PLATFORM SERVICES AGREEMENT AND TERMS OF USE
Practice Nomad LLC (“Practice Nomad”) provides an online platform through which Licensors (defined below) may create listings for Licensed Spaces (defined below), and Licensees (defined below) may learn about, reserve and contract for Licensed Spaces directly with the Licensors.
The following terms and conditions (“Terms of Use”) constitute a binding legal agreement between Practice Nomad and the person or entity accepting these Terms of Use (“User”). These Terms of Use govern the use of the Practice Nomad website located at www.practicenomad.com (the “Site”) and any related services (together with the Site, the “Service”).
Practice Nomad may modify, add to, or delete portions of these Terms of Use, including the pricing terms, at any time. If Practice Nomad changes these Terms of Use, Practice Nomad will post a notice that it has made such changes on the Site and will indicate at the bottom of these Terms of Use the date these terms were last revised. Any revisions to these Terms of Use will become effective as of the date of posting on the Site.
By accepting these Terms of Use, User is agreeing to the following:
· a release by User of all claims for damages against Practice Nomad that may arise now or in the future out of User’s use of the Service;
· arbitration of disputes with Practice Nomad (unless User follows the opt-out procedure) and the class action waiver described in the Section titled “Arbitration” below
· the terms of Practice Nomad’s Privacy Policy, a copy of which is located at www.practicenomad.com/privacy
By clicking “I Agree” below or otherwise accessing, using or participating in the Service, User agrees to be bound by these Terms of Use, whether or not User becomes a registered user of the Service. If User does not agree to abide by these Terms of Use, User is not authorized to use, access or participate in the Service.
1. Authority to Contract. If User uses the Service on behalf of a company or other organization, User represents and warrants that it is authorized to bind such company or organization to these Terms of Use and to act on behalf of such company or organization with respect to any actions User takes in connection with the Service. User agrees to respond promptly and completely to requests from Practice Nomad for additional information that Practice Nomad deems necessary to determine User’s authority to act on behalf of a company or organization. Practice Nomad may suspend or terminate User’s access, and its company’s or organization’s access, to the Service and its account, if Practice Nomad has reason to believe that User is not authorized to act on behalf of the company or organization for whom User claims to be acting in connection with the Service.
2. Definitions. As used in these Terms of Use, the following capitalized terms have the meanings set forth below:
a) “Licensor” means a User that offers for booking or otherwise makes available a Licensed Space through the Service.
b) “Licensee” means a User that reserves a Licensed Space through the Service.
c) “Licensed Space” means, collectively, any exam room(s), office(s), patient waiting space(s), reception area(s), break room(s), conference room(s), shared common areas (including hallways and bathrooms) and any other space within a medical, dental or other healthcare professional office space made available to a Licensee by a Licensor under the terms of a License Agreement.
d) “License Fee” means the monthly recurring charge payable for use of the Licensed Space and any additional services provided by a Licensor, if applicable.
e) “User” means a person or entity using the Services. A User may be a Licensee, Licensor, or both.
3. Accounts; Registration Data; Account Security. In order to reserve a Licensed Space from another User through the Service, or to offer for booking or otherwise make available a Licensed Space to another User through the Service, a User must register for a User account. In connection with registering for, using or participating in the Service (whether as a Licensee or Licensor), User agrees to (a) provide accurate, current and complete information about User and its organization as requested by Practice Nomad (“Registration Data”); (b) maintain the confidentiality of its password and other information related to the security of its account; (c) maintain and promptly update the Registration Data and any other information User provides to Practice Nomad, to keep such information accurate, current and complete; and (d) be fully responsible for all use of its account and for any actions that take place through its account.
4. Licensor Terms. Use of the Service by Licensors is also governed by the Licensor Terms located at www.practicenomad.com/terms-and-conditions (“Licensor Terms”). The Licensor Terms are hereby incorporated into these Terms of Use by reference. By using the Service as a Licensor, the Licensor is consenting to and is bound by the Licensor Terms.
5. Transactions Between Licensees and Licensors. User acknowledges that the Service is a forum to allow anyone to find, reserve, book, offer to book, and make available Licensed Spaces. Transactions, communications and interactions with any other Users (including any interactions between a Licensee and a Licensor), including transactions, communications and interactions initiated through the Service, are solely between such Users, and Users are solely responsible for such transactions, communications and interactions. User acknowledges that Practice Nomad does not itself own or operate any Licensed Space, does not sell, resell, furnish, provide, rent, re-rent, manage or control any Licensed Space, and does not undertake any independent inspection, survey or other examination of, and makes no representations or warranties as to, any Licensed Space.
6. No Referrals. By entering into this Agreement, Licensor and Licensee agree that upon the execution of a License Agreement, neither Licensor nor Licensee shall make any referrals, directly or indirectly, to the other party and neither Licensor nor Licensee shall recommend or arrange for such referrals, directly or indirectly, to the other party, if such referral(s) would be prohibited by Applicable Law (as such term is defined in the License Agreement).
7. No Screening; Limitation of Practice Nomad’s Services. Practice Nomad does not screen Licensors and Licensees, or the Licensed Spaces themselves. Each Licensor is solely responsible for screening and assessing any Licensees it is considering granting access to its Licensed Space, and each Licensee is solely responsible for assessing the suitability of any Licensed Space it is considering using. Practice Nomad has no control over the quality, suitability or availability, and does not act as an insurer of, any Licensed Space, or over the reliability, integrity or conduct of any Licensor or Licensee. Practice Nomad provides the Service as a platform and its responsibilities are limited to: (i) facilitating the availability of the Site and the Service to allow Licensees and Licensors to transact business with one another, and (ii) serving as a limited payment collection agent of Licensor under the terms hereof.
8. License Agreements. By completing a reservation for a Licensed Space via the Service, each Licensee acknowledges and agrees that it intends to enter into a license agreement directly with the applicable Licensor, the terms of which are located at www.practicenomad.com/license-agreement (“License Agreement”). The License Agreement includes any and all additional terms, conditions and policies provided by the Licensor relating to the use of such Licensed Space, including building security procedures, IT access and use procedures, maximum occupancy limitations and other terms or procedures provided by the Licensor (“House Rules”). In the event of any conflict between the License Agreement and these Terms of Use, these Terms of Use shall govern and control. In the event of any conflict between the terms and conditions of the House Rules and the License Agreement, as applicable, the terms set forth in the House Rules shall control. USER UNDERSTANDS AND AGREES THAT ALTHOUGH PRACTICE NOMAD IS A THIRD PARTY BENEFICIARY UNDER, IT IS NOT A PARTY TO ANY LICENSE AGREEMENTS (OR OTHER AGREEMENTS) ENTERED INTO BETWEEN LICENSORS AND LICENSEES.
9. Compliance with License Agreement. Each User’s use of the Service is dependent upon such User’s compliance with the License Agreement. Consequently, User agrees to abide by, and cause its respective employees, agents, licensees, invitees, contractors, directors, shareholders, members and representatives to abide by, the License Agreement. Any acknowledgement and acceptance of the License Agreement, as well as of any applicable House Rules, by a Licensor and Licensee establishes an agreement directly between the Licensee and the applicable Licensor. The Licensors, not Practice Nomad, are solely responsible for honoring any confirmed bookings and making available any Licensed Spaces reserved through the Service. Licensors and Licensees, not Practice Nomad, will be responsible for complying with the applicable License Agreement and performing their respective obligations under any such agreements.
10. Reservations. To reserve a Licensed Space, there is a one-time reservation fee payable in the amount of fifty-percent 50% of the License Fee for such Licensed Space (“Reservation Fee”). The Reservation Fee is authorized at the time the reservation is submitted via the Service, but it is not settled unless and until a License Agreement is executed by Licensor and Licensee. If a License Agreement is not executed, the Reservation Fee will automatically expire within 7 to 30 days, depending on the applicable rules of the payment processor. The Licensee, Licensor or Practice Nomad may cancel an open reservation any time, and upon such cancellation, any pending Reservation Fee shall be voided. Reservations for Licensed Space require a minimum length of one calendar month. Renewals of reservations, if any, shall be in accordance with the License Agreement. If the Licensor changes the License Fee after a reservation is submitted but before a License Agreement is executed, then any overpayment of the Reservation Fee shall be applied to the first month’s License Fee, and any underpayment of a Reservation Fee shall be payable when the first License Fee payment is made.
11. Billing. During the term of the applicable License Agreement, Licensee will be billed the License Fee as follows: Practice Nomad will ask for Licensee’s credit card information and billing address or other payment information at the time of the reservation, and Practice Nomad will process the License Fee payment on behalf of the Licensor. License Fee payments are automatically processed monthly in advance, on or about the 25th day of each month during the term of the License Agreement. Practice Nomad is acting as the Licensor’s limited payment collection agent, and the License Fee paid to Practice Nomad shall be considered the same as a payment made directly to the Licensor. Licensee agrees to pay all License Fees on or before the applicable due date.
12. Initial Payment. The initial payment will be equal to (a) (i) the License Fee for the first full calendar month of the reservation (if the reservation starts on the first calendar day of the month), or (ii) a pro-rated portion of the License Fee for the first partial month of the reservation (if the reservation starts after the first calendar day of the month), and (b) any applicable taxes.
13. Late Payments. Licensors are notified of late payments by Practice Nomad (via email) when Licensees do not pay in full within 10 days after the due date. Any remedies of the Licensor with respect to late payments shall be as set forth in the License Agreement. Practice Nomad may charge a late payment fee of 5% of the unpaid amount. In addition, if any such amount remains unpaid for a period of 30 days after the date the same is due, interest at an annual rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum interest rate permitted by law, will be payable on such sum (or so much thereof as shall be unpaid) from the date said sum becomes due until the date the unpaid amount is paid.
14. Security Deposits. Practice Nomad will also process an additional amount equal to the License Fee for a full calendar month as a security deposit (the “Security Deposit”). The Security Deposit will be collected by Practice Nomad on behalf of the Licensor and held for the benefit of the Licensee and Licensor throughout the term of the reservation, pursuant to the terms and conditions of the License Agreement. The Security Deposit will be returned to the Licensee at the expiration of the License Agreement pursuant to the terms thereof.
15. Cancellation Terms. Cancellations of any License Agreement shall be governed by the terms and conditions of the License Agreement.
16. Termination of Account. A User may terminate its Practice Nomad account at any time by providing Practice Nomad with notice of termination in accordance with the instructions available through the Service. User’s access to, use of, or participation in the Service, including any content therein, may be prevented by Practice Nomad at any time after termination of the account. Notwithstanding anything herein to the contrary, upon termination of a User’s account, Practice Nomad will remove User’s Profile (defined below) and cease displaying the applicable Profile Content (defined below), including the Licensed Space listings if User is a Licensor. Practice Nomad may terminate or suspend a User’s account or ability to use the Service, in whole or in part, without notice in the event that (a) User violates these Terms of Use, the License Agreement (including any applicable House Rules) or violates any other rules that govern the use of the Service, (b) User’s conduct may harm Practice Nomad or others or cause Practice Nomad or others to incur liability, or (c) as otherwise determined by Practice Nomad in its sole discretion. If Practice Nomad terminates or suspends your account or ability to use the Service, (i) any reservations User placed as a Licensee and any reservations User accepted as a Licensor which are not subject to an executed License Agreement at the time of termination or suspension will be immediately terminated, and the applicable Reservation Fee will be voided; and (ii) Practice Nomad may communicate to the applicable Licensee and Licensor that such reservation has been cancelled and such Reservation Fee is void. If there is a License Agreement in effect at the time of such termination, then the applicable User accounts shall remain open, and these Terms of Use shall continue in effect with respect to such accounts until the expiration of the term of the License Agreement, provided, that, User’s account being terminated shall have no further right to list Licensed Spaces or place reservations for Licensed Spaces, as applicable, during the time that such User’s account remains open.
17. Service Modifications. Practice Nomad may modify the Service, and all content, software and other items used or contained in the Service, at any time. References on the Service to any companies, organizations, products, or services, or other information do not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Practice Nomad.
18. Privacy. The terms and conditions of Practice Nomad’s Online Privacy Policy are located at www.practicenomad.com/privacy (click on the Privacy Policy link) and are incorporated herein by reference. In the event of a conflict between these Terms and the Privacy Policy, the Privacy Policy shall govern.
19. Proprietary Rights in Site Content. All content on the Site and otherwise available through the Service, including User Content, designs, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement (“Site Content”), are the proprietary property of Practice Nomad, its Users or its licensors. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, other than as expressly permitted in these Terms of Use.
20. Limited License; Restrictions. Users may access and use the Service and the Site Content and download or print a reasonable number of copies of portions of the Site Content to which User has properly gained access solely for User's personal, non-commercial use, provided that User maintains all copyright or other proprietary notices on all copies of such Site Content. Except for a User’s own User Content, a User may not publish or otherwise distribute Site Content, including via the Internet or any intranet or extranet site, or incorporate the Site Content in any other database or compilation. Users may not use any data mining, robots, scraping or similar data gathering or extraction methods to obtain Site Content. Any use of the Site or the Site Content other than as specifically authorized herein is prohibited and will automatically terminate a User’s rights with respect to use of the Service and the Site Content granted herein. All rights of Practice Nomad or its licensors that are not expressly granted in these Terms of Use are reserved to Practice Nomad and its licensors.
21. Profile Content. Users may be able to display certain information on designated portions of the Site or otherwise through the Service regarding such User or its company or organization including, if a User is a Licensor, a Licensed Space (a “Profile”). A Profile will display to other Users certain of User’s Registration Data and other content about User or its company or organization including, if User is a Licensor, its Licensed Space, that User uploads or otherwise provides to Practice Nomad for use in its Profile (collectively, “Profile Content”). User agrees to provide accurate and current information in its Profile and to promptly update the Profile Content to keep it accurate and current.
22. User Content. User is solely responsible for the Profile Content, messages, notes, text, information, offerings, images, links and any other content that it uploads, publishes, displays or otherwise provides to Practice Nomad for display (hereinafter, “post”) on or through the Service, or transmits to or shares with other Users or to third parties via the Service (collectively, “User Content”). User may not post, transmit, or distribute User Content that it did not create or that it does not have permission to post. User understands and agrees that Practice Nomad may, but is not obligated to, review the Site and may delete or remove (without notice) any Site Content or User Content in its sole discretion, for any reason or no reason, including User Content that Practice Nomad believes violates these Terms of Use. Practice Nomad has no backup or storage obligations regarding User Content. User is solely responsible at its sole cost and expense for creating backup copies and replacing any User Content the User posts or stores on the Site or provides to Practice Nomad. Practice Nomad does not verify the accuracy, completeness, reliability or authenticity of any User Content, including any Licensed Space descriptions or Licensed Space availability information provided by Licensors, and makes no representations or warranties with respect to any User Content.
23. License to Practice Nomad. When User posts User Content to the Site, User grants to Practice Nomad an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute such User Content. Subject to the rights granted to Practice Nomad in these Terms of Use, User retains ownership of its User Content.
24. Trademarks. “Practice Nomad” and “Practice where you Please”, together with the other graphics, logos, designs, page headers, button icons, scripts and service names on the Site, are the trademarks or trade dress of Practice Nomad in the U.S. and other countries (collectively, the “Practice Nomad Marks”). User may not use the Practice Nomad Marks, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion or create the impression that Practice Nomad endorses any product or service. User may not reproduce or use the Practice Nomad Marks without the prior written permission of Practice Nomad.
25. User Conduct. User agrees not to do any of the following in connection with its use of the Service and to otherwise use the Service in compliance with these Terms of Use:
a) use automated scripts to collect information from or otherwise interact with the Service;
b) use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Service;
c) impersonate any person or entity, or falsely state or otherwise misrepresent User or your affiliation with any person or entity, including giving the impression that any content User uploads, posts, transmits, distributes or otherwise makes available emanates from Practice Nomad;
d) upload, post, transmit, distribute or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other prohibited form of solicitation;
e) upload, post, transmit, distribute, store or otherwise make publicly available on the Site any private information of any third party, including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
f) interfere with or damage the Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
g) intimidate or harass another, or promote sexually explicit material, violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
h) upload, post, transmit, distribute or otherwise make available any material which does or may infringe any copyright, trade mark or other intellectual property rights of any other person;
i) upload, post, transmit, distribute or otherwise make available any material which is defamatory of any person, obscene, offensive, hateful or inflammatory;
j) upload, post, transmit, distribute, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense;
k) use or attempt to use another's account, service or system without authorization from Practice Nomad, or create a false identity on the Service;
l) use the Service in a manner that may create a conflict of interest or undermine the purposes of the Service, such as trading reviews with other Users or writing or soliciting shill reviews;
m) use the Service in a manner that violates any law (including the CAN-SPAM Act of 2003) or otherwise conduct illegal activities in connection with your use of the service;
n) upload, post, transmit, distribute, store or otherwise make available any answers, responses, comments, opinions, analysis or recommendations that User is not properly licensed or otherwise qualified to provide; or
o) upload, post, transmit, distribute, store or otherwise make available content that, in the sole judgment of Practice Nomad, is objectionable or which restricts or inhibits any other person from using the Site, or which may expose Practice Nomad or its Users to any harm or liability of any type.
26. Additional Representations and Warranties. In addition to any other representations and warranties in these Terms of Use, User represents and warrants that:
a) User Content and all other content submitted to the Service through its account or otherwise posted, transmitted, or distributed by User on or through the Service: (i) does not violate or infringe upon the rights of any third party (including copyright, trademark, privacy, publicity or other personal or proprietary rights), (ii) does not contain libelous, defamatory or otherwise unlawful material, and (iii) is truthful and accurate; and
b) it is not located in a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, and User is not listed on any U.S. government list of prohibited or restricted parties.
27. Third Party Websites and Content. The Site may contain (or User may be sent through the Service) links to other web sites (“Third Party Sites”) as well as articles, photographs, text, graphics, pictures, designs, sound, video, information, and other content or items belonging to or originating from third parties (“Third Party Content”). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Practice Nomad, and Practice Nomad is not responsible for any Third Party Sites accessed through the Site or any Third Party Content posted on, available through the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Content. Inclusion of, linking to or permitting the use of any Third Party Site or any Third Party Content does not imply approval or endorsement thereof by Practice Nomad. If User decides to leave the Site and access the Third Party Sites or to access or use any Third Party Content, User does so at its own risk and User should be aware that Practice Nomad’s terms and policies no longer govern. User should review the applicable terms and policies, including privacy and data gathering practices, of any site to which User navigates from the Site or relating to any applications User uses or installs from the Site.
28. Eligibility. This Service is intended solely for users who are 18 years of age or older. Any registration by, use of or access to the Service by anyone under 18 is unauthorized and in violation of these Terms of Use. By using the Service, User represents and warrant that it is 18 years of age or older.
29. Copyright Policy. Practice Nomad respects the intellectual property rights of others and expects Users of the Service to do the same. Practice Nomad complies with the federal Digital Millennium Copyright Act (“DMCA”), the text of which may be found on the U.S. Copyright Office Website at http://www.copyright.gov/legislation/dmca.pdf. Practice Nomad will respond to notices of alleged copyright infringement that comply with the DMCA and other applicable law and are properly provided to Practice Nomad. If User believes that any User Content has been copied or used in a way that constitutes copyright infringement, please provide Practice Nomad with the following information:
a. a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
b. identification of the copyrighted work claimed to have been infringed;
c. identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Practice Nomad to locate the material;
d. User’s contact information, including address, telephone number, and an email address;
e. a statement by User that it has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
f. a statement that the information in the notification is accurate, and, under penalty of perjury, that User is authorized to act on behalf of the copyright owner.
Practice Nomad reserves the right to remove User Content alleged to be infringing without prior notice and at Practice Nomad’s sole discretion. In appropriate circumstances, Practice Nomad may also terminate a User's account if User is determined to be a repeat infringer. Practice Nomad’s designated copyright agent for notice of alleged copyright infringement appearing on the Services is:
Practice Nomad
225 West 35th Street
Suite 1400
New York, NY 10001
Tel: 833-696-6623
Fax: 800-785-7408
30. Disclaimers. PRACTICE NOMAD PROVIDES THE SERVICE, AND ALL CONTENT THEREIN, TO LICENSORS AND LICENSEES "AS IS," AND, EXCEPT AS PROVIDED HEREIN, PRACTICE NOMAD AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE, ALL CONTENT THEREIN, AND THE LICENSED SPACES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. PRACTICE NOMAD CANNOT GUARANTEE AND DOES NOT PROMISE TO LICENSORS AND LICENSEES ANY SPECIFIC RESULTS FROM USE OF THE SERVICE OR A LICENSED SPACE. WITHOUT LIMITING THE FOREGOING, PRACTICE NOMAD DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, CONTENT OR MATERIALS MADE AVAILABLE THROUGH THE SERVICE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE; PRACTICE NOMAD DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ANY LICENSED SPACE RESERVATION OR BOOKING WILL MEET YOUR REQUIREMENTS; THAT ANY LICENSED SPACE MEETS APPLICABLE LEGAL STANDARDS AND IS SAFE AND SUITABLE FOR YOUR INTENDED USE; AND PRACTICE NOMAD DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SERVICE, OR ITS SERVERS, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
FURTHER, PRACTICE NOMAD MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PROPRIETY, INCLUDING THE FAIR MARKET VALUE, OF ANY LICENSE FEE, WHICH WILL BE INDEPENDENTLY DETERMINED BY A LICENSOR.
THE DISCLAIMERS SET FORTH ABOVE IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
31. Release of Claims. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRACTICE NOMAD IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR TRANSACTIONS, COMMUNICATIONS AND INTERACTIONS WITH ANY OTHER USERS, INCLUDING ANY LICENSE AGREEMENTS THAT A USER ENTERS INTO. PRACTICE NOMAD DOES NOT CONTROL THE CONTENT CONTAINED IN ANY LISTINGS BY LICENSORS, OR THE CONDITION, LEGALITY OR SUITABILITY OF ANY LICENSED SPACES OR LICENSE FEES. USER HEREBY RELEASES PRACTICE NOMAD FROM ANY AND ALL CLAIMS, CAUSES OF ACTIONS, OBLIGATIONS OR LIABILITIES ARISING FROM OR RELATING TO SUCH TRANSACTIONS, COMMUNICATIONS AND INTERACTIONS, INCLUDING ANY LICENSE AGREEMENTS THAT USER ENTERS INTO (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE LICENSE FEE THAT USER AGREES TO CHARGE OR PAY, AS APPLICABLE), LISTINGS ON THE SITE, AND THE QUALITY, CONDITIONS OR SUITABILITY OF ANY LICENSED SPACE (COLLECTIVELY, THE “RELEASED CLAIMS”).
USER HEREBY ACKNOWLEDGES THAT USER IS AWARE OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
WITH FULL AWARENESS AND UNDERSTANDING OF THE ABOVE PROVISIONS, WITH RESPECT TO THE RELEASED CLAIMS, USER HEREBY WAIVES ANY RIGHTS USER MAY HAVE UNDER SECTION 1542, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT TO CALIFORNIA CIVIL CODE SECTION 1542, INCLUDING, WITHOUT LIMITATION, THE RELEVANT LAWS OF NEW YORK, DELAWARE, ILLINOIS, OKLAHOMA AND TEXAS.
32. Limitation on Liability. IN NO EVENT WILL PRACTICE NOMAD OR ITS SUPPLIERS, OR THEIR MEMBERS, MANAGERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES OR SUPPLIERS, BE LIABLE TO USER OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS, LOST DATA, PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, ARISING FROM THE USE OF THE SERVICE, ANY CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SERVICE, OR A LICENSEE'S USE OF A LICENSED SPACE, EVEN IF PRACTICE NOMAD IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PRACTICE NOMAD BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY LOSS OR DAMAGE ARISING OUT OF ANY TRANSACTIONS, COMMUNICATIONS, INTERACTIONS OR DISPUTES BETWEEN A LICENSEE AND A LICENSOR. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRACTICE NOMAD’S LIABILITY TO ANY USER OR ANY PARTY CLAIMING THROUGH ANY USER FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY USER TO PRACTICE NOMAD FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.
33. Indemnity. User agrees to indemnify and hold Practice Nomad harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorneys’ fees, arising out of or in connection with any User Content that User posts or distributes on or through the Service, its use of or participation in the Service, its interactions with other Users of the Service, and any violation of these Terms of Use, the License Agreement, the Licensor Terms, or of any law or the rights of any third party.
34. Arbitration; Governing Law.
THE PARTIES TO THESE TERMS OF USE AGREE THAT ALL DISPUTES ARISING UNDER OR OUT OF THIS AGREEMENT WILL BE SETTLED PURSUANT TO THE TERMS HEREOF AND WILL BE BROUGHT ONLY IN AN INDIVIDUAL CAPACITY (AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING). PLEASE READ IT CAREFULLY. USER MAY OPT OUT OF THIS ARBITRATION AGREEMENT BY FOLLOWING THE OPT OUT PROCEDURE DESCRIBED BELOW.
Arbitration Agreement.
User agrees that if it has any dispute with Practice Nomad relating in any way to these Terms of Use or from access to or use of the Service, User will first contact Practice Nomad and attempt to resolve the dispute informally. If the parties are unable to resolve the dispute informally, each party each agrees to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms of Use by binding arbitration. If User is an individual user, he or she may opt out of this Arbitration Agreement within 30 days of the date User first accesses or uses the Service by following the procedure described below.
Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolve by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. User agrees that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that User and Practice Nomad are each waiving the right to a trial by jury or to participate in a class action. This Arbitration Agreement will survive any termination of these Terms of Use.
If User intends to seek arbitration, after following the informal dispute resolution procedure, User must first send written notice to Practice Nomad of its intent to arbitrate (“Notice”). The Notice should be sent by registered or certified mail to Practice Nomad, Attn: Legal Dept., 225 West 35th Street, Suite 1400, New York NY 10001. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. The arbitration will be administered by the JAMS under the Streamlined Arbitration Rules and Procedures (the “Rules”) by a single arbitrator. The arbitration will be conducted in the County of New York, NY, U.S.A. The fees of the arbitrator and the reasonable out-of-pocket expenses incident to the proceedings (including, without limitation, reasonable legal and expert witness fees) shall be paid by the losing party. Nothing in this Arbitration Agreement shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to or use of the Service.
If User does not want to arbitrate disputes with Practice Nomad and User is an individual, User may opt out of this Arbitration Agreement by sending an email to: [email protected] within 30 days of the date User first accesses or uses the Service.
ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS GUEST IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. USER AGREES THAT, BY ENTERING INTO THESE TERMS OF USE, USER AND PRACTICE NOMAD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then the entirety of this Arbitration Agreement will be null and void.
If for any reason a claim proceeds in court rather than in arbitration, the dispute will be governed by the laws of the State of New York and the FAA without regard to or application of its conflict of law provisions or User’s state or country of residence, and will be brought solely in the federal or state courts located in New York County and the United States District Court for the Southern District of New York. Licensee, Licensor and Practice Nomad each hereby irrevocably and unconditionally submit to the jurisdiction of such courts for purposes of any such legal proceedings. Licensee, Licensor and Practice Nomad each irrevocably waive, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any proceeding brought in any such court or any claim that a legal proceeding commenced in such court has been brought in an inconvenient forum. LICENSEE, LICENSOR AND PRACTICE NOMAD EACH IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY JURY FOR ANY CLAIM ARISING UNDER THESE TERMS OF USE.
35. Miscellaneous. These Terms of Use, the Licensor Terms and the Privacy Policy constitute the entire agreement between User and Practice Nomad regarding the use of the Service and supersede any prior agreements between User and Practice Nomad relating to use of the Service. The failure of Practice Nomad to exercise or enforce any right or provision of these Terms of Use or the Licensor Terms shall not constitute a waiver of such right or provision in that or any other instance. If any provision of these Terms of Use or the Licensor Terms is determined to be unlawful, void or for any reason unenforceable, such determination shall not affect the validity and enforceability of any of the remaining provisions. User may not assign, transfer or delegate in any manner these Terms of Use or the Licensor Terms or the rights and obligations hereunder or thereunder to any third party.
Last revised on June 6, 2020.
LICENSOR TERMS
The following additional terms and conditions are part of the Terms of Use located at www.practicenomad.com/terms-and-conditions and specifically govern the use of the Service by Licensors. The Terms of Use and these Licensor Terms (collectively, “Licensor Terms”) together govern each Licensor’s use of the Service. Any defined terms used but not defined in these Licensor Terms shall have the meaning ascribed to them in the Terms of Use.
1. Listing a Licensed Space. There is no general charge to list a Licensed Space on the Service, but Practice Nomad may offer certain premium listing opportunities (e.g., pictures) from time to time in consideration for a one-time fee per listing (a “Listing Fee”). Any applicable Listing Fee will be noted on the Site and will be an optional service.
2. Transactions Between Licensees and Licensors for Booking Licensed Spaces. Practice Nomad offers the Service as a platform to connect Licensors and Licensees and facilitate the booking of Licensed Space(s) between Licensors and Licensees. If a Licensee requests a booking of a Licensed Space and uses a Licensed Space, any agreement entered into with such Licensee is between the Licensor and the Licensee, and Practice Nomad is not a party to that agreement, even if that agreement consists of Practice Nomad’s form of License Agreement.
3. Policies. Licensor agrees to abide by the following terms and policies:
a. Licensor is solely responsible for maintaining the Licensed Space in safe condition and in compliance with all applicable laws, regulations and ordinances and any applicable building requirements;
b. Licensor is solely responsible for ensuring that the Licensed Space is clean and ready to use at the start of each reservation period;
c. Licensor is solely responsible for ensuring that the booking of the Licensed Space through the Service and use of the Licensed Space pursuant to a License Agreement does not violate any lease or other agreements relating to Licensed Space, any building policies or any applicable laws or regulations; and
d. If Licensor approves a booking of your Licensed Space to begin at a specified time or on a specified date, Licensor shall ensure that the Licensed Space is available to the Licensee at that time or on that date. In the event the Licensed Space is not available to the Licensee at that time or on that date, Licensor shall make available to the Licensee at the originally scheduled time and date another Licensed Space in the same building of equal or larger size and similar configuration for the same License Fee.
4. License Fees; Payment to Licensor. Licensor is solely responsible for establishing the License Fee for its Licensed Space through the Service. Licensor acknowledges that (a) Practice Nomad does not undertake any investigation, analysis or inquiry as to the propriety of the License Fee under any applicable law, rule or regulation, (b) Practice Nomad accepts payments from Licensees as a limited collection agent for the Licensor and (c) Practice Nomad’s obligation to pay Licensor such License Fees is subject to and conditional upon successful receipt of the associated payments from Licensees. Practice Nomad does not guarantee payments to Licensors for amounts that have not been successfully received by Practice Nomad from Licensees, and Practice Nomad shall have no obligation make any payments to Licensor prior to receipt of the License Fees from the Licensee.
5. Changes to License Fees. Licensor may change the License Fees for any listing at any time in its sole discretion, provided that such changes will not affect the amount billed during the term of any License Agreement which was executed prior to the change. For renewals, changes to the License Fee will take affect the first full month beginning at least 60 days after the change is made through the Service. Licensor MUST notify Practice Nomad of a change to any License Fee through the Service. Notifying the Licensee directly is not sufficient and will not increase the License Fee through the Service.
6. Collection and Payment. Practice Nomad will collect on Licensor’s behalf as a limited payment collection agent the following fees (“Fees Collected”):
a) License Fees that were (i) started, (ii) renewed or (iii) cancelled but not fully refunded under the cancellation terms of the License Agreement; and
b) for Deposits, the portion of the Deposit claimed by the Licensor through the Service within 30 days after the termination date of the applicable License Agreement.
Payments are remitted from Practice Nomad to Licensor on a monthly basis within 5 days of the end of previous month (i.e. by 5th of each following month). Practice Nomad will pay Licensor the difference between the Fees Collected and Service Charges due (“Amount Due”). The “Service Charges” and other terms are set forth in the Pricing Addendum at the end of these Licensor Terms (“Licensor Pricing Addendum”). Licensor agrees to pay the Service Charges. If the Service Charges exceed the Fees Collected, Practice Nomad will invoice Licensor for any amount owed by Licensor that exceeds US $250 and Licensor shall pay such amounts within 30 days after invoicing.
7. Withholding of Payment. Practice Nomad reserves the right to withhold payment to Licensor’s account of any amounts otherwise due to Practice Nomad under these Licensor Terms, or any amounts due as a result of a breach of these Licensor Terms or the License Agreement by Licensor, pending Practice Nomad's reasonable investigation of such breach. In addition, Practice Nomad may withhold or deduct from amounts to be paid to a Licensor in connection with these Licensor Terms any charges or fees that are disputed or otherwise not paid by a Licensee or a credit card company or other payment provider, and Practice Nomad may charge Licensor (and Licensor shall pay) any such amounts in the event that Practice Nomad has already paid such amounts to Licensor.
8. Taxes. Licensor agrees to pay all applicable taxes or charges imposed by any government entity in connection with Licensor’s use or Practice Nomad's provision of the Service. Specifically, Licensor is responsible for any sales or value-added taxes or charges imposed by any government entity in connection with your use or Practice Nomad's provision of the Service. Where such taxes apply, Licensor may choose to provide sales or value-added tax information to Practice Nomad, and, if Licensor provides such information, Practice Nomad will calculate and add the specified sales or value-added tax to the listed Fees and will collect the specified sales or value-added tax along with the Fees Collected (the “Calculated Sales Tax”). Following such collection, Practice Nomad will report and remit the Calculated Sales Tax to the applicable Licensor when paying the Amount Due. Services Charges will not apply to Calculated Sales Tax.
9. Account Information. To ensure proper payment, Licensor is solely responsible for providing and maintaining accurate contact and payment information associated with your account, which includes, without limitation, applicable tax information, and User shall keep complete and accurate records regarding Licensed Space usage and payment by Licensees. Practice Nomad may audit such records upon reasonable notice to confirm proper payment hereunder and otherwise confirm compliance with these Licensor Terms. If Practice Nomad believes that it is obligated to obtain tax information and Licensor does not provide this information after being requested to do so, Practice Nomad may withhold your payments until Licensor provides this information or confirm in a manner that is satisfactory to Practice Nomad that Licensor is not a person or entity from whom Practice Nomad is required to obtain tax information. Any bank fees arising from any error or omission in your payment information or contact information may be deducted from your payments. If Licensor disputes any payment made hereunder, Licensor must notify Practice Nomad in writing within 30 days of any such payment; failure to so notify Practice Nomad shall result in the waiver by Licensor of any claim relating to any such disputed payment.
10. Additional Representations and Warranties. In addition to any other representations and warranties in the Terms of Use, Licensor represents and warrants that:
a. any Licensed Space Licensor offers for booking hereunder is free of any known conditions or defects that would pose a hazard to or risk the safety of any Licensee; and
b. Licensor has sufficient rights in and to the Licensed Space to participate in the Service as a Licensor, including any applicable permits, and your participation in the Service as a Licensor will not violate or result in the breach of any agreement between Licensor and any third party, including any lease agreement or other agreement relating to the Licensed Space.
11. Non-Circumvention. Licensor agrees that if Practice Nomad introduces Licensor to a potential Licensee of your Licensed Space through the Service, Licensor shall not make any direct transactions with such Licensee for any Licensed Space outside of the Service. In the event that Licensor is in breach of this provision, Licensor agrees that Practice Nomad is entitled to collect the Service Fee under any License Agreement between Licensor and such Licensee for a period of one year following the date of such introduction. Practice Nomad will invoice the Licensor directly for any Service Fees due under this Section. For purposes of this section, an introduction will be deemed to have occurred upon the earliest of the following events:
a) Licensor views the details of a Licensed Space on the Site;
b) Licensor reserves the Licensed Space;
c) Practice Nomad sends a “Hot Lead” email to the Licensor with Licensee contact details and Licensed Space requirements;
d) Practice Nomad sends Licensee an email with a recommended Licensed Space based on Licensee’s previous preferences or search requirements; or
e) Licensee had a prior reservation at Licensor’s Licensed Space that terminated within the past six (6) months.
1. Service Charges. Practice Nomad will pass through the monthly License Fee from licensee to licensor less the Service Charge of 15%.