In the performance of its services rendered to Client hereunder, BA is and shall act as BA of Client, maintaining full responsibility and complete control over the activities of BA employees, agents, and servants, if any, and assuming responsibility for all expenses incurred in connection therewith, except for reasonable expenses pursuant to Article 5 hereof. BA is not and shall not act as an employee or servant of the Client, and BA consequently does not have, and shall not hold itself out as having, any right, power, or authority to create any contract or obligation, either express or implied, on behalf of, in the name of or which is binding upon Client other than as expressly set out at Section 3 above.
‘Subcontracting’ is defined as using resources not available at the home office location of BA in its US offices.
BA shall not assign its rights or delegate its performance hereunder without the prior written consent of Client, and any attempted assignment or delegation without such consent shall be null and void.
BA is well within its rights to assign or delegate its performance to its own locations located elsewhere in the United States or internationally.
We take security incredibly seriously but can’t guarantee that bad actors will not gain access to your personal information. You need to do your part by keeping your passwords safe, being smart about who has access to your account and which of your devices can access our services and the services of our 3rd party providers and letting us know if you think an unauthorized person is using your account.
We have implemented technical and organizational measures designed to secure your personal information from accidental destruction, loss, alteration and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your or your patient’s personal information for improper purposes. You provide information at your own risk.
You are solely responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or any other breach of security, as we will to you. You will immediately take all reasonable steps to mitigate the effects of a security breach and will cooperate with BA and provide all information requested by BA to remediate the breach. Any assistance provided by BA in relation to a security breach does not in any way operate as acceptance or acknowledgement that BA is in any way responsible or liable to you or any other party in connection with such breach.
Your Patients’, Employees’, and Vendors’ Personal Information: BA will process certain of your patients’, employees’, or vendors’ personal data on behalf of your business as a service provider (“data processor”). In such circumstances, you agree that you will comply with the data protection laws applicable to you and will provide data subjects with information on the processing of their personal information which satisfies the transparency requirements of such data protection laws and which ensures that personal data may be processed fairly, lawfully and in a transparent manner. And in accordance with HIPPA regulations we shall abide by the governing laws outlined by HIPAA as in Section 3 of this agreement.
If you do something using our services that gets us sued or fined, you agree to cover our losses as described below.
You will indemnify, defend, and hold us and our facilitators (and our respective employees, directors, agents, branches, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or in connection with any claim, action, audit, investigation, inquiry, or other proceeding instituted by any person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any third-party claims made by your patients regarding BA’ processing of your patient’s personal Information in connection with providing you with the Services; and (f) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code; and (g) any transaction, purchase, good or service in respect of which BA provides, or provided, you with payment processing services in accordance with the Terms.
Here’s the part where you promise that you are who you say you are, and that you will obey the law and our terms.
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are authorized and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including the Health Insurance Portability and Accountability Act (“HIPAA”); (e) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) your use of the Services will be in compliance with these Terms.
While we do our best to bring great services to our clients, we provide them as-is, without warranties. We are not responsible for any goods and services that you might buy or sell using BA’s services.
THE USE OF “BA” IN SECTIONS 17 AND 18 MEANS BA, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).
THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, BA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
BA DOES NOT WARRANT, REPRESENT OR GUARANTEE IN ANY WAY THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR FIT FOR ANY PARTICULAR PURPOSE.
BA does not warrant, endorse, guarantee, or assume responsibility, or liability for any product or service advertised or offered by a third party. BA does not have control of, or liability for, goods or services that are paid for using the Services.
As described below, if something bad happens because of your use of our services, our liability is capped.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BA BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. IN ALL CASES, BA WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
UNDER NO CIRCUMSTANCES WILL BABE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR BA ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF BA IS LIMITED TO ONE HUNDRED USD.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF BA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
If a third-party product or service is used you hold us harmless and voice your dispute with the third-party directly.
All third-party hardware, banking services, communication services, accounting services, subscribed to services on your behalf, and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. BA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
All third-party service purchased or subscribed under the BA Agreement are provided solely according to the warranty and other terms specified by the service provider or financial institution, who is solely responsible for servicing and supporting for its products and services. For service, support, or warranty assistance, you should contact the service provider directly. If outside council is required, you are responsible for the legal and/or accounting expense associated therewith. BA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS OR SERVICES, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
When you see the word “Dispute” in these terms, here’s what it means.
“Disputes” are defined as any claim, controversy, or dispute between you and BA, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), whether arising before or during the effective period of these Terms, and including any claim, controversy, or dispute based on any conduct of you or BA that occurred before the effective date of these Terms, including any claims relating in any way to this Agreement, or any other aspect of our relationship.
This section provides details about how we will resolve disputes through the arbitration process.
General. You and BA agree that any and all Disputes, except those that are resolved informally or brought in a small claims court, will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST BA. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).
Pre-Filing Requirement to Attempt to Resolve Disputes. Before an arbitration is commenced, you or BA agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a Dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a material breach of the Terms. To provide this opportunity, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to BA should be sent by mail to BA, Attn: Arbitration Provision, 1066 Pacifico Lane, El Dorado Hills, CA 95762. Any Notice sent to you will be sent to the address on file for your account. The Notice must: (i) include your name and account number; (ii) provide detailed information sufficient to evaluate the merits of the claiming party’s individualized claim and for the other party to determine if an amicable resolution is possible; and (iii) set forth the specific relief sought, including whatever amount of money is demanded and the means by which the demanding party calculated the claimed damages. Both parties agree that they will attempt to resolve a dispute through an informal negotiation within sixty (60) days from the date the Notice is sent. After that sixty (60) day period and not before, either party may commence arbitration. Each party agrees that state courts in the City and County of Sacramento, California, or federal court for the Northern District of California, referenced below, may enter injunctive relief to enforce the pre-filing requirements of this paragraph, including an injunction to stay an arbitration that has been commenced in violation of this paragraph.
Scope of Arbitration. If we are not able to resolve the Dispute by informal negotiation or, as provided below, in a small claims court, all Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the Commercial Arbitration Rules ( https://www.adr.org/sites/default/files/Commercial Rules.pdf ) for that forum, except you and BA will have the right to file early or summary dispositive motions and to request that the AAA’s Expedited Procedures apply regardless of the claim amount. Except as set forth above, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the General Terms and/or Additional Terms (or any) are enforceable, unconscionable, or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Small Claims Court. Subject to applicable jurisdictional requirements, either party may elect to pursue a Dispute in a local small-claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA, the other party may, in its sole discretion, inform the AAA that it chooses to have the Dispute heard in small claims court. At that time, the AAA will close the arbitration and the Dispute will be heard in the appropriate small claims court, with no fees due from the arbitration respondent.
Arbitration Procedures. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies. Any arbitration hearing will occur in Sacramento, California, at another mutually agreeable location or, if both parties agree, by telephone or video conference. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. BA values your privacy, particularly with respect to your financial transactions and data. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.
Arbitration Fees. In accordance with the AAA Rules, the party initiating the arbitration (either you or us) is responsible for paying the applicable filing fee. For purposes of this arbitration provision, references to you and BA also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services.
Our relationship is governed by the laws of California, federal law, or both.
These General Terms and any Dispute will be governed by the Federal Arbitration Act, as set forth above, and by California law and/or applicable federal law, without regard to its choice of law or conflicts of law principles.
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
You may not transfer any rights you have under our terms of service to anyone else.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void unless so approved in writing by BA.
No provision in this Agreement and any applicable Additional Terms are intended or shall create any rights with respect to the subject matter of these General Terms, and any applicable Additional Terms in any third party.
As a California business we have to abide by additional rules when dealing with patient or customer data.
If you are a “Business” as defined by the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq., (“CCPA”) then this provision 27 applies to you. For purposes of this Section 27, “process”, “sell”, and “business purpose(s)” have the meaning ascribed to them by the CCPA.
a) For purposes of this Section 16, “Buyer Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household that is processed by BA in connection with its Services to you. Buyer Personal Information does not include information BA receives about your customers (“Buyers”) for purposes of BA’s DIGITAL receipt, customer directory and email marketing tools (“BA Buyer Features”). It does include information that your Buyer has provided you through appointments, invoices, or to receive Loyalty-related or promotional text messages.
b) We may receive Personal Information from Buyers for the purpose of performing Services on your behalf as described in these General Terms. We agree that we will process Buyer Personal Information collected, processed, stored or transmitted by, or accessible to us in the course of these General Terms, and other Applicable Terms of Service referenced above, only on your behalf, and for the purpose of providing you with the Services in these Terms and other applicable terms linked above based on the products you use. We acknowledge that we are prohibited from: (i) selling the Buyer Personal Information; (ii) retaining, using, or disclosing the Buyer Personal Information for any purpose other than providing to you the Services specified in this Agreement(s), and other applicable terms of Service referenced above. As part of, and for purposes of, facilitating the Services, BAh3may (i) de-identify or aggregate the Buyer Personal Information; and (ii) process the Buyer Personal Information for operational purposes, including, without limitation, verifying or maintaining the quality and safety of the Services; improving, updating or enhancing the Services either for you or for our customers generally; detecting and preventing fraud, and for protecting the security and integrity of our Services; and complying with our legal obligations. You acknowledge and agree that Buyer Personal Information that you disclose to BAh3is provided to BA for the parties’ business purposes.
c) We reserve the right to delete Personal Information stored pursuant to this Agreement in the ordinary course of business, pursuant to our retention schedules.
These General Terms, and any applicable Additional Terms or Policies, are a complete statement of the agreement between you and BA regarding the Services. In the event of a conflict between these terms and any other BA agreement or Policy, these General Terms will prevail and control the subject matter of such conflict. If any provision of these General Terms or any Additional Term is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These General Terms do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these General Terms will be deemed a further or continuing waiver of such term or any other term.
This Agreement may be executed in counterparts, and each executed copy of this Agreement shall be considered an original, but such copies together shall constitute but one and the same instrument.
Each of the Articles, sections and subsections of this Agreement shall be interpreted separately, and the invalidity of anyone shall not affect the validity of this Agreement and the other terms and conditions contained herein.
It is mutually agreed that in the performance of all duties by each party under this Agreement, time is of the essence. However, performance of duties hereunder may be impeded by occurrences beyond the control of one or both parties. Events such as flood, earthquake, hurricane, tornado, blizzard, pandemic, and other natural disasters; fire, riot, war, or civil disturbance; strikes by common carriers; extended loss (more than 48 hours) of utilities (except for non-payment); and similar events shall excuse the affected party from performance of services impeded by such event(s). Nevertheless, each party has a duty to use reasonable efforts to prevent or mitigate such impediments. In the event that any catastrophe shall prevent the timely billing of CLIENT’s services by BA for more than fifteen (15) working days, CLIENT shall have the right to secure, without penalty, substitute services until BA can restore services, at which time BA responsibilities and rights under this Agreement shall be reinstated. For its protection, CLIENT is advised, at its own expense, purchase and maintain business interruption and/or accounts receivable insurance to cover any such catastrophic event, as stated above.