ProperForm Provider Terms of Use

These Provider Terms of Service (“Terms”) are an agreement between ProperForm, Inc. ("ProperForm") and the provider agreeing to these Terms ("Provider") governing Provider’s access or use of the services ProperForm provides to Provider (the “Services”).

1. Definitions

The following terms have the meanings below as used in these Terms:

"Affiliate" means an entity that, directly or indirectly, controls, is controlled by, or is under common control with the subject entity, with "control" meaning the direct or indirect control of a majority of the voting power of the subject entity or the power to direct the management of that entity.

"BAA" means the Business Associate Agreement available at https://properform.fit/legal/business-associate-agreement or as otherwise agreed to by the parties.

"Client" means a client of Provider to whom Provider renders its professional services in connection with Provider’s use of the Services.

"Documentation" means any usage guides, product or feature specifications, technical documentation, or similar documentation that ProperForm makes available in connection with or through the Services.

"DPA" means the Data Processing Addendum available at https://properform.fit/legal/dpa or as otherwise agreed to by the parties, as may be updated from time to time in accordance with these Terms.

"Team Members" means Provider's employees, contractors, or other authorized representatives to whom Provider grants access to the Services in accordance with these Terms. Team Members do not include Clients.

"Fees" means all payments (including applicable taxes) payable for the Services purchased by Provider.

"Intellectual Property Rights" means all copyright, trademark, trade secret, patent, publicity, or other similar rights (whether or not registered or issued) under the laws of any jurisdiction.

"Order" means any ordering document, online order form, or checkout flow through which Provider purchases or activates the Services. Each Order is incorporated into and governed by these Terms, unless otherwise agreed to by ProperForm and Provider.

"Protected Health Information" or "PHI" has the meaning set forth in 45 C.F.R. § 160.103.

"Provider Data" means all data, information, content, and/or materials that Provider or its Team Members or Clients input or provide through the Services, but excluding Usage Data.

"Subscription Term" means each individual period for which Provider subscribes to the Services via an Order.

"Usage Data" means any data or information derived from use or operation of the Services that ProperForm collects or processes in an aggregated and anonymized format such that Provider, its Team Members, and its Clients are not identifiable.

2. Incorporated Agreements

2.1. BAA.

To the extent Provider is a "Covered Entity" or a business associate of a covered entity and ProperForm acts as a "Business Associate" (as those terms are defined by the Health Insurance Portability and Accountability Act ("HIPAA")) in connection with Provider's use of the Services, the BAA applies and is incorporated into these Terms by reference.

2.2. DPA.

ProperForm will process any Provider Data that is personal data (as defined by the DPA) in accordance with the DPA, which is incorporated into these Terms by reference.

3. Access to Services

3.1. Access and Use.

ProperForm grants Provider and its Team Members a limited, non-exclusive, non-sublicensable, non-transferable right to access and use the Services solely for Provider's internal business purposes and solely in accordance with these Terms and the terms of the Order. Each Team Member must be assigned their own individual account license to the Services; multiple Team Members may not share, or access the Services through, a single account or license. Team Member Licenses may only be re-assigned to a new Team Member when replacing one who will no longer use the Services.

3.2. Service Updates.

ProperForm may periodically update and/or modify the features and/or functionality of the Services, provided that any update or modification will not materially diminish the features or functionality of the Services during the applicable Subscription Term.

4. Subscriptions and Billing

4.1. Plans.

ProperForm may offer different subscription plans for the Services (each, a "Plan"). Subscriptions start on the date Provider completes its Order and will continue on a monthly or annual basis (depending on the Plan) in accordance with the Order. Unless otherwise specified in the Order, at the end of each Subscription Term, Provider’s subscription to the Services will automatically renew for successive periods equal to Provider’s then-current Subscription Term, unless Provider cancels its subscription in accordance with these Terms.

4.2. Billing.

Fees are due at the start of each Subscription Term. ProperForm will charge the Fees then-due to the payment method specified in the Order, or as subsequently updated by Provider in Provider's account within the Services. Provider is solely responsible for maintaining a valid and current payment method within its account within the Services.

4.3. Additional Purchases.

Provider may purchase additional Services or Team Member licenses during the Subscription Term. The Subscription Term for any additional purchases will continue coterminous with the then-current Subscription Term and Fees will be prorated based on the portion of the Subscription Term remaining at the time of purchase.

4.4. Taxes.

Fees are exclusive of taxes, levies, duties, or similar governmental assessments or charges imposed on Provider’s purchase of the Service, all of which are the sole responsibility of Provider and will be charged to Provider if ProperForm is required by applicable law or regulation to collect or pay them. Provider's foregoing payment responsibility excludes any taxes, levies, duties, or similar governmental assessments based on ProperForm's revenue, income, number of employees, or corporate existence.

5. Cancellation

5.1. Cancellation by Provider.

Provider may cancel its subscription to the Services using the cancellation feature available within the Services. Cancellations by Provider will be effective at the end of Provider's then-current Subscription Term.

PROVIDER MUST CANCEL ITS SUBSCRIPTION PRIOR TO PROVIDER'S NEXT SUBSCRIPTION TERM TO AVOID BEING CHARGED THE FEES FOR THAT NEXT SUBSCRIPTION TERM.

5.2. Cancellation by ProperForm.

ProperForm reserves the right not to renew Provider's subscription at the end of any Subscription Term upon at least 30 days' prior written notice to Provider. Any non-renewal by ProperForm will be effective at the end of the Subscription Term in which the 30-day notice period expires.

5.3. Effect of Cancellation.

Provider will not receive any refund or credit for the time period between the date of processing the cancellation and the cancellation effective date, but Provider will continue to have access to the Services during that period.

6. Provider Responsibilities

6.1. Compliance.

Provider will: (a) use the Services only for lawful purposes and in accordance with all laws applicable to Provider's use of the Services, including HIPAA and all applicable state health privacy laws; and (b) obtain all consents from Provider's Clients as may be required by law in connection with Provider's use of the Services. Without limiting the foregoing, Provider is solely responsible for: (i) determining whether Provider's use of the Services in connection with Client PHI requires the Client’s written authorization under HIPAA; and (ii) obtaining any required Client authorizations before inputting or processing a Client's PHI through the Services.

6.2. Client Consent.

Provider acknowledges and agrees that Provider is solely responsible for determining and complying with all applicable laws related to obtaining Client consent for Provider's use of the Services in treating Clients, including, but not limited to: (a) any required all-party or two-party consents applicable to Provider’s recording of Clients; and (b) any required Client consents applicable to Provider's use of AI-based features of the Services.

6.3. Account Security.

Provider is solely responsible for maintaining the confidentiality of its login credentials that Provider designates during account creation.

6.4. Record Retention.

Provider is solely responsible for determining whether any videos, recordings, transcriptions, or related content constitute part of a patient's medical record and for establishing retention periods in compliance with applicable laws, professional regulations, and payer requirements.

6.5. Acceptable Use Policy.

Provider and its Team Members will not, or allow any third party to, do any of the following in connection with Provider's use of Services:

use the Services in violation of applicable law; take, or attempt to take, any action to damage, disable, or interfere with the operation or security of the Services, or circumvent any security controls, access controls, or use limits of the Services; or introduce, transmit, or upload any denial-of-service attack, software virus, unsolicited communication, or other harmful computer code, file, or program (including Trojan horses, worms, time bombs, cancelbots, malware, or spyware); input or process any Provider Data in violation of HIPAA, for which Provider does not have the required rights and consents to input or process, or that infringes on or violates the rights of ProperForm or any third party, including any Intellectual Property Rights; remove or alter any notices, attribution, or labels of Intellectual Property Rights in the Services or Documentation; copy, distribute, resell, publicly display, modify, reverse engineer, or create derivative works of any part of the Services; use the Services for competitive analysis or benchmarking, or to develop, train, or operate any competing product, service, or AI model; modify the Services or combine the Services with third-party products or services other than as authorized by ProperForm; violate any applicable export or re-export control laws or sanctions, including Export Administration Regulations maintained by the U.S. Department of Commerce and/or the U.S. Department of Treasury; or use the Services in connection with any individual under the age of 13 without first obtaining all consents required by applicable law and in compliance with the Children's Online Privacy Protection Act (COPPA).

6.6. Responsibility for Team Members.

Provider is solely responsible for ensuring its Team Members comply with these Terms. Any action taken by a Team Member with respect to the Services will be deemed an action taken by Provider. ProperForm reserves the right (but will not have the obligation) to monitor use of the Services for compliance with these Terms.

6.7. Medical Decisions.

Provider is solely responsible for all medical or other advice Provider renders and all clinical or other decisions, diagnoses, treatment, instructions, plans, or advice Provider makes in connection with or in reliance on Provider's use of the Services. The Services are intended to be used for documentation and communication purposes only and are not intended to be used to diagnose, treat, cure, mitigate, or prevent any disease or medical condition.

7. Artificial Intelligence

7.1. Use of Artificial Intelligence.

The Services may include features or functionality that use artificial intelligence, machine learning, or similar technologies ("AI Features"). These AI Features may produce results, data, materials, or content ("Output") based on data, information, materials, or content made available to the AI Feature ("Input").

7.2. Ownership.

Output generated from Provider Data through the AI Features is deemed Provider Data for purposes of these Terms. As between Provider and ProperForm, Provider owns all right, title, and interest in and to Output generated using Provider's Input, subject to the license to use Provider Data granted to ProperForm under these Terms.

7.3. Processing.

To the extent Provider Data includes PHI, ProperForm will process the PHI through AI Features solely as permitted under the BAA and solely for the purpose of providing the Services to Provider. ProperForm will not use or disclose PHI processed through AI Features except as permitted by the BAA, these Terms, or applicable law. To the extent an AI Feature is provided by a third-party provider to provide the Services, the applicable provider will process the Input and provide the Output, subject to the restrictions of this Section.

7.4. Restriction on Training.

ProperForm will not use Provider Data (including PHI) to develop, train, fine-tune, or otherwise improve any AI Feature or any AI model or system, whether operated by ProperForm or a third party, and ProperForm will not permit its third-party AI providers to use Provider Data for such purposes. Notwithstanding the foregoing, ProperForm may use de-identified and aggregated data derived from Provider Data, processed in accordance with the de-identification standards set forth in 45 C.F.R. § 164.514 and in accordance with the requirements of the BAA with respect to de-identification of PHI.

7.5. Disclaimer.

Provider acknowledges and agrees that: (a) due to the nature of artificial intelligence and machine learning, Output may be incorrect, inaccurate, or inappropriate for Provider’s intended use; (b) AI Features are not intended to diagnose, treat, cure, mitigate, or prevent any disease or medical condition, or to replace Provider's human decision-making; (c) Provider is solely responsible for ensuring human oversight and validation of AI Feature use and Output, reviewing, validating, and determining the suitability of all Output for Provider's intended use, and for all decisions made in reliance on the Output; (d) Provider is solely responsible for its compliance with all applicable healthcare laws, professional standards, and clinical obligations, including HIPAA; (d) Provider will not represent that Output was human-generated when it was not; and (e) Output provided to Provider may be similar or identical to Output independently provided to and owned by other providers and/or users of the Services.

8. Intellectual Property

8.1. Ownership.

As between ProperForm and Provider, except as expressly set forth in these Terms and any incorporated addenda: (a) Provider owns and retains all its right, title, and interest in and to all Provider Data and all Intellectual Property Rights therein; and (b) ProperForm, its Affiliates, and its licensors own and retain all their respective rights, title, and interest in and to all Usage Data and the Services and all Intellectual Property Rights therein.

8.2. Provider Data License.

Provider grants ProperForm and its Affiliates a worldwide, non-exclusive, royalty-free, sublicensable (solely to ProperForm's third-party providers to provide the Services), and transferable license solely to: (a) use, host, process, copy, transmit, and display Provider Data in connection with ProperForm's performance of its obligations under these Terms; and (b) use and incorporate into the Services in perpetuity the results of any feedback or suggestions provided by Provider regarding the Services. ProperForm acknowledges and agrees Provider feedback and suggestions are provided as-is and without warranties of any kind.

9. Confidentiality

9.1. Confidential Information.

"Confidential Information" means any information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is identified as confidential or should reasonably be understood to be confidential due to the nature of the information and the circumstances of the disclosure, including Provider Data, and any non-public information related to the Services or Documentation, software, know-how, processes, trade secrets, business and marketing plans, technology and technical information, product plans and designs, business and operational methods, and accounting and financial records. Confidential Information does not include any information that is: (a) known to the Receiving Party or within its possession prior to disclosure by the Disclosing Party; (b) made available to the public through no act or omission of the Receiving Party; (c) disclosed to the Receiving Party on a non-confidential basis by a third party having the right to make that disclosure; or (d) independently developed by the Receiving Party without reference to or reliance upon the Disclosing Party's Confidential Information.

9.2. Confidentiality Obligations.

The Receiving Party will keep the Disclosing Party's Confidential Information confidential, exercising the same degree of care that the Receiving Party exercises to keep confidential its own Confidential Information of similar type and importance, but no less than reasonable care. The Receiving Party will not disclose Confidential Information of the Disclosing Party to a third party, except: (a) with the Disclosing Party's prior written consent; (b) to the personnel, professional advisors, and contractors of the Receiving Party or its Affiliates who need to know the Confidential Information; or © as required by law or by order of a court or adjudicator of competent jurisdiction, in which case the Receiving Party will, prior to any disclosure and to the extent permitted by applicable law, promptly provide the Disclosing Party with written notice of the required disclosure such that the Disclosing Party will have the opportunity to contest or limit the scope of the disclosure and, if disclosure is nonetheless required, will reasonably cooperate (at the Disclosing Party's expense) with the Disclosing Party's reasonable and lawful requests related thereto.

9.3. Return or Destruction of Confidential Information.

With respect to all other Confidential Information not constituting personal data (as defined in the DPA) or PHI, upon the termination or expiration of these Terms, or upon the written request of the Disclosing Party, the Receiving Party will promptly (and in any event within 30 days) return or destroy all such Confidential Information in the Receiving Party's possession or control, and certify in writing to the Disclosing Party that such return or destruction has been completed. The return and destruction of Provider Data, PHI, and any other personal data (as defined in the DPA) are governed exclusively by the DPA and BAA, as applicable. Notwithstanding the foregoing, the Receiving Party may retain copies of such Confidential Information to the extent required by applicable law or regulation or as part of routine backup or archival systems, provided such retained copies remain subject to the confidentiality obligations of these Terms for so long as they are retained.

10. Representations, Warranties, Disclaimers

10.1. Mutual.

Each party represents and warrants that: (a) it has full right and authority to enter into and perform under these Terms and that the signatory on behalf of a party is authorized to enter into these Terms on behalf of its respective party; and (b) its performance under these Terms is not in violation of any obligations owed to a third party.

10.2. By Provider.

Provider represents and warrants that: (a) Provider and its Team Members are properly licensed and authorized to provide the services Provider provides to its Clients; and (b) Provider has obtained, and will maintain, all consents, authorizations, and permissions from Clients as may be required in connection with Provider's use of the Services, including: (i) written consent, satisfying all applicable federal and state recording and wiretapping laws (including any all-party or two-party consent requirements in each jurisdiction where Provider or the Client is located at the time of recording), to record, upload, and make available through the Services audio and video recordings of Clients; (ii) informed consent to the processing of such recordings by AI-based transcription software as part of the Services; and (iii) all rights, consents, and authorizations necessary to input and process Provider Data through the Services.

10.3. By ProperForm.

ProperForm represents and warrants that the Services will materially conform to the Documentation during the applicable Subscription Term.

10.4. Disclaimer.

EXCEPT AS PROVIDED BY THESE TERMS, THE SERVICES ARE PROVIDED "AS-IS," AND PROPERFORM DISCLAIMS AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY RELATED TO THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR THAT THE SERVICES WILL BE UNINTERRUPTED, COMPLETELY SECURE, ERROR-FREE, OR MEET ANY PARTICULAR REQUIREMENT OF PROVIDER. PROPERFORM MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES MEET ANY SPECIFIC CLINICAL, DIAGNOSTIC, OR REGULATORY STANDARD APPLICABLE TO MEDICAL DEVICES OR CLINICAL DECISION SUPPORT TOOLS.

10.5. Medical Device Disclaimer.

The Services are not intended to be, and have not been cleared, approved, authorized, or certified by the U.S. Food and Drug Administration (FDA) or any other regulatory authority as a medical device, clinical decision support software, or any other regulated healthcare product. Provider is responsible for ensuring that its use of the Services is consistent with applicable FDA regulations, including those governing software as a medical device (SaMD) and clinical decision support tools.

11. Indemnity

11.1. By ProperForm.

ProperForm will indemnify, defend, and hold harmless Provider and its Affiliates from and against any losses, damages, liabilities, suits, actions, costs, and expenses, including reasonable attorneys' fees (together, "Losses"), arising from any third-party claim alleging that the Services infringe on a third party's Intellectual Property Rights, excluding claims arising from (a) unauthorized modifications to the Services made by or on behalf of Provider; (b) combinations of the Services with third-party products or services not authorized by ProperForm; or (c) Provider's use of the Services in violation of these Terms. The indemnification obligations of this Section constitute ProperForm's entire liability and Provider's exclusive remedy with respect to any actual or alleged third-party claim of infringement or misappropriation of Intellectual Property Rights.

11.2. Right to Mitigate.

If ProperForm is obligated to indemnify, ProperForm may, at its election and sole expense: (a) procure the right for Provider to continue using the applicable Services; (b) replace or modify the applicable Services so that they are no longer infringing; or (c) terminate the applicable Services on written notice to Provider and refund to Provider the pro-rata amount of any pre-paid Fees commensurate with the portion of the Services unused as a result of the termination.

11.3. By Provider.

Provider will indemnify, defend, and hold harmless ProperForm and its Affiliates from and against any Losses arising from any third party claims resulting from or related to: (a) Provider's breach of Provider's Responsibilities, or of Provider's representations or warranties under these Terms; (b) any act or omission by Provider or its Team Members in the provision of services to its Clients, including any claim of professional negligence or malpractice; (c) Provider's failure to obtain required recording, authorization, or other consents from Clients as required by applicable law or these Terms; (d) Provider's violation of applicable healthcare laws, licensing requirements, or professional standards in connection with Provider's use of the Services; or (e) any claim brought by a Client arising from Provider's creation, assignment, or clinical use of a plan or program created through the Services.

11.4. Indemnification Procedure.

Each party's indemnification obligations under this Section are conditioned on the following: (a) the indemnitee will provide the indemnitor with prompt written notice of any claim for which indemnification is sought (provided that failure to provide timely notice will not relieve the indemnitor of its obligations except to the extent the indemnitor is materially prejudiced by the delay); (b) the indemnitor will have the right to assume sole control over the defense and settlement of the claim, using counsel of the indemnitor's reasonable selection; (c) the indemnitee will provide the indemnitor with reasonable cooperation and assistance in the defense of the claim, at the indemnitor's expense; and (d) the indemnitor will not settle any claim in a manner that imposes any monetary obligation on, or requires any admission of liability, wrongdoing, or fault by, the indemnitee without the indemnitee's prior written consent, which will not be unreasonably withheld. If the indemnitor fails to assume the defense of a claim within 30 days of receiving notice, the indemnitee may assume the defense at the indemnitor's expense.

12. Limitation of Liability

12.1. Limitations.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (a) NEITHER PARTY NOR THEIR AFFILIATES WILL BE LIABLE TO THE OTHER PARTY OR THEIR AFFILIATES FOR ANY INCIDENTAL, PUNITIVE, SPECIAL,INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, LOSS OF DATA, REPLACEMENT GOODS OR SERVICES, OR INTERRUPTION OF BUSINESS, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (b) EACH PARTY'S MAXIMUM AGGREGATE LIABILITY UNDER THESE TERMS OR RELATING TO THE SERVICES IS LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE BY PROVIDER FOR THE SERVICES FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE INCIDENT GIVING RISE TO THE LIABILITY (THE "LIABILITY CAP").

12.2. Exclusions.

Notwithstanding the foregoing, the Liability Cap will not apply to liability to: (a) Provider’s indemnification obligations; (b) a party's gross negligence or willful misconduct; (c) any liability that cannot be limited or excluded under applicable law.

13. Termination

13.1. Automatic Termination.

These Terms will remain in effect for so long as any Order is active and will terminate automatically when all active Orders have been cancelled, expired, or terminated.

13.2. Termination for Cause.

Either party may terminate the Services for cause if the other party materially breaches these Terms and fails to remedy that breach within 30 days after receiving written notice reasonably detailing the breach, unless the breach is not reasonably curable, in which case the non-breaching party may terminate the Services immediately. If Provider terminates the Services as a result of ProperForm's material breach, then ProperForm will refund to Provider the pro-rata amount of any pre-paid Fees for the portion of the Services remaining prospectively unused as a result of the termination. If ProperForm terminates the Services as a result of Provider's material breach, all Fees remain due and payable, and Provider will not receive any refund or credit for pre-paid Fees.

13.3. Termination for Insolvency.

Either party may terminate these Terms upon written notice to the other party if the other party ceases business operations without a successor or seeks protection under, or has instituted against it, any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding that is not dismissed within 60 days.

13.4. Off-Boarding.

Upon the cancellation or termination of the Services, ProperForm will provide Provider the limited right to, for a period of 30 days immediately following cancellation or termination (the "Off-Boarding Period"), access applicable functionality of the Services solely for the purpose of extracting Provider Data from the Services in a manner reasonably offered by ProperForm. Provider is solely responsible for extracting all Provider Data, including any data that Provider is required to retain under applicable medical record retention laws, professional regulations, or payer requirements, before the expiration of the Off-Boarding Period. Provider acknowledges and agrees that ProperForm has no obligation to retain, and may permanently delete, Provider Data following expiration of the Off-Boarding Period. The deletion and return of any Provider Data that constitutes PHI is governed exclusively by the BAA.

13.5. Suspension.

ProperForm reserves the right to, immediately and without liability, suspend provision of the Services: (a) if any Fees or other amounts payable under these Terms, which are not disputed in good faith, remain unpaid for more than 30 days following written notice to Provider thereof, until those Fees are paid in full; (b) permanently with respect to any individual Team Member or Provider Data that violates the Acceptable Use Policy section of these Terms; and/or (c) as ProperForm deems necessary, at its sole discretion, to address an actual or reasonably suspected threat to the security, integrity, or availability of the Services until the cause of the suspension is resolved in ProperForm's sole discretion. ProperForm will use commercially reasonable efforts to provide Provider with prior notice of a suspension and to limit the suspension to the affected portion of the Services.

14. Third-Party Links

The Services may contain links to third-party websites or services that are not owned or controlled by ProperForm. ProperForm assumes no responsibility for the content, privacy policies, or practices of any third-party websites or services and will not be liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods, or services available on or through any such websites or services.

15. Changes to Terms or Fees

If Provider purchased the Services through ProperForm’s online purchasing portal and not through a separate written Order ProperForm may make changes to these Terms or its Fees or Plans by providing upon at least 30-days written notice to Provider, provided that (a) the changes will not take effect until the start of Provider’s next renewal Subscription Term following expiration of the 30-day notice period, and (b) if Provider does not agree to a change, Provider may cancel its subscription to the Services before the change takes effect. If Provider purchased the Services through a separate written Order and not through ProperForm's online purchasing portal, these Terms may only be modified by a written amendment executed by both parties.

16. Miscellaneous

16.1. Governing Law and Venue.

These Terms will be governed by the laws of the State of Colorado, without regard to conflict of laws provisions. Any dispute arising from or related to these Terms will be adjudicated exclusively in the state or federal courts having jurisdiction over the matter located in Denver County, Colorado.

16.2. Assignment.

ProperForm may assign these Terms or its rights or obligations hereunder at its discretion. Provider may not assign the Services, these Terms, or its rights or obligations hereunder to any third party without ProperForm's prior written consent. An attempted assignment in violation of the foregoing will be void. Subject to this Section, these Terms will be binding on any permitted assignee.

16.3. Notices.

Notices provided in accordance with these Terms will be in writing and delivered by email to: (a) if to Provider, to any administrator contact that Provider designates in Provider's account within the Services; and (b) if to ProperForm, to [support@properform.fit] (mailto:support@properform.fit).

16.4. Independent Contractors.

The parties are independent contractors of one another. Nothing in these Terms will be deemed to create an agency, employment, partnership, fiduciary, or joint venture between the parties nor the right of a party to make any representations or incur any obligations on behalf of the other party.

16.5. Severability.

If any provision of these Terms is determined by an adjudicator of competent jurisdiction to be illegal, invalid, or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and all other provisions of these Terms will be unaffected and will remain in effect.

16.6. No Waiver.

A party's failure to exercise or its delay in exercising any right or remedy under these Terms will not operate as a waiver thereof; nor will a party's waiver of any right or remedy under these Terms operate as a subsequent waiver of the same or any other right or remedy.

16.7. Force Majeure.

Neither Party will be liable under or in breach of these Terms for any partial or total failure or delay in performing its obligations under these Terms on account of riots, fire, flood, earthquake, explosion, epidemics, war, strike or labor disputes (not involving the subject party), embargo, civil or military authority, act of God, governmental action, or other causes beyond its reasonable control and without the fault or negligence of the other party (a "Force Majeure Event"). In the event of a Force Majeure Event, the non-performing party will resume performance as soon as practicable once the Force Majeure Event is eliminated. If a Force Majeure Event continues for more than 30 days, then the other party may terminate the affected Services and, if Provider is the terminating party, ProperForm will refund to Provider the pro-rata amount of any pre-paid Fees for the portion of the applicable Services remaining prospectively unused as a result of the termination.

16.8. Use of Including.

The word "including" as used in these Terms means "including but not limited to," unless otherwise stated in these Terms.

16.9. Document Precedence.

If there is a conflict between these Terms and another written agreement between the parties, whether separate or incorporated into these Terms, agreements will control in the following order of precedence: (a) the BAA as to its subject matter; (b) the DPA as to its subject matter; (c) the Order; and (d) these Terms.

16.10. Survival.

Any provisions of these Terms that expressly or by their nature are to continue in effect after termination or cancellation of the Services or termination of these Terms will survive cancellation or termination.

16.11. Electronic Signatures; Counterparts.

Electronic signatures or electronic transmission of a signed document are true and valid signatures for all purposes and will bind the parties to the same extent as handwritten signatures. These Terms may be executed in counterparts, each of which is deemed an original and all of which together are deemed to be one and the same agreement.

16.12. Entire Agreement.

All documents of any nature that incorporate or are incorporated into these Terms will be read and interpreted together with, and made part of, these Terms as a single document. These Terms are the final agreement between the parties with respect to the subject matter hereof and supersede all prior or contemporaneous agreements, understandings, negotiations, or discussions between the parties, whether oral or written, related to the subject matter of these Terms.