Terms and Conditions – retainerplan

Mobile Application and Website Terms of Use
Last Updated: April 23, 2019

1. Acceptance of these Terms of Use.
  1. By accessing or using any website (the “Website”) and/or mobile app (the “Mobile Application”; and individually and collectively with the Website, “Internet Application”) of RetainerPlan, LLC, a Florida limited liability company d/b/a RetainerPlan, or other systems maintained by us and/or our affiliates (collectively, “RetainerPlan,” “we” “us” or “our”), you (the “User,” “you” or “your”), whether you are (1) a consumer seeking to become a member (a “Member”) of the RetainerPlan Discount Membership Plan (the “Plan”) by signing up for one of the discount plans thereunder (each, a “Payment Plan”), (2) an individual employee or other representative (a “Provider Representative”) of a orthodontist/dentist (a “Orthodontist/Dentist”) that sells dental retainers (“Retainers”), (3) an independent referral source for RetainerPlan encouraging Orthodontist/Dentists to become Providers (defined below) under the Plan and/or consumers to become Members of the Plan (a “Referral Source”); or (4) an employee or representative of RetainerPlan or one or more of its affiliates (a “RP Representative”), confirm that you have read, understand, and agree to be bound by these terms of use (“Terms of Use”), regardless of whether you or any Orthodontist/Dentist or consumer referred by you becomes a Orthodontist/Dentist or a Member, respectively, under the Plan, or you are employed by or you represent or become a provider under the Plan (“Provider”). Each Internet Application and all associated pages and services that you can access on each Internet Application and all software therein are collectively referred to as the “System.” RetainerPlan does not guaranty the accuracy of any information transmitted on, through, or by its System, nor does RetainerPlan itself provide dental services. While RetainerPlan advertises and markets on each Internet Application, as well through the word of mouth of its independent Referral Sources, RetainerPlan is not responsible for any actions taken by a Member, Provider, Provider Representative or a Referral Source or any pricing decisions made by a Provider in pricing its products and/or services. You further understand that, to the extent permitted by applicable law, RetainerPlan may also use any information you or your Provider Representative provides about you through the System in any manner consistent with the terms below and RetainerPlan’s Privacy Policy.
  2. RetainerPlan requires that you read the entirety of these Terms of Use carefully. In addition, RetainerPlan directs particular attention to Section 10, which broadly authorizes RetainerPlan to use and share your information with third parties, in addition to the Providers, and Sections 15 – 17, which include binding provisions imposing a limitation on liability, and provisions providing for choice of law, venue, jurisdiction, and mandatory and binding alternative dispute resolution.
  3. In addition to these Terms of Use, you may enter into other agreements with us or others that will govern the Plan or your rights or benefits thereunder. If there is any contradiction between any term of these Terms of Use and the terms of another agreement you enter into applicable to specific aspects of the Plan or other services or benefits offered or made available through the Plan, the more stringent terms, as determined by us, shall take precedence.
  4. IF YOU ARE UNWILLING TO BE BOUND BY THESE TERMS OF USE, DO NOT ACCESS OR USE THE SYSTEM.
  5. PLEASE BE AWARE THAT SECTION 17 OF THESE TERMS OF USE CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT ANY WEBSITE PARTY (DEFINED BELOW) AND RETAINERPLAN HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE A WEBSITE PARTY TO SUBMIT CLAIMS THAT HE/SHE/IT HAS AGAINST RETAINERPLAN TO BINDING AND FINAL ARBITRATION. UNLESS A WEBSITE PARTY OPTS OUT OF THE ARBITRATION AGREEMENT IN SECTION 17: (1) SUCH WEBSITE PARTY WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST RETAINERPLAN ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) SUCH WEBSITE PARTY IS WAIVING HIS/HERS/ITS RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON HIS/HERS/ITS CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN SECTION 17 COULD AFFECT A WEBSITE PARTY’S RIGHT TO PARTICIPATE IN CLASS ACTION LITIGATION AGAINST RETAINERPLAN. PLEASE SEE SECTION 17 FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING THE ARBITRATION PROVISIONS’ IMPACT ON CLASS LITIGATION AND HOW TO OPT OUT OF ARBITRATION. THESE TERMS OF USE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
  6. In these Terms of Use, unless the context otherwise requires, (i) words of the masculine gender mean and include correlative words of the feminine and neuter genders, (ii) words importing the singular number mean and include the plural number and vice versa, (iii) words referring to “persons” means any natural person as well as any entity or organization, any government or any agency or political subdivision of any government, and (iv) one or more Users and RetainerPlan may collectively be referred to as “parties” and each as a “party.”
  7. You acknowledge that, while RetainerPlan allows its Members in good standing to receive a Discount on a replacement Retainer purchased through its Providers, the Providers, in their sole and absolute discretion, set the pricing for their Retainers, and RetainerPlan has no control over the prices charged by the Providers for their products and/or services.
2. Changes to these Terms of Use. By accessing our System, you acknowledge that we have the right to revise and amend these Terms of Use without prior notice. We will notify you of any changes to these Terms of Use through the System. Please refer back to these Terms of Use regularly. Your continued use of the System following our posting of any such changes to the Terms of Use will mean that you accept such changes.
3. Mobile Application. If you have elected to download our Mobile Application, we hereby grant you a limited, non-transferable, revocable license to use the object code of such software within the Mobile Application on any mobile device that you own or control on which (1) such Mobile Application is authorized to be operated (as determined by us in our sole discretion), and (2) the Mobile Application is permitted to be downloaded under this Section 3. The Mobile Application is licensed, not sold, to you for use only under the terms of these Terms of Use. RetainerPlan reserves all rights, title, and interest not expressly granted to you. Nothing herein allows you to use the Mobile Application on a device that you do not own or control. Furthermore, with respect to any Mobile Application accessed through or downloaded from an App Store (such as the Google Play store or Apple’s App Store (an “App Store Sourced Application”)), you will only use the App Store Sourced Application: (1) on a product that runs the operating system intended for use on such App Store Sourced Application, and (2) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the Mobile Application from a third party App Store is also subject to the provisions of Section 12 (Third Party Links & App Store).
4. The RetainerPlan System is for Use by Individuals 13 years of age and older.
  1. Our Internet Application is not intended for children under 13 years of age (“young children” or a “young child”). Young children are not permitted to provide any personal information to or on the Internet Application. We do not knowingly collect personal information from young children. If you are a young child, do not use or provide any information on any Internet Application or through any of its features, register on any Internet Application, make any purchases through any Internet Application, use any of the interactive or public comment features of any Internet Application, or provide any information about yourself to us, including your name, address, telephone number, email address, or any screen name or user name you may use. If we learn we have collected or received personal information from a young child without verification of parental consent, we will delete that information. If you believe we might have any information about a young child that we received from that young child, please let us know by contacting us.
  2. Young children may still become Referral Sources. However, young children must have a parent or legal guardian register them as a Referral Source. However, RetainPlan’s agreement will be with the young child’s parent or legal guardian. If a young child’s parent or legal guardian has registered him/her as a Referral Source, we will communicate only with that parent or legal guardian concerning that young child’s activities as a Referral Source. Any check or other compensation earned by a young child as a Referral Source will be delivered to such young child’s parent or legal guardian. We are not responsible for assuring such young child receives such check or other compensation. If a young child wishes to communicate with us, he/she must do so through his/her parent or legal guardian.
  3. Notwithstanding anything to the contrary in these Terms of Use, (a) the information we request about a young child for that young child’s parent or legal guardian to register him/her as a Referral Source will be as limited as legally permitted, and (b) we will not use for any reason any personal information about young children provided by a parent or legal guardians except to the extent we are legally obligated to do so (e.g. criminal or civil investigations).
5. System Use Restrictions. Without our prior written consent, you may not:
  1. Use any automated means to access the System or collect any information from the System (including, without limitation, robots, spiders, scripts, or other automatic devices or programs);
  2. Frame the System in any manner, utilize framing techniques to enclose any content or other proprietary information, place pop-up windows over any System pages, or otherwise affect the display of any pages on the System;
  3. Engage in the practices of “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining content or other information;
  4. Use the System in any manner that violates applicable law or that could alter, damage, disable, overburden, or impair the System or interfere with any other party’s use and enjoyment of the System;
  5. Access, use, or monitor our System for benchmarking or any direct competitive purposes;
  6. Copy, modify, or create derivative works or improvements of the System;
  7. Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any portion of the System to any person, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
  8. Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the System, in whole or in part;
  9. Bypass or breach any security device or protection used by the System or allow access or use of the System by anyone other than by you using your own then valid access credentials;
  10. Input, upload, transmit, or otherwise provide to or through the System, any information or materials that are unlawful or injurious, or contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (i) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (I) computer, software, firmware, hardware, system, or network; or (II) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (ii) prevent anyone from accessing or using the System as intended;
  11. Damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the System, in whole or in part;
  12. Remove, delete, alter, or obscure any trademarks, specifications, documentation, terms of use, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any portion of the System, including any copy thereof;
  13. Access or use the RetainerPlan in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other rights of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any Member, Provider, Provider Representative, Referral Source or RP Representative), or that violates any applicable law;
  14. Access or use the System for purposes of competitive analysis of same, the development, provision, or use of a competing software services, systems or products or any other purpose that is to RetainerPlan’s detriment or commercial disadvantage; or
  15. Otherwise access or use the System beyond the scope of the authorization granted under these Terms of Use.

We may terminate or disable your access to the System for any reason, with or without cause, including if we believe that you have violated or acted inconsistently with these Terms of Use.

User Representations. Parts of the System may be accessed only by registering for an Account (defined below) and creating a password. Keep your password secure. You are responsible for the activities on your Account. RetainerPlan is not responsible for the information, activities, or data associated with your Account. You represent, warrant, and agree that no materials of any kind submitted through your Account or otherwise posted or shared by you through the System will violate or infringe upon the rights of any third party, including, without limitation, any copyright, trademark, patent, privacy, publicity, or other personal or intellectual property rights; or contain libelous, defamatory, or otherwise unlawful material. You will notify us promptly if you discover any unauthorized use of your Account. We are not responsible for any losses resulting from unauthorized use of your Account. In addition, you agree not to use the System to:
1. Except where authorized by us, register for more than one User account, or register or operate a User account on behalf of or for the benefit of any person who is not eligible to register for or operate a User account in their own name;
2. Impersonate any person, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with or authority to act on behalf of any person;
3. Upload, post, transmit, share, store, or otherwise make publicly available through the System any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, and credit card numbers, unless expressly authorized to do so by that third party;
4. Upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the System;
5. Use or attempt to use another’s account or information, including personally protected information, without express authorization from that other person, or create a false identity through the System; or
6. Make any false or misleading statements or provide any false of misleading information through the System.
Information Posted through the System.
1. As between us and you, all content made available on or through the System, whether uploaded, published, or displayed by us, any User or any third party, including designs, text, graphics, pictures, video, information, software, music, sound and other files, and their selection and arrangement, except as provided in Section 12 (Third Party Links & App Store), is the property of RetainerPlan (collectively the “RetainerPlan Content”). To the best of our knowledge, we use only content that we own or have permission to use. No RetainerPlan Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the owner’s prior written permission. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise.
2. You are solely responsible for the information that you post or, in the case of a Provider, a Provider Representative posts about you on or through the System and your conduct regarding the System. By posting information, or permitting information about you to be posted, to or through the System, you agree to (i) provide, or cause to be provided, accurate, current, and complete information; (ii) maintain the security of your password and identification, to the extent you are provided a password and identification; (iii) promptly notify us of any changes to information or circumstances that could affect your eligibility to continue using the System; and (iv) be fully responsible for all use of your account and for any actions that take place using your Account.
Consent to Electronic Records and Communication. As part of your relationship with us, you have the right to receive certain information “in writing” – which means you are entitled to receive such information on paper. The federal ESIGN Act and certain state laws allow us to provide this information to you electronically, instead, with your prior consent. To better serve you, we need your consent to use Electronic Records (defined below) in our relationship with you generally. This document informs each User of his/her/its rights when receiving Electronic Records from us in connection with any account he/she/it has with us (an “Account”) related to access and/or use of any Internet Application and/or the payment and/or receipt of money and other consideration. Each User must read and consent to the terms outlined below.
1. Definitions. For purposes of this Consent to Electronic Records and Communication, the following terms have the following meaning: “We,” “us,” and “our” refer to RetainerPlan and our current and future affiliates, agents, and assigns and any other person who provides services related to your Account or through the Plan. “You” and “your” means the each Account holder, and his/hers/its authorized users and account contacts. “Electronic Records” are any legally-required disclosures, agreements, Account information, notices, statements, and other information provided to you electronically. Electronic Records may include, but are not limited to, applicable disclosures pursuant to ESIGN Act Disclosure and Consent; the Gramm-Leach-Bliley Act and Regulation P; and any other federal, state or local law, or regulation applicable to your Account.
2. Your Consent to Use Electronic Records and Signatures. By agreeing to this Consent to Electronic Records and Communication, you acknowledge receipt of this document, and consent to the use of Electronic Records and electronic signatures in connection with your Account (collectively, “Your Consent”). Your Consent is effective until you withdraw Your Consent. We may always, in our sole discretion, provide you with a document in writing, even when you have chosen to receive it electronically.
3. Requesting Paper Copies. You may request paper copies of Electronic Records at no cost by contacting us.
4. Hardware and Software Requirements. Before you decide to do business electronically with us, you should consider whether you have the required hardware and software capabilities described below. To access and retain Electronic Records electronically, you will need to use the computer software and hardware identified below. “Current Version” means a version of the software or hardware that is currently being supported by its publisher. You will need the following:
  1. Internet access;
  2. Current Version of a PDF reader (such as Adobe® Acrobat);
  3. Current Version of an Internet browser (such as Internet Explorer, Firefox, Chrome, Safari);
  4. A means to retain documents by printing or storing electronically;
  5. A valid email address, and
  6. A personal computer, mobile device, or other device capable of supporting the requirements listed above.
  If these requirements change in a way that creates a material risk that, in RetainerPlan’s sole discretion, you would not be able to receive or retain your Electronic Records, we will notify you via a change in these Terms of Use. Continuing to use electronic Account services after receiving notice of the change is reaffirmation of Your Consent.
5. Withdrawing Consent. You have the right to withdraw Your Consent at any time and at no cost to you. If you withdraw Your Consent, this will prevent you from receiving various electronic information from us. If at any time you wish to withdraw Your Consent, contact us. If you withdraw Your Consent, the legal enforceability of any prior Electronic Record will not change.
6. Consent to Contact You by Various Methods. You provide Your Consent and agree that we may contact you for any lawful reason, including, but not limited to, in connection with your Account, including for the collection of any amounts owed to us, and to market goods and services of various Providers, us, or any unaffiliated third-parties. We may contact you at such addresses or numbers (including wireless cellular telephone numbers and ported landline numbers) as you may provide to us from time to time. We may use any means of communication, including, but not limited to, postal mail, telephone, electronic mail, text messaging, voice messages, or other technology, to reach you. You agree that we may use automated dialing and announcing devices that may play recorded messages. We may also send text messages to your telephone. You are not required to provide your mobile telephone number as a condition of becoming a Member, and you may withdraw your consent to use automated dialing systems and pre-recorded messages in connection with your mobile telephone number at any time by contacting us. By providing Your Consent, you:
  1. Acknowledge that you have the technical ability to access the Electronic Records in the designated formats described above;
  2. Acknowledge that you have read the information about Electronic Records and Communication;
  3. Consent to having legally-required disclosures, agreements, Account information, notices, statements, and other information provided or made available to you in electronic form and doing business with us electronically;
  4. Acknowledge that you may request a paper copy of an Electronic Record at no charge to you; and
  5. Indicate your intent to utilize electronic signatures to process transactions on your Account.
Consent to be Contacted. To the extent required by applicable law, we endeavor to make the proper disclosures and obtain consumer consent when collecting your contact information.
Third Party Services. RetainerPlan may offer products and/or services to you that are provided by third parties. You consent to RetainerPlan providing your contact information to these third party providers for any and all purposes RetainerPlan, in its sole discretion, deems appropriate.
Intellectual Property.
1. Trademarks. RetainerPlan, its names and all associated graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks, or trade dress in the United States. RetainerPlan’s trademarks and trade dress may not be used, including as part of trademarks or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of RetainerPlan in each instance.
2. Submissions. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information (“Submissions”) provided by you to us through the RetainerPlan System are non-confidential and shall become the sole property of RetainerPlan. RetainerPlan shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
3. Copyright Complaints. If you believe that any material on the System infringes upon any copyright that you own or control, you may contact us about such infringement. To meet the notice requirements under the Digital Millennium Copyright Act, the notification must be a written communication and include the following information:
  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works;
  3. 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 us to locate the material;
  4. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
  5. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner; and
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Third-Party Links & App Store.
1. Third-Party Links & Ads. The System may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the System contains links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. RetainerPlan does not review, approve, endorse, or make any promises with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms of Use.
2. App Store.
  1. When you download our Mobile Application, you may do so through a third party’s online application store (“App Store”). You acknowledge that these Terms of Use are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the RetainerPlan System, including the Mobile Application, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). In order to use the Mobile Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the System, including the Mobile Application.
  2. Your use of any App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms. You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to any App Store Sourced Application. In the event of any failure of any App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between RetainerPlan and the App Store Owner, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure of an App Store Sourced Application to conform to any warranty (if any) will be the sole responsibility of RetainerPlan.
  3. You and we acknowledge that, as between RetainerPlan and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to any App Store Sourced Application or your possession and use of any App Store Sourced Application, including, but not limited to: (1) product liability claims; (2) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
  4. You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of the App Store Sourced Application infringes that third party’s intellectual property rights, as between RetainerPlan and the App Store Owner, RetainerPlan, not the App Store Owner, 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 Use.
  5. You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s affiliates, are third-party beneficiaries of these Terms of Use as related to your license of an App Store Sourced Application, and that, upon your acceptance of these Terms of Use, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of these Terms of Use as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
  6. ou represent and warrant that (1) you are 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; (2) you are not listed on any U.S. Government list of prohibited or restricted parties; and (3) you are not a resident of the European Union, nor do you otherwise qualify for protection under the General Data Protection Regulation, commonly referred to as GDPR.
  7. Without limiting any other terms in these Terms of Use, you must comply with all applicable third-party terms of agreement when using any App Store Sourced Application.
Disclaimers.
1. We reserve the right to change any and all content within the System at any time without notice. We provide the System “AS IS” and assume no responsibility for any failure to provide the System to you. The System may be temporarily unavailable from time to time for maintenance or other reasons. We may discontinue the System or any goods or services available through the System at any time and for any reason. We are not responsible for any problems or technical malfunction of any telephone or cable network or lines, servers or providers, computer equipment, software, failure of email, or technical problems or traffic congestion on the Internet or on or through the System, including injury or damage to the Users’ or to any other person’s devices related to or resulting from use of the System. Under no circumstances will we be responsible for any loss or damage, including any loss or damage to any User data, financial damages, lost profits, loss of business, or personal injury or death, resulting from anyone’s use of the System.
2. YOU AGREE THAT YOUR USE OF THE SYSTEM IS AT YOUR OWN RISK, AND, WITH RESPECT TO THE SYSTEM, WE EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND SATISFACTORY QUALITY.
3. RetainerPlan makes no representation or warranty with respect to any Provider, his/hers/its abilities or licensing as a Orthodontist/Dentist or the qualities of any Providers work. You are responsible for investigating each Provider’s qualifications.
4. The Plan is a discount membership plan under which Providers have contractually agreed to offer the Discount to Members purchasing Retainers. The Plan is not insurance.
Limitation of Certain Damage Types. EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED OR PROHIBITED, IN NO EVENT WILL RETAINERPLAN OR ANY OF ITS OWNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR MEMBERSHIP IN THE PLAN, YOU ACTIVITIES AS A MEMBER OF OR REFERRAL SOURCE FOR RETAINERPLAN, YOUR USE OF ANY PROVIDER OR THE SYSTEM OR ANY OF THE CONTENT OR OTHER MATERIALS ON OR ACCESSED THROUGH THE SYSTEM, EVEN IF WE OR YOU ARE AWARE OF OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Liability Amount. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO US FOR THE PLAN, SERVICE OR PRODUCT AT ISSUE IN THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND $100. YOU ACKNOWLEDGE THAT IF YOU PAY NO FEES TO US FOR THE APPLICABLE PLAN, SERVICE OR PRODUCT WITHIN THE APPLICABLE TIME FRAME, YOU SHALL BE LIMITED TO MONEY DAMAGES OR $100, AT MOST, OR INJUNCTIVE RELIEF, UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, AND SHALL NOT BE ENTITLED TO ANY OTHER DAMAGES, REGARDLESS OF THE CAUSE OF ACTION. NOTHING IN THESE TERMS OF USE SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR: (i) DEATH OR PERSONAL INJURY RESULTING FROM OUR WILLFUL MISCONDUCT; (ii) FRAUD OR FRAUDULENT MISREPRESENTATIONS; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
Governing Law, Waivers, and Jury Trial Waiver.
1. Governing Law. These Terms of Use shall be governed by and construed in accordance with Florida law. To the extent any party is permitted under these Terms of Use to initiate litigation in a court, jurisdiction and venue for any such proceeding arising out of or relating to these Terms of Use, any parties use of the System or the Plan, or any parties activity as a Provider, a Member or a Referral Source or any other activity in connection with any of the foregoing (collectively, the “Plan Activity”), shall be in Palm Beach County, Florida. All actions arising from Plan Activity must be brought exclusively in either (1) the permissible arbitration organizations listed in Section 17, or (2) where exempted from arbitration by these Terms of Use, the courts of the State of Florida located in Palm Beach County. Each party irrevocably and unconditionally agrees that he, she or it will not commence any action, litigation, or proceeding of any kind that in any way arises from or relates to the Plan Activity in any forum other than those designated in this Section 16. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the State of Florida located in Palm Beach County. Each party agrees that a final judgment in any such arbitration, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
2. Waivers. Our failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of that right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, then the parties nevertheless agree that the court should endeavor to give effect to the intentions reflected in the provision, and the other provisions of these Terms of Use shall remain in full force and effect. The language of these Terms of Use shall be construed as to its fair meaning and not strictly for or against any party.
3. Waiver of Jury Trial. YOU AND RETAINERPLAN EACH KNOWINGLY AND VOLUNTARILY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JURY TRIAL.
Arbitration Agreement & Dispute Resolution. Please read this Section 17 carefully. It is part of each contract a Member or Referral Source (each, a “Website Party”) has with RetainerPlan and affects each Website Party’s rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
1. Scope of Arbitration Agreement (“Arbitration Agreement”). Each Website Party acknowledges and agrees that any dispute or claim relating in any way to his/her access to or use of the System or to any other aspects of his/her relationship with RetainerPlan will be resolved by binding arbitration, rather than in court, except that (1) each Website Party may assert claims in small claims court if such claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) RetainerPlan may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
2. Class Action Waiver. This Arbitration Agreement shall apply, without limitation, to all claims that arose before this agreement with RetainerPlan. NOW OR IN THE FUTURE, THERE MAY BE LAWSUITS AGAINST RETAINERPLAN ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS. SUCH CLAIMS, IF SUCCESSFUL, COULD RESULT IN SOME MONETARY RECOVERY TO A WEBSITE PARTY. THE EXISTENCE OF SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS DOES NOT MEAN THAT SUCH LAWSUITS WILL ULTIMATELY SUCCEED. BUT IF A WEBSITE PARTY AGREES TO ARBITRATION WITH RETAINERPLAN, SUCH WEBSITE PARTY IS AGREEING IN ADVANCE THAT HE/SHE/IT WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF UNDER SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUITS. INSTEAD, BY AGREEING TO ARBITRATION, EACH WEBSITE PARTY MAY BRING HIS/HERS/ITS CLAIMS AGAINST RETAINERPLAN IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, A WEBSITE PARTY COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
3. Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, each Website Party must contact us requesting arbitration and describing such Website Party’s claim. The arbitration will be conducted by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) under its rules, including JAMS’ Consumer Arbitration Minimum Standards. The JAMS’ rules are available at www.jamsadr.com or by calling JAMS at 1-800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’ rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, RetainerPlan will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.
4. Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of each Website Party and RetainerPlan. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms of Use. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding on each applicable Website Party and RetainerPlan.
5. Jury Trial Waiver. By agreeing to arbitrate their disputes as set forth in the Arbitration Agreement, each applicable Website Party and RetainerPlan are electing to have claims and disputes resolved by arbitration and not pursuant to a trial in front of a judge or jury. An arbitrator (i) can award, on an individual basis, the same damages and relief as a court, and (ii) must follow these Terms of Use as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is limited. In any litigation between a Website Party and RetainerPlan over whether to vacate or enforce an arbitration award, such Website Party and RetainerPlan waive all rights to a jury trial, and elect instead to have a judge resolve the dispute.
6. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE WEBSITE PARTY CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER WEBSITE PARTY OR ANY OTHER PERSON. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither any Website Party nor RetainerPlan is entitled to arbitration. Instead, all claims and disputes will then be resolved in a court as set forth in Section 16 (Disputes, Governing Law, Venue, and Jurisdiction) above.
7. Opt Out. Website Parties may opt out of this Arbitration Agreement. If a Website Party does so, neither such Website Party nor RetainerPlan can force the other to arbitrate. To opt out, a Website Party must notify RetainerPlan via email no later than 30 days after first becoming subject to this Arbitration Agreement by agreeing to be bound by these Terms of Use or an earlier version thereof. A Website Party’s notice must include such Website Party’s name and address, and such Website Party’s RetainerPlan username (if any), the email address such Website Party used to set up such Website Party’s Account (if such Website Party has one), and an unequivocal statement that such Website Party wants to opt out of this Arbitration Agreement. A Website Party must send such Website Party’s opt-out notice by contacting us. If a Website Party opts out of this Arbitration Agreement, all other parts of these Terms of Use will continue to apply to such Website Party. Opting out of this Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that any Website Party may have with us.
8. Exclusions. This Section 17 does not apply to Providers, Provider Representatives or RP Representatives.
Indemnity. To the maximum extent permitted by law, you agree to indemnify and hold us, our direct and indirect parent entities and subsidiaries, each of our and their respective affiliates, and each of the foregoing’s respective directors, officers, agents, contractors, partners, and employees, harmless from and against any loss, liability, claim, demand, damages, costs (including attorneys’ fees), and expenses we incur, arising out of or in any way connected with your use of the System, any violation by you or any of your directors, officers, agents, contractors, partners or employees of these Terms of Use or any other actions of you or your directors, officers, agents, contractors, partners or employees.
Survival. The following Sections survive the termination of these Terms of Use, including any other provisions hereof that survive in accordance with their terms: Sections 4, and 9 through 27.
Remedies Cumulative. Each and all of the rights and remedies given to RetainerPlan by these Terms of Use or by law or equity are cumulative, and the exercise of any such right or remedy by RetainerPlan shall not impair RetainerPlan’s right to exercise any other right or remedy available to it under these Terms of Use or under law or equity.
Provisions That Apply to Members, Referral Sources, Provider Representatives and RP Representatives. As used in this Section 21, a “Business Source” means any Member, Referral Source, Provider Representative or RP Representative, as applicable.
1. Confidentiality. Except for disclosures that are (i) required to be made under law or in connection with any dispute between or among any Business Sources, RetainerPlan and/or any Provider, or (ii) between or amongst any Referral Source, Member, Provider Representative and/or his/hers/its Provider in connection with referring, providing or receiving benefits under the Plan, no Business Source (as such, “Recipient”) will disclose or use, and will direct its representatives not to disclose or use, any Confidential Information (as defined below) of RetainerPlan (“Disclosing Party”) for any reason, and Recipient agrees to protect Disclosing Party’s Confidential Information by using the same degree of care it uses to protect its own confidential information. As used herein, “Confidential Information” means Disclosing Party’s information (I) that is not generally known or ascertainable (that is, secret), (II) from which Disclosing Party derives economic value or business advantage by keeping the information secret, and (III) for which Disclosing Party takes reasonable efforts to preserve its secrecy including, without limitation, the terms of these Terms of Use, any list of Providers, Members and/or Referral Sources, which are all Disclosing Party’s Confidential Information. Upon Disclosing Party’s written request, Recipient will promptly return to Disclosing Party or destroy (and certify in writing to Disclosing Party that it has done so) Disclosing Party’s Confidential Information in its possession. This provision does not amend or limit any other confidentiality or non-disclosure agreement to which Recipient may already be a party with RetainerPlan.
2. Independent Contractor. The relationship between or amongst RetainerPlan and each Business Source (other than any RP Representative) is solely as set forth in these Terms of Use. No Business Source (other than an RP Representative) shall be deemed the employee, agent, partner or joint venturer of RetainerPlan. No Business Source shall have, or represent to have, any authority or capacity to make or alter any agreement on behalf of RetainerPlan, to legally bind RetainerPlan, to credit or receive money due on behalf of RetainerPlan or to do any other thing on behalf of RetainerPlan. RetainerPlan will not have or attempt to exercise any control or direction over the methods used by any Business Source (other than its employees) to perform its work, duties and obligations except as set specifically set forth herein. RetainerPlan is not responsible for any tax collection, payment and/or reporting obligations with respect to any Business Source (other than its employees).
3. Compliance. Each Business Source, at its sole expense, shall comply with all applicable laws, rules and regulations, pay all taxes applicable to it, and obtain all required licenses, permits and approvals to provide its products and/or services related to the Plan, whether as part of the Plan or pursuant any agreement with a Member.
4. Release. Each Member, on behalf of itself and any of its family members (whether by birth, marriage, adoption or otherwise) and persons over which he/she/it serves as a guardian or has parental rights (collectively, the “Releasing Parties”) hereby remises, releases, acquits, satisfies, and forever discharges RetainerPlan, its affiliates and their members, managers, officers, directors, employee and contractors (collectively, the “Released Parties”) of and from any and all, and all manner of action and actions, cause and causes of action, suits, debts, controversies, damages, judgments, claims and demands whatsoever, in law or in equity and whether such arise out of the strict liability, negligence or any other actions of any of the Released Parties, which any of the Releasing Parties ever had, now has, or may have in the future have, arising out of or relating to any treatment provided by a Provider to any of the Releasing Parties.
Payment Provision Applying to Members. When electing to join the Plan as a Member, each Member selected one of the Payment Plans setting forth the term (the “Term”), the number of payments, the payment intervals, the amount of each payment, the number of beneficiaries and the Discount provided under such Payment Plan. Each Member shall, during the Term of its Payment Plan, make each payment when due under its Payment Plan. Interest shall accrue on amounts not paid when due under the Payment Plan at the lesser of 1% per month or the highest rate of interest permitted under applicable law. Each Member shall pay all of RetainerPlan’s reasonable expenses actually incurred to enforce or collect such Member’s obligations owed under its Payment Plan including reasonable collection, arbitration, paralegals’, attorneys’ and experts’ fees and expenses, whether incurred without the commencement of a suit, in any trial, arbitration, or administrative proceeding, or in any appellate or bankruptcy proceeding. RetainerPlan may in its sole discretion change its Payment Plans at any time; however those changes shall not affect the terms of any Payment Plan selected by a Member prior to such change so long as that Member has not defaulted upon any of its obligations under that Payment Plan and such default has not been cured within ten (10) days after such Member has received notice thereof.
Referral Fees Applying to Referral Sources. When electing to register under the Plan as an Affiliate, each Referral Source was provided with RetainerPlan’s then-current schedule of referral fees (the “Referral Fee Schedule”) that RetainerPlan then pays upon the referral of Orthodontist/Dentists that become Providers under the Plan, or consumers that become Members of the Plan, and, in either case, such persons taking such further actions, if any, as may be required by RetainerPlan for the referral of such Orthodontist/Dentist or consumer to qualify for the payment of a referral fee (each, a “Referral Fee”) to any Referral Source given credit for such referral. RetainerPlan shall pay the Referral Fees earned in each month by each Referral Source to that Referral Source within thirty (30) days following the end of such month. RetainerPlan may in its absolute discretion change its Referral Fee Schedule at any time by providing Referral Sources at least ten (10) days prior notice thereof. However, that change shall not affect the Referral Fee payable to a Referral Source for a qualifying referral that occurred prior to such change.
Notices. Except as otherwise expressly set forth in these Terms of Use, any notice, request, consent, claim, demand, waiver or other communication under these Terms of Use will have legal effect only if in writing and addressed to a party as follows, to by contacting us and to you at any contact address or number provided by you. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile (with confirmation of transmission), email or text, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
Headings. The headings of these Terms of Use are for reference only and do not affect the interpretation of this Agreement.
Entire Agreement. This Agreement, as it may be amended as set forth herein, together with any other written agreement RetainerPlan may have with you, constitute the sole and entire agreement of RetainerPlan and you with respect to the subject matter contained herein and therein and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
Attorneys’ Fees. In the event that any suit, action, or other proceeding is instituted or commenced by any party against any other party or parties arising out of or related to these Terms of Use, the prevailing party shall be entitled to recover, upon demand, its reasonable attorneys’ fees (including attorney, paralegal, expert witness and other professional fees and whether incurred before or during such, suit action or proceeding, on appeal and in bankruptcy) and related court costs incurred in any suit, action or proceedings, from the non-prevailing party.

PLEASE PRINT A COPY OF THESE TERMS OF USE FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THESE TERMS OF USE.