Last Updated: August 25, 2023

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PLEASE REVIEW THESE TERMS OF SERVICE CAREFULLY. ARBITRATION NOTICE: Except for certain kinds of disputes described in the “Mandatory Arbitration” section below, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND WE EACH WAIVE THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.

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Notwithstanding the foregoing, if you are participating in the Flossy network pursuant to a participation agreement between your DSO and Flossy, or if you have a separate negotiated services agreement with Flossy governing your participation in the Flossy network (in either case, a “Separate Contract”), then in the event of any conflict between the provisions of these Terms and that Separate Contract, the provisions of that Separate Contract will govern.

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By registering an account through the Flossy Service, or otherwise accessing or using the Flossy Service as a Provider, you agree to be bound by these Terms (and, if applicable, the Separate Contract). If you are an entity, organization, or company, the individual accepting these Terms (and, if applicable, the Separate Contract) on your behalf (such as an office manager, receptionist, or other front office staff) represents and warrants that they have authority to bind you to these Terms (and, if applicable, the Separate Contract) and you agree to be bound by these Terms (and, if applicable, the Separate Contract).

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We may update these Terms from time to time in our discretion. We will always keep the current version of these Terms posted on this website. By using the Flossy Service after a new version of these Terms have been posted, you agree to the terms and conditions of such version of these Terms. If you do not agree to these Terms, you must immediately cease your use of the Flossy Service.

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PATIENTS; INTERACTIONS

Once you have been added as a participant in the Flossy network, we may show you as an option for patients seeking applicable dental services/treatments (“Dental Services”) in your area. If a prospective patient selects you as an option, we will use commercially reasonable efforts to facilitate an appointment booking (e.g., through our portal, by calling or emailing you, or otherwise).

We have no control over, and are not responsible for, your interactions (online or in person) with any third parties, including patients. We have no responsibility for the completeness or accuracy of any information provided by prospective or actual patients. You are solely responsible for your interactions with any third parties. If you have any disputes with other users of the Flossy Service (including for alleged failure to pay any agreed amounts), your sole recourse is against the applicable user, and you hereby waive any claims against us as relates to such dispute. If you notify us of such disputes, we may (in our sole discretion) attempt to facilitate a resolution or take appropriate action but are under no obligation whatsoever to do so. Each party will comply with the terms and conditions of the terms of the Business Associate Agreement entered into between the parties attached hereto as Exhibit A (the “BAA”). 

We structure and price the Flossy Service on the basis of receiving ongoing transactional fees from repeat patients whose payments are processed through the Flossy Service. Accordingly, you hereby agree not to directly or indirectly instruct, request, or encourage any patients introduced to you via the Flossy Service to pay for Dental Services other than through the Flossy Service (excluding patients who pay in cash where you collect the applicable Patient Fees and report and remit applicable payments through the Flossy Service yourself, as described in the “Pricing and Payment - Patients” section below). This restriction will remain in effect until 12 months after we terminate your account or you terminate your participation in the Flossy Service by notifying us in writing. If we believe in good faith that you have violated this restriction, then in addition to our right to terminate your account and any other remedies available to us hereunder or at law or equity:

• For the first violation, we will provide you a written or emailed notice reminding you of this requirement;
• For each additional violation, we may withhold up to $300 from amounts that would otherwise be payable to you, increasing to $500 for the third violation and $1,000 for the fourth violation onward.

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PRICING AND PAYMENT - PROVIDERS

A “Booking” occurs when a patient uses Flossy to book an appointment with a Provider. We charge most Providers a referral fee the first-time a given patient makes a Booking with a given Provider. We may waive referral fees for specialty Providers who book via a general practice Provider participating in the Flossy network. Our then-current referral fees will be available on our website, portal, or documentation (and you may request information on our current referral fees at any time). If a patient cancels the applicable Booking through Flossy within 24 hours, we will not charge a referral fee on that Booking (but will instead charge a referral fee on the rescheduled or replacement Booking, if any). Provider may request a waiver or refund in case of other extenuating circumstances, which we may grant or reject in our discretion.

We will generally aggregate referral fees for applicable Bookings and invoice Provider monthly in arrears for the applicable fees (but we reserve the right to instead charge referral fees at the time each applicable Booking is made). We may from time to time offer Providers the ability to set a one-time or recurring marketing budget or similar cap on referral fees, in which case we reserve the right to suspend referrals to Provider once the budget or cap has been met. We may also from time to time offer Providers the ability to earn credits on referral fees by making qualified referrals or taking other actions, which will be subject to the additional terms and details displayed at such time.

We may from time to time give you the option to purchase additional features or offerings, in which case you will be shown the price before purchasing. By providing us a payment card or other payment method information, you authorize us to charge you for the designated amounts on a one-time or recurring basis, as selected by you. You acknowledge and agree that we may use one or more third-party payment processors to facilitate payments made through the Flossy Service, and that such payment processors will receive sufficient information regarding you and your payment method as needed to process such payments. You must pay all invoiced amounts within 15 days from receipt of the applicable invoice (unless otherwise agreed in writing by us). If you do not pay any owed amounts when due, in addition to any other rights and remedies available to us: (1) we may suspend your access to the Flossy Services and Flossy network; (2) we may charge you interest on all overdue amounts at a rate of 1.5% per month, or the greatest rate permitted by applicable law, whichever is less; and (3) you will be responsible for any reasonable expenses we incur in collecting overdue payments (e.g., legal costs, third party collections fees, etc.). Unless otherwise expressly set forth herein, all payments are non-refundable.

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PRICING AND PAYMENT - PATIENTS

When patients pay for a Dental Service directly (on the basis of the fee schedule agreed by Flossy and the Provider in advance, either directly or via a third-party PPO, DSO, or similar organization) (“Direct Payment”), the patient is charged certain additional transactional fees and charges, as set and updated by Flossy from time to time (the “Patient Fees”). To process any Direct Payments made via payment card, you must either use your account on our portal or the payment processing link provided in our confirmation email to you. We will transfer the base Dental Service fee to you once the funds are actually received by us and have cleared any applicable holds. For Direct Payments in cash, you are responsible for: (1) collecting the applicable Patient Fees in addition to the agreed base price for the applicable Dental Service(s); (2) recording the payment through the Flossy portal; and (3) passing through the Patient Fees to us. 

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When patients elect to use insurance for a covered Dental Service, you are responsible for reporting the transaction through the Flossy portal and processing the claim through the patient’s insurance provider.  We are not responsible for any non-payment or under-payment by patients and will have no (and you release us from any) obligation to pay you any amounts not actually received from the patient. For insured patients, we may offer to conduct a verification of benefits and provide a breakdown summary to you. This is provided to you as a convenience and without charge, on an “as is” basis, and we make no representation or warranty that the information provided will be accurate, error-free, or up to date.

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COMMUNITY STANDARDS

We are not responsible for the conduct of any users. You will act in a professional, business-like, respectful, ethical, and lawful manner when using the Flossy Service. Without limiting the foregoing, you represent, warrant, and agree that you will not: (i) remove any trademark or copyright notices contained in the Flossy Service or any information, data, text, software, music, sound, photographs, graphics, video, messages, or other material or content that are displayed, used, or otherwise incorporated into the Flossy Service (collectively, “Content”); (ii) reproduce, modify, publish, distribute, transmit, disseminate, transfer, license, sell, lease, create derivative works based upon, or in any way commercially exploit the Flossy Service or Content; (iii) use manual or automated means to trawl, mine, scrape, frame, or mirror the Flossy Service or Content; (iv) disassemble, decompile or reverse engineer the Flossy Service or Content; (v) attempt to hack, defeat, or overcome any encryption technology or security measures regarding the Flossy Service or our other systems or those of any third party, or gain any unauthorized access to any systems or accounts; (vi) interfere with or disrupt the operation of the Flossy Service or any other systems or otherwise interrupt or interfere with any other user’s use or enjoyment of the Flossy Service; (vii) promote illegal activity or violate any applicable local, state, national or international law; (viii) post or transmit any Content, or otherwise behave in any manner, that is discriminatory, unlawful, defamatory, abusive, harassing, threatening, indecent, pornographic, obscene, fraudulent or otherwise inappropriate or infringes any intellectual property or privacy or other rights of any person; (ix) send unsolicited advertisements; (x) impersonate any person or misrepresent your identity or affiliation; (xi) use the Flossy Service in a way that is not for its intended purposes or that will adversely affect us or reflect negatively on us, any of our goodwill, name or reputation; (xii) provide any false or misleading information or any information that you do not have the right to provide; or (xiii) otherwise violate any of our published rules, policies, or guidelines. 

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ACCOUNTS

If you create an account on the Flossy Service, you will be required to provide certain information (including personal information). Your information will be treated in accordance with our then-current posted privacy policy, which is hereby incorporated into these Terms. You are responsible for maintaining the security of your account and your login credentials, and you will be responsible for any actions taken using your account credentials. You are responsible for ensuring you provide complete and accurate information and keep such information up to date, and you are responsible for any liability or damages arising from false, fraudulent, inaccurate, or incomplete information.

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COMPLIANCE AND QUALIFICATIONS

You are responsible for ensuring you comply with any local, state, national, or other rules and regulations, including without limitation any applicable healthcare and privacy laws. You hold all credentials, qualifications, and licenses required to be held by you under any applicable laws and regulations. You may also be required to demonstrate that you meet such credentialing, qualification, or licensure requirements to use the Flossy Service.  You are solely responsible for the content and quality of your services and offerings, and for fulfilling any agreements you enter into with patients.

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CONTENT; OWNERSHIP AND LICENSE

All Content is owned by us or our third-party licensors and vendors and is protected by applicable copyright, trademark, and/or other intellectual property laws. Nothing in the Flossy Service should be construed as granting any license or right to use any of the Content without our written permission other than as set forth herein. Subject to your continued compliance with these Terms, we hereby grant you a personal, non-exclusive, revocable, non-transferable, and non-sublicensable license to access and use the Flossy Service and Content as authorized herein for your personal use. Any use of the trademarks included in the Content will inure to our (or the applicable licensor’s) benefit. You may not use or share any Content other than through or in connection with your use of the Flossy Service.

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FEEDBACK

If you provide feedback, suggestions, improvements, or requests for additional functionality related to the Flossy Service (collectively, “Feedback”), you grant us an unrestricted, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, display, perform, modify, transmit, distribute and create derivative works of such Feedback in any way we deem reasonable, without any attribution or accounting to you. This paragraph will survive any termination or expiration of these Terms or of your account on the Flossy Service.

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THIRD PARTY SITES AND CONTENT

The Flossy Service may contain marketing materials provided by or promoting, and links to websites owned or operated by third parties and their products and services.

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We do not control or endorse such parties, websites, products, or services, and we are not responsible for their content (whether included on a third-party site or the Flossy Service), nor are we responsible for the accuracy or reliability of any information, data, opinions, advice, or statements contained within such content. We have the right, but not the obligation, to review and modify or delete any content provided by third parties (including other users of the Flossy Service). Any views expressed in third-party content are the views of the applicable author and do not necessarily align with our views. We will not be liable for any causes of action (including slander, libel, or invasion of privacy) relating to such third-party content.

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DISCLAIMERS

YOUR USE OF THE FLOSSY SERVICE AND CONTENT IS AT YOUR SOLE RISK AND THE FLOSSY SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE AND OUR LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE FLOSSY SERVICE AND CONTENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE OR THE CONTENT WILL BE COMPLETE OR ACCURATE. WE ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY ELECTRONIC NETWORK OR LINES, SERVERS, SOFTWARE, OR FAILURE OF TRANSMISSION AS A RESULT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON THE FLOSSY SERVICE, INCLUDING ANY INJURY OR DAMAGE TO ANY PERSON'S COMPUTER RESULTING FROM PARTICIPATION OR DOWNLOADING MATERIALS IN CONNECTION WITH THE FLOSSY SERVICE. UNDER NO CIRCUMSTANCES SHALL WE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE FLOSSY SERVICE, CONTENT, OR FROM THE CONDUCT OF ANY USERS OF THE FLOSSY SERVICE OR OTHER THIRD PARTIES. YOU ARE RESPONSIBLE FOR KEEPING YOUR OWN RECORDS AND MAKING APPROPRIATE BACKUPS – WE WILL NOT BE RESPONSIBLE FOR ANY LOSS OF DATA IN OUR POSSESSION OR CONTROL.

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WE DO NOT REPRESENT AND CANNOT GUARANTEE ANY SPECIFIC RESULTS FROM USE OF THE FLOSSY SERVICE, INCLUDING WITHOUT LIMITATION ANY INCREASE IN PATIENTS, BOOKINGS, OR BUSINESS. WE DO NOT GUARANTEE YOU PREFERRED OR EQUAL PLACEMENT OR POSITIONING IN THE FLOSSY NETWORK AND WE MAY REFER PATIENTS TO OTHER PROVIDERS IN YOUR AREA. WE ARE NOT AN AGENT OR FIDUCIARY OF YOU OR ANY PATIENT.

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SOME STATES DO NOT ALLOW CERTAIN DISCLAIMERS OR LIMITATIONS ON WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THESE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

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LIMITATION OF LIABILITY

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NEITHER WE NOR OUR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR DATA (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), PERSONAL INJURY, DEATH, OR LOSS OR DAMAGE OF PROPERTY, RESULTING FROM THE USE OF OR THE INABILITY TO USE THE FLOSSY SERVICE, UNDER ANY LEGAL THEORY WHATSOEVER (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE). TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NEITHER WE NOR OUR LICENSORS WILL BE LIABLE TO YOU FOR AN AGGREGATE AMOUNT EXCEEDING THE GREATER OF $100 USD OR THE AMOUNTS PAID BY YOU TO US IN THE PAST THREE MONTHS; PROVIDED, HOWEVER, THAT IN THE EVENT OF A BREACH OF THE BAA BY EITHER PARTY, THE BREACHING PARTY’S LIABILITY WILL NOT EXCEED THE GREATER OF 5 TIMES THE TOTAL AMOUNTS PAID BY PROVIDER TO FLOSSY UNDER THE PROVIDER TERMS OF SERVICE IN THE PAST 12 MONTHS PRECEDING THE DATE ON WHICH THE LIABILITY AROSE, OR ONE HUNDRED THOUSAND US DOLLARS ($100,000). SOME STATES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY FOR DAMAGES, SO THE ABOVE MAY NOT APPLY TO YOU. YOUR SOLE REMEDY IF YOU ARE DISSATISFIED WITH THE FLOSSY SERVICE IS TO DISCONTINUE YOUR USE THEREOF.

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RELEASE AND INDEMNITY

You will release, defend, indemnify, and hold us, our past, present, and future affiliates, licensors, licensees, marketing partners, and suppliers, together with their respective officers, directors, employees, and agents, harmless from and against any damages, losses, claims, actions or demands, liabilities and settlements including without limitation reasonable legal and accounting fees, resulting from: (i) your use of the Flossy Service, (ii) your violation of these Terms or the BAA, or (iii) your Treatments, services, or offerings or other interactions with prospective or actual patients. We may opt to defend such claims at our sole discretion, in which case you will indemnify us for the costs of such defense.

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California residents hereby waive California Civil Code Section 1542, which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.”

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TERMINATION

These Terms take effect upon your first access to or use of the Flossy Service. We reserve the right to modify or discontinue, temporarily or permanently, the Flossy Service (or any part thereof) without notice. Your right to use the Flossy Service will automatically terminate if you breach these Terms. We may terminate or suspend your account at any time, without liability to you. You may stop using the Flossy Service at any time; to delete your account please contact us as set forth at the end of these Terms. Termination will not relieve either party from any obligations incurred or arising prior to such termination, and those sections of these Terms which are by their nature intended to survive termination (including, without limitation, the disclaimers, limitation of liability, indemnity, and general clauses) shall so survive. 

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MANDATORY ARBITRATION

Generally. In the interest of resolving disputes between you and us in the most expedient and cost effective manner, and except as described below, you and we agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

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Exceptions. Despite the provisions of the preceding paragraph, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

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Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this “Mandatory Arbitration” section within 30 days after the date that you agree to these Terms by sending a letter to Grin Technology Services, Inc., Attention: Legal Department – Arbitration Opt-Out, 8605 Santa Monica Blvd., West Hollywood CA 90069 that specifies: your full legal name, the email address associated with your account on the Flossy Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). The remaining provisions of these Terms will not be affected by your Opt-Out Notice.

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Arbitrator. Any arbitration between you and us will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting us. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

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Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Our address for Notice is: Grin Technology Services, Inc., 8605 Santa Monica Blvd., West Hollywood CA 90069. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or we may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or us must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by us in settlement of the dispute prior to the award, we will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.

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Fees. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

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No Class Actions. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

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Modifications to this Arbitration Provision. If we make any future change to this arbitration provision, other than a change to our address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case your account with us will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

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Enforceability. If the section titled “No Class Actions” or the entirety of this section on mandatory arbitration is found to be unenforceable, or if we receive an Opt-Out Notice from you, then the entirety of this arbitration section will be null and void and, in that case, exclusive jurisdiction and venue described in the section titled “Governing Law; Venue” below will govern any action arising out of or related to these Terms.

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GOVERNING LAW; VENUE

These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and we both submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Flossy Service from our offices in California, and we make no representation that Materials included in the Flossy Service are appropriate or available for use in other locations.

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FORCE MAJEURE

We will not be responsible or liable for any delays or failures to perform due to causes beyond our reasonable control, which may include natural disasters, terrorist attacks, criminal activity, failure of internet or communications networks, health emergencies including pandemics or similar serious outbreaks of disease, or other force majeure events.

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NOTICE TO CALIFORNIA RESIDENTS.

If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Flossy Service or to receive further information regarding use of the Flossy Service.

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GENERAL

The BAA is hereby incorporated into these Terms. In the event of a conflict between the BAA and these Terms, the Terms shall control except with respect to provisions expressly required under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). You may not assign these Terms or these rights and obligations without our prior written consent; any purported assignment in violation of these Terms will be null and void. If any provision of these Terms is determined to be void or unenforceable in whole or in part, the remaining provisions of these Terms shall not be affected thereby and shall remain in force and effect. These Terms and any policies referenced herein constitute the entire agreement between the parties regarding the subject matter thereof and supersede any prior or contemporaneous agreements with regards to such subject matter. A party's failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. You may provide notice to us by contacting us as set forth below. We may provide notice to you by email or regular mail at the address listed in your account profile, or through messages displayed or sent via this website or the Flossy Service.

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CONTACT

The Flossy Service is offered by Grin Technology Services, Inc., located at 8605 Santa Monica Blvd., West Hollywood CA 90069. You may contact us by sending correspondence to that address or by emailing us at hello@flossy.com.

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EXHIBIT A TO PROVIDER TERMS OF SERVICE

HIPAA Business Associate Agreement

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This Business Associate Agreement (“BAA”) is entered into by and between Grin Technology Services, Inc. d/b/a Flossy as Business Associate and Provider as a Covered Entity and is effective as of the date Provider agrees to Flossy’s Provider Terms of Service (“Effective Date”).  Business Associate and Covered Entity may be referred to herein collectively as “Parties” or individually as a “Party.”  This BAA is incorporated into and made part of the Terms (defined below).

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WHEREAS, Business Associate provides certain Services to Covered Entity as defined in and pursuant to Flossy’s Provider Terms of Service to which this Exhibit A is attached to and incorporated therein (the “Terms”);

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WHEREAS, in connection with these Services, Business Associate may create, receive, maintain or transmit PHI from, to, or on behalf of, Covered Entity, which PHI is subject to certain protections under the HIPAA Rules; and

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WHEREAS, this BAA defines the rights and responsibilities of each Party with respect to PHI exchanged pursuant to this BAA and the Terms;

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NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

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1. Scope; Definitions.

• This BAA shall be effective solely to the extent Flossy has agreed to perform Services that require Flossy to create, receive, maintain or transmit PHI pursuant to the Terms.    
• All terms used but not defined herein shall have the meaning set forth in the HIPAA Rules or the Terms, as applicable; provided, in the event of a conflict between defined terms, the HIPAA Rules shall control.  
• The following terms are specifically defined as follows:

• “Business Associate” has the same meaning as the term “business associate” at 45 CFR 160.103, and, subject to Section 1(a), in reference to the Party to this BAA, shall mean Flossy.
• “Covered Entity” has the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the Party to this BAA, shall mean the Covered Entity agreeing to the Terms.
• “HIPAA Rules” means, with respect to the federal Health Insurance Portability and Accountability Act of 1996, Pub. Law 101-191, as amended from time to time, and the Health Information Technology for Economic and Clinical Health (“HITECH”) Act of 2009 (as applicable).
• “Unsuccessful Security Incidents” means, without limitation, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, Use or Disclosure of Covered Entity’s electronic protected health information “ePHI.”

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2. Obligations and Activities of Business Associate.

1. Business Associate agrees not to Use or Disclose PHI received or created by Business Associate except as permitted by this BAA, the Terms, or as Required by Law.
2. Business Associate agrees to use appropriate safeguards, and to comply with Subpart C of 45 CFR Part 164 with respect to ePHI, to prevent Use or Disclosure of PHI other than as provided for by this BAA, the Terms, or as Required by Law.
3. Business Associate agrees to report to Covered Entity any Use or Disclosure of PHI not provided for by this BAA of which it becomes aware, including a Breach of Unsecured PHI as required under 45 C.F.R. §164.410, and any Security Incident of which it becomes aware.   Notwithstanding the foregoing, the Parties acknowledge and agree that this Section 2(c) constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required.  
4. Business Associate agrees, in accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, to obtain from any Subcontractor that creates, receives, maintains, or transmits PHI on behalf of Business Associate pursuant to this BAA and the Terms, reasonable written assurances that Subcontractor will adhere to the restrictions and conditions that apply to Business Associate through this BAA with respect to such PHI as required by the HIPAA Rules.
5. Business Associate Agrees to make amendment(s) to PHI maintained in a Designated Record Set (if any), as requested by the Covered Entity or an individual (as applicable) pursuant to 45 C.F.R. §164.526, or take other measures as reasonably necessary to enable Covered Entity to satisfy its obligations under 45 C.F.R. §164.526.  
6. Business Associate agrees to make available, at the request of Covered Entity, PHI that is maintained in a Designated Record Set (if any) as necessary to allow Covered Entity to satisfy its obligations under 45 C.F.R. §164.524.
7. Business Associate agrees to maintain and make available to Covered Entity the information required to provide an accounting of Disclosures, as reasonably necessary to satisfy Covered Entity’s obligations under 45 C.F.R. §164.528.

1. For clarity, with respect to the forgoing Section 2(e)-(g), in no case shall Business Associate be responsible for responding directly to any Individual who submits a request to Business Associate pursuant to 45 CFR §164.524; provided that Business Associate shall promptly forward such request to Covered Entity in accordance with Section 2(e)-(g).

8. To the extent that Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, Business Associate agrees to comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation(s).
9. Business Associate agrees to make its internal practices, books, and records, regarding the Use and Disclosure of PHI created or received by the Business Associate on behalf of the Covered Entity available to the Secretary for purposes of the Secretary determining compliance with the HIPAA Rules.

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3. Permitted Uses and Disclosures by Business Associate.

1. Business Associate may only Use or Disclose PHI as permitted in this BAA, the Terms, or as Required by Law. Business Associate may provide Data Aggregation services to Covered Entity, and may de-identify the PHI in accordance with 45 CFR 164.514(a)-(c).
2. Business Associate may not Use or Disclose PHI in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity.
3. Business Associate may Use PHI for its proper management and administration, or to carry out its legal responsibilities. 
4. Business Associate may Disclose PHI for its proper management and administration, or to carry out the legal responsibilities, provided the disclosures are (i) Required by Law, or (ii) Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies business associate of any instances of which it is aware in which the confidentiality of the information has been breached.
5. Any permitted Use or Disclosure under Section 3(b)(i)-(iv) shall be consistent with the minimum necessary requirements set forth in the HIPAA Rules.

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4. Obligations of Covered Entity.

1. During the Term of this BAA, Covered Entity shall:

1. Provide Business Associate with a copy of its Notice of Privacy Practices;
2. Notify Business Associate of any limitations in its Notice of Privacy Practices, to the extent that such limitation may affect Business Associate’s Use or Disclosure of PHI;
3. Notify Business Associate of any changes in, or revocation of, permission by an Individual to Use or Disclose PHI, to the extent that such changes may affect Business Associate’s Use or Disclosure of PHI;
4. Not request Business Associate to Use or Disclose PHI in any manner that would not be permissible under HIPAA if done by Covered Entity (other than as permitted pursuant to Section 3(b)(iii)-(iv), above); and
5. Comply with all HIPAA requirements applicable to Covered Entity.

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5. Term and Termination.

1. Term.  The Term of this BAA shall commence as of the Effective Date and, except for the rights and obligations set forth in this BAA specifically surviving termination, shall terminate upon the termination or expiration of the Terms, unless otherwise earlier terminated for cause in accordance with this Section 5.
2. Termination by Covered Entity.  In addition to any termination provisions set forth in the Terms, Covered Entity may terminate this BAA if Covered Entity determines, in good faith and after reasonable investigation, that Business Associate has violated a material term of this BAA, and Business Associate has failed to cure such material breach or end the violation within thirty (30) days of notice by Covered Entity of such alleged breach.
3. Termination by Business Associate.  In addition to and notwithstanding any termination provisions set forth in the Terms, Business Associate may terminate this BAA if Business Associate determines, in good faith and after reasonable investigation, that Covered Entity has violated a material term of this BAA, and Covered Entity has failed to cure such material breach or end the violation within thirty (30) days of notice by Business Associate of such alleged breach.
4. Effect of Termination.  Upon termination or expiration of this BAA for any reason, Business Associate, with respect to any PHI received from Covered Entity or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:

1. Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities (if any);
2. Return to Covered Entity or destroy, at Covered Entity’s expense, the remaining PHI that the Business Associate still maintains in any form that is not necessary to carry out Section 5(d)(i);
3. Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to ePHI to prevent Use or Disclosure of the PHI, other than as provided for in this Section 5(d), for as long as Business Associate retains the PHI;
4. Not Use or Disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out at Section 3(b)(iii) which applied prior to termination; and
5. Return to Covered Entity or destroy the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration, or to carry out its legal responsibilities.

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6. Limitation of Liability.

• Notwithstanding anything to the contrary set forth herein, the Limitation of Liability set forth in the Terms shall apply to limit the Parties’ liability under this BAA. 
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7. Miscellaneous.

• This BAA is governed by, and will be construed in accordance with, the laws of the State that govern the Terms. Any action relating to this BAA must be commenced within two years after the date upon which the cause of action accrued. This BAA may only be assigned in connection with an assignment of the Terms. If any part of a provision of this BAA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the remainder of that provision and all other provisions of this BAA will not be affected. All notices relating to the Parties’ legal rights and remedies under this BAA will be provided in writing to a Party, will be sent to its address set forth in the Terms, or to such other address as may be designated by that Party by notice to the sending Party, and will reference this BAA. This BAA may be modified, or any rights under it waived, only by a written agreement executed by the authorized representatives of the Parties. In the event a change in the HIPAA Rules require the Parties to amend this BAA, the Parties agree to negotiate such amendment in good faith, provided that either Party may terminate this BAA upon notice if the Parties are unable to mutually agree upon and execute such amendment. This BAA is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing all prior agreements, communications, and understandings (written and oral) regarding its subject matter. Any ambiguity in this BAA shall be resolved in favor of the meaning that permits the Parties to comply with applicable law and any current regulations promulgated thereunder. Any failure of a Party to exercise or enforce any of its rights under this BAA will not act as a waiver of such rights.

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[End of BAA]