agree not to hold SerenePractice liable for any User Data, the actions or inactions of You or other Users of the Services or of other third parties. As a condition of access to the Services, and except to the extent arising out of SerenePractice’s gross negligence or willful misconduct, You release SerenePractice (and its officers, directors, shareholders, agents, parents, subsidiaries, and employees) from claims, demands, losses, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any Dispute You have or claim to have with one or more other Users of the Services or with other third parties, including whether or not SerenePractice becomes involved in any resolution or attempted resolution of the Dispute. If You are a California resident, You waive California Civil Code Section 1542 (as may be amended). The statute currently provides: “A general release does not extend to claims that the creditor or the releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or release party.” If You are a resident of another jurisdiction, You waive any comparable statute or doctrine.
19. Disclaimer of Express and Implied Warranties
SerenePractice PROVIDES THE SERVICES, THIRD PARTY MATERIALS (INCLUDING CONTENT), AND YOUR ACCOUNT, STRICTLY ON AN “AS IS” BASIS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO VALUE, EITHER EXPRESS OR IMPLIED, IS GUARANTEED OR WARRANTED WITH RESPECT TO THE SERVICES, ANY THIRD PARTY MATERIALS (INCLUDING CONTENT), OR YOUR ACCOUNT. NOTWITHSTANDING ANY INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE IN USER DATA OR ANY EXPENDITURE ON YOUR PART, SerenePractice AND YOU EXPRESSLY DISCLAIM ANY COMPENSABLE VALUE RELATING TO OR ATTRIBUTABLE TO ANY DATA RELATING TO YOUR ACCOUNT RESIDING ON SerenePractice’S SERVERS. YOU ASSUME ALL RISK OF LOSS FROM USING THE SERVICES ON THIS BASIS.
SerenePractice does not ensure continuous, error-free, secure or virus-free operation of the Services, Third Party Materials (including Content), or Your Account, and You understand that You shall not be entitled to refunds or other compensation based on SerenePractice’s failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to You.
SerenePractice does not guarantee that by mere use of the Services You will be in compliance with HIPAA or other applicable law, and You understand and agree that You are responsible for maintaining administrative, technical and physical safeguards necessary to ensure the confidentiality, availability, and integrity with respect to Your PHI and to otherwise comply with HIPAA and other applicable law.
20. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL SerenePractice OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, EQUITY OWNERS, MANAGERS, SUBSIDIARIES, AGENTS OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE OR EXEMPLARY DAMAGES OR DISGORGEMENT OR COMPARABLE EQUITABLE REMEDY, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST DATA (INCLUDING USER DATA) OR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICES (INCLUDING ITS MODIFICATION OR TERMINATION), THIRD PARTY MATERIALS (INCLUDING CONTENT), YOUR ACCOUNT (INCLUDING ITS TERMINATION OR SUSPENSION), OR THIS AGREEMENT, WHETHER OR NOT SerenePractice HAS BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL SerenePractice’S CUMULATIVE LIABILITY TO YOU EXCEED ONE HUNDRED FIFTY DOLLARS (U.S. $150.00). Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is found to be impermissible, such limitation will not apply to You.
21. Indemnification
At SerenePractice’s request, You agree to defend, indemnify and/or hold harmless SerenePractice, its officers, directors, shareholders, parents, employees, subsidiaries, and agents from all damages, liabilities, claims, losses, and expenses, including without limitation attorneys’ fees and costs, arising from: (i) any breach or alleged breach of this Agreement by You or other Users, including without limitation Your representations and warranties relating to User Data; (ii) allegations by any third party that User Data (including the use thereof) is (A) false, intentionally misleading, defamatory, or infringes, misappropriates, or otherwise violates such third party’s Intellectual Property Rights, privacy rights, right of publicity, or other proprietary rights; (B) contains material that is unlawful, including illegal hate speech or pornography; (C) exploits or otherwise harms minors; or (D) violates or advocates the violation of any law or regulation; (iii) other claims, losses and causes of action asserted by any Users (including without limitation Your Clients); (iii) use of, or activities in connection with, the Services and Third Party Materials (including Content); or (iv) Your or other Team Members’ negligent, willful or illegal conduct. In any matter subject to the provisions of this Article 21, without the express written consent of SerenePractice, You will not settle any such matter or admit liability if, upon doing so, You are admitting liability or fault on the part of SerenePractice. SerenePractice reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with Our defense of such claim and provide us with full information in connection therewith.
22. Legal Relationship Between You and SerenePractice; No Third Party Beneficiaries
You acknowledge that Your participation in the Services does not make You a SerenePractice employee and that You do not expect to be, and will not be, compensated by SerenePractice for such activities, and You will make no claim inconsistent with these acknowledgements. In addition, no agency, partnership, joint venture, franchise relationship is intended or created by this Agreement. Except as expressly set forth herein, there are no third party beneficiaries, intended or implied, under this Agreement.
23. Suspension and Termination
The Account Owner may terminate this Agreement by closing the Account at any time for any reason. Subject to SerenePractice’s obligations pursuant to Section 10 (Data Privacy), in such event, SerenePractice shall have no further obligation or liability to You under this Agreement or otherwise. You may not suspend Your Account. SerenePractice may, at its sole discretion, provide You a grace period prior to termination, in the event of a breach or Your failure to pay fees and charges, without waiving its rights hereunder to terminate immediately upon such events. We may suspend without notice, or terminate with notice provided in accordance with Section 29 (Notices), this Agreement (which will result in automatic termination of Your Account) or the access of any Team Member to the Services, if We determine in Our discretion that such action is desirable for any reason, or advisable to comply with applicable legal requirements, or to protect the rights or interests of SerenePractice or any third party. Under no circumstances, will You be entitled to compensation or a refund for any interruption, suspension or termination, and You acknowledge SerenePractice will have no liability to You or any other Users in connection with any interruption, suspension or termination.
24. Termination of Account or Agreement
24.1 Termination of Licenses. Upon termination or expiration of this Agreement, all licenses granted by SerenePractice to use the Services will automatically terminate, and all User Data in Your Account will be accessible to You no more than sixty-four (64) days after termination or expiration of this Agreement. This time frame is also applicable to trial accounts. The Account Owner is responsible for exporting all Account data and ensuring the secure preservation of PHI for Your Clients pursuant to federal and state law and ethical requirements. During the time frame beginning on termination or expiration of this Agreement, Your access to the Services will be limited to downloading Your User Data.
24.2 Liability for Unpaid Fees. Upon termination or expiration of this Agreement (which will automatically result in termination of Your Account), You will not receive any refund of any amounts previously paid, and You will remain liable for any charges incurred or unpaid amounts owed by You to SerenePractice.
24.3 Survival of Terms. The following terms will survive any termination or expiration of this Agreement: Sections 1, 5, 7-13, 14 (last two sentences), 15, 16.2, 16.3(d), 16.3(g), 16.3(h), 18-29 (inclusive), 31, and 32.
25. Government Use and Export Control
25.1 Government Use. If the Service is being used by or on behalf of the United States Government or another governmental entity, then the following provision applies. The Services are “commercial computer software” and/or “commercial computer software documentation” as defined in Federal Acquisition Regulation (48 C.F.R. Chapter 1, or “FAR”) 2.101 or similar law, regulation, or provision. In accordance with FAR 12.212, Department of Defense FAR Supplement (“DFARS”) 227.7202, or other similar law, regulation, or provision, as applicable, any use, reproduction, release, performance, display, or disclosure of the Services and any accompanying documentation by the U.S. government or other governmental entity will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. All terms of this Agreement apply except to the limited extent the U.S. government or other governmental entity is prohibited by federal or other procurement law from agreeing to such terms. If and to the extent any provision in this Agreement is so prohibited, such provision shall be deemed modified only to the extent reasonably necessary to conform to applicable law while giving maximum effect to the Agreement as written.
25.2 Export Controls and Sanctions Compliance. The Services originate in the United States and are subject to United States export control and sanctions laws, including the Export Administration Regulations (“EAR”) and the regulations of the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). The Services may not be directly or indirectly exported or re-exported to (a) any person or entity to whom the provision of such Services is prohibited under the EAR (including the prohibition on providing items subject to the EAR to anyone on the EAR Entity List or Denied Person List); (b) any country or territory subject to a comprehensive embargo by the United States (currently Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine) without appropriate licensing authority; or (c) any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. Government (including any person or entity identified on OFAC’s list of Specially Designated Nationals (“SDNs”) or any entity that is fifty percent (50%) or more owned by one or more SDNs). In addition, the Services may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Services.
26. Dispute Resolution
IN THE EVENT OF A DISPUTE BETWEEN YOU AND SerenePractice (INCLUDING ANY DISPUTE OVER THE VALIDITY, ENFORCEABILITY, OR SCOPE OF THIS DISPUTE RESOLUTION PROVISION), OTHER THAN WITH RESPECT TO CLAIMS FOR INJUNCTIVE RELIEF AND DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, THE DISPUTE WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MAY OPT OUT. IN ORDER TO OPT OUT OF THIS ARBITRATION PROVISION, YOU MUST NOTIFY SerenePractice IN WRITING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH US BY ARBITRATION, AND SUCH NOTICE SHOULD BE DELIVERED BY MAIL TO 2834 COLORADO AVENUE, SANTA MONICA, CA 90404 WITHIN 30 DAYS OF THE EARLIER OF (A) THE DATE YOU FIRST ACCESS OR USE THE SERVICES; AND (B) THE DATE YOU CLICK OR TAP ANY BUTTON OR BOX MARKED “ACCEPT,” “AGREE,” OR “OK” (OR A SIMILAR TERM) IN CONNECTION WITH THIS AGREEMENT.
The arbitration will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf, as amended by this Agreement. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by You or SerenePractice that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude You from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against SerenePractice for You.
You agree that this Agreement and the relationship between You and SerenePractice shall be governed by the Federal Arbitration Act and the laws of the State of California without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods. If You opt out of arbitration pursuant to the terms above, then the following jurisdiction and venue provision shall apply: All Disputes arising out of or related to this Agreement for which arbitration does not apply will be subject to the exclusive jurisdiction and venue of the state and federal courts located in the City and County of Los Angeles, California. Notwithstanding this, each party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s Intellectual Property Rights in any court of competent jurisdiction where the other party resides or has its principal place of business.
CLASS ACTION WAIVER
YOU AGREE THAT ANY PROCEEDINGS TO ARBITRATE, LITIGATE OR OTHERWISE RESOLVE A DISPUTE IN ANY FORUM ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, CONSOLIDATION OF YOUR DISPUTE WITH OTHER ARBITRATIONS, OR ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL ARE NOT PERMITTED AND ARE WAIVED BY YOU, AND AN ARBITRATOR WILL HAVE NO JURISDICTION TO HEAR SUCH CLAIMS. IF A COURT OR ARBITRATOR FINDS THAT THE CLASS ACTION WAIVER IN THIS SECTION IS UNENFORCEABLE AS TO ALL OR SOME PARTS OF A DISPUTE, THEN THE CLASS ACTION WAIVER WILL NOT APPLY TO THOSE PARTS. INSTEAD, THOSE PARTS WILL BE SEVERED AND PROCEED IN A COURT OF LAW, WITH THE REMAINING PARTS PROCEEDING IN ARBITRATION. IF ANY OTHER PROVISION OF THIS DISPUTE RESOLUTION SECTION IS FOUND TO BE ILLEGAL OR UNENFORCEABLE, THAT PROVISION WILL BE SEVERED WITH THE REMAINDER OF THIS SECTION REMAINING IN FULL FORCE AND EFFECT.
27. Assignment of Agreement and Account
You may not assign this Agreement or Your Account without Our prior written consent. You may not transfer or sublicense any licenses granted by SerenePractice in this Agreement without Our prior written consent. We may assign this Agreement, in whole or in part, and all related rights, licenses, benefits and obligations, without restriction, including the right to sublicense any rights and licenses under this Agreement without Your consent.
28. Integration, Construction, Interpretation of Section Headings and Severability
The agreements, understandings and policies referenced in this Agreement sets forth the entire agreement and understanding between You and SerenePractice with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements or understandings. SerenePractice reserves the right to modify this Agreement at any time upon notification to You as provided in Section 29 (Notices). If any future change is unacceptable to You, You should discontinue using the Services. Your continued use of the Services will always indicate Your acceptance of this agreement and any changes to it.
You acknowledge that no other written, oral or electronic communications will serve to modify or supplement this Agreement, and You agree not to make any claims inconsistent with this understanding or in reliance on communications not part of this Agreement. The section headings used herein, including descriptive summary sentences at the start of each section, are for convenience only and shall not affect the interpretation of this Agreement. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in these Terms will be construed as if followed by the phrase “without limitation.” If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.
29. Notices
SerenePractice may provide notice to You and obtain consent from You (1) through the Website or other portions of the Services, including within your Account; (2) by electronic mail at the electronic mail address associated with Your Account; and/or (3) by written mail communication to You at the address associated with Your Account. You must submit all notices required or permitted under this Agreement to SerenePractice, LLC, c/o Compliance Manager, 8234 Colorado Ave., Suite 200 Santa Monica, CA 90404.
30. SerenePractice Community Terms of Use
SerenePractice Account Owners and Team Members may participate in the SerenePractice Community Site (and other SerenePractice sponsored public and private social media sites) that permits You to communicate with other account owners of the Services and their personnel. By accessing the SerenePractice Community Site, You agree to the Terms of Use of the community site in the SerenePractice Community.
31. Consent to Electronic Communications
We provide Users information by email or posting through the Services. The emails and other communications You will receive from Us include those relating to billing, Account verification, platform and Services training (sometimes called “on-boarding materials”), survey or interview requests (for product and customer service improvement purposes), marketing and promotions, and administrative announcements (including related to this Agreement, Our Privacy Policy, or security incident notifications). You understand that by using the Services and agreeing to this Agreement, SerenePractice will send to You the foregoing communication types. You do have the right, and may instruct Us, to opt out of communications related to survey or interview requests and marketing and promotions but hereby waive the right to opt out of any other communications to the extent permitted by applicable law. You are responsible for obtaining either requisite consent or ceasing email, text messages and other communication to a patient or Client in the event that such patient or Client opts out of receipt of any such communications.
32. DMCA Notice
It is SerenePractice’s policy to respond to alleged copyright infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If You believe that Your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify SerenePractice’s copyright agent as set forth in the DMCA. For Your complaint to be valid under the DMCA, You must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that You claim has been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Services;
Information reasonably sufficient to permit SerenePractice to contact You, such as Your address, telephone number, and, e-mail address;
A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that You are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Re: DMCA Notice - SerenePractice
Address: Executive Counsel PLC, 2883 Macao Drive,
Herndon VA 20171 Attn: Nelson Blitz.
Tel. 703-391-1188
Email: nblitz@exec-counsel.com
Under federal law, if You knowingly misrepresent that online material is infringing, You may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying SerenePractice and its affiliates that Your copyrighted material has been infringed. The preceding requirements are intended to comply with SerenePractice’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding Your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, SerenePractice has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. SerenePractice may also at its sole discretion limit access to the Services and/or terminate the User accounts of any Users who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.