Terms of Service

 

 

Terms of Service v2.0

Effective Date: March 19, 2026 Applies To: Subscriber / Provider Customers Governing Law: State of New Jersey Last Revised: March 2026

Binding Arbitration & Class Action Waiver — Please Read This Agreement includes a mutual binding arbitration agreement in Section 10 requiring resolution of most disputes by individual arbitration, and a class action waiver, unless you opt out within 30 days of entering your Service Order. By accepting these Terms of Service, you agree to be bound by this Agreement. If you do not agree, do not order or use the Services.

  1. Introduction

Please review these Terms of Service carefully. Once accepted, these Terms of Service become a binding legal agreement between you (“you,” “your,” “Subscriber”) and Hoot Health Inc., a Delaware corporation (“we,” “us,” “Hoot”). Together, you and Hoot are the “parties.”

Hoot provides physician-led digital health education, patient engagement, and content marketing services to health care providers across multiple specialties (the “Services”). By ordering the Services through a service order, Hoot’s website, or your Hoot account (each, a “Service Order”), you accept and agree to these Terms of Service. These Terms of Service together with any Service Order, any HIPAA Business Associate Agreement entered separately between the parties (the “BAA”), and any applicable Service Level Agreement constitute the complete “Agreement” between you and Hoot.

Note on HIPAA Business Associate Agreement If you are a Covered Entity under HIPAA and Hoot will process Protected Health Information on your behalf, the parties must execute a separate, signed HIPAA Business Associate Agreement. The BAA governs Hoot’s handling of PHI and is separate from these Terms of Service. A BAA cannot be validly executed by checking a box or clicking a button embedded in a terms of service document; it requires a signed written agreement. Contact legal@hootmyopiacare.com to execute the Hoot BAA.

These Terms of Service are subject to change as described in Section 13.8. The most current version will always be posted at gethoot.com/terms-of-service/.

  1. Definitions

The following defined terms are used throughout this Agreement. Additional defined terms appear in context. Defined terms are capitalized when used after their initial definition.

“Agreement” — These Terms of Service together with any Service Order, any separately executed BAA, and any applicable Service Level Agreement, all as amended from time to time.

“Applicable Law” — Any federal, state, or local law, statute, regulation, ordinance, rule, court order, or arbitration determination applicable to you or us in a given circumstance, including HIPAA, HITECH, ARRA, TCPA, CCPA/CPRA, and applicable state health data privacy laws.

“BAA” — The HIPAA Business Associate Agreement, if any, separately signed and executed between you and Hoot. A BAA must be separately signed and cannot be incorporated by checkbox acceptance.

“De-identified Data” — Data de-identified in accordance with 45 C.F.R. § 164.514(a)–(c) such that it no longer constitutes PHI or personal information under applicable law.

“End User” — Each user of the Platform who is a patient or prospective patient of Subscriber, or who uses the Platform on behalf of a patient or prospective patient of Subscriber.

“HIPAA” — The Health Insurance Portability and Accountability Act of 1996, as amended by HITECH, ARRA, CAA-21, and regulations promulgated thereunder, including the Privacy Rule (45 C.F.R. Parts 160 and 164) and the Security Rule (45 C.F.R. Part 164).

“Hoot Content” — Content created or provided by Hoot, including educational materials, AI-generated content, marketing materials, forms, agreements, and other materials displayed in the Services or on the Platform, in any form.

“Hoot Data” — Data and data compilations aggregated, compiled, created, or derived by Hoot from User Data or from use of the Platform or Services, including De-identified Data. Hoot Data does not include PHI that has not been de-identified.

“PHI” — Protected Health Information, as defined under HIPAA (45 C.F.R. § 160.103), that Hoot receives, creates, maintains, uses, or discloses as a business associate on behalf of Subscriber as a covered entity.

“Platform” — The electronic systems, applications, and internet sites operated by Hoot, including app-hoot.com, hootdryeyes.com, hootmyopiacare.com, and gethoot.com, and any associated portals or digital tools.

“Service Level Agreement” — Any uptime, availability, or performance commitment agreed in writing between the parties in connection with a Service Order.

“Service Order” — Any order form, statement of work, or other document executed by the parties describing the specific Services to be provided, applicable fees, and the service term.

“Subscriber User” — Each user you authorize to use the Services on your behalf, including your employees, contractors, and agents.

“User Data” — Data and data compilations you, your Subscriber Users, or your End Users provide or make available to Hoot in connection with use of the Platform or Services, including personal information and PHI.

  1. Intellectual Property Rights

3.1 Hoot’s Intellectual Property

Between you and Hoot, Hoot owns all right, title, and interest in and to the Services, Platform, Hoot Content, and Hoot Data (collectively, “Hoot Property”), including all components, derivative works, and associated copyrights, patents, trade secrets, trademarks, and other intellectual property rights. All rights in the Hoot Property not expressly granted to you in this Agreement are reserved by Hoot. You acquire no ownership interest, license, or derivative work in the Hoot Property through your use of it. You are not granted any right to use any Hoot trademark, service mark, logo, or trade name except as expressly authorized in writing.

3.2 Physician Likeness License

If you collaborate with Hoot in creating Hoot Content and provide your name, nickname, image, voice, caricature, endorsement, signature, initials, reputation, autograph, biographical data, or likeness (collectively, “Likeness”), you grant Hoot a royalty-free, perpetual, irrevocable, transferable, and sublicensable worldwide license to use your Likeness in connection with the display, performance, broadcast, transmission, distribution, sublicensing, sale, advertising, and promotion of the Hoot Content in all media, whether now known or hereafter developed, without restriction and without additional compensation to you. You acquire no right, title, or interest to any Hoot Content through such collaboration. This license survives termination of this Agreement with respect to Hoot Content created prior to termination.

3.3 Subscriber-Created Content

If you independently create content (including practice-specific educational materials) for use within the Platform without Hoot’s content creation services, you retain ownership of that content (“Subscriber Content”). You grant Hoot a non-exclusive, royalty-free license to host, display, and deliver Subscriber Content through the Platform solely to provide the Services. You are solely responsible for the accuracy, legality, and clinical appropriateness of Subscriber Content. Hoot takes no responsibility for and assumes no liability for Subscriber Content. Upon termination of this Agreement, Hoot’s license to Subscriber Content terminates and Hoot will make Subscriber Content available for download for 30 days post-termination, after which it may be deleted.

3.4 License to User Data; Hoot’s Ownership of Hoot Data

You grant Hoot a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide license to access, store, process, use, copy, record, modify, aggregate, de-identify, make compilations of, make derivative works from, translate, disclose, transfer, and export User Data to provide and improve the Services, subject to the following material limitations:

a. HIPAA Compliance: Hoot may only use or disclose PHI in compliance with HIPAA and the BAA. Hoot may not sell PHI without the patient’s separate, valid written authorization as required by ARRA § 13405(d) and 45 C.F.R. § 164.508(a)(3).

b. De-identification: Hoot may de-identify PHI in accordance with 45 C.F.R. § 164.514. De-identified Data is not PHI and is owned by Hoot. Hoot may use, license, sell, or commercialize De-identified Data without restriction.

c. AI and Machine Learning: Hoot may use User Data in de-identified or aggregated form to train, validate, and improve AI and machine learning models. Hoot retains sole ownership of all AI models and derived insights. Identifiable PHI will not be used to train AI models without a specific lawful basis.

d. No PHI Monetization Without Authorization: Hoot will not sell or disclose identifiable PHI to third parties for direct financial remuneration without a valid individual HIPAA authorization. You are not entitled to compensation for Hoot’s licensed use of de-identified or non-PHI User Data.

Hoot owns all Hoot Data. To the extent you have any rights in Hoot Data, you hereby assign all such rights to Hoot.

3.5 AI Content Disclosure

Some Hoot Content may be generated or augmented by artificial intelligence systems (“AI Content”). AI Content is for informational and educational purposes only and does not constitute medical advice. Hoot makes no representation that AI Content is free from inaccuracies or reflects the most current clinical evidence. You and your Subscriber Users must apply independent professional medical judgment before relying on AI Content in any clinical context.

3.6 Feedback License

We encourage you to submit suggestions, enhancement requests, recommendations, or corrections regarding the Hoot Property (“Feedback”). By submitting Feedback, you grant Hoot an exclusive, royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide license to use, copy, modify, create derivative works from, distribute, display, and exploit the Feedback in any form or medium, without restriction or compensation. Hoot has no obligation to keep Feedback confidential, pay any compensation for Feedback, or respond to Feedback. You are prohibited from reposting, republishing, or redistributing Feedback. You are solely responsible for the accuracy and legality of any Feedback you provide.

  1. Your Use of the Services

4.1 License Grant

Subject to the terms of this Agreement and payment of all applicable fees, Hoot grants you a non-exclusive, non-transferable, non-sublicensable, limited license and right to use and access the Services described in the applicable Service Order for your internal business purposes during the applicable service term.

4.2 No Medical Advice

Medical Disclaimer — Provider Acknowledgment Required THE SERVICES, PLATFORM, AND HOOT CONTENT ARE FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. HOOT IS NOT A LICENSED HEALTH CARE PROVIDER AND DOES NOT PRACTICE MEDICINE, NURSING, OR ANY OTHER HEALTH CARE PROFESSION. THE SERVICES DO NOT CONSTITUTE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. YOU MUST USE YOUR INDEPENDENT PROFESSIONAL MEDICAL JUDGMENT WHEN REVIEWING, APPLYING, OR ACTING UPON ANY INFORMATION PROVIDED THROUGH THE SERVICES. RELIANCE ON ANY INFORMATION IN THE SERVICES IS SOLELY AT YOUR OWN RISK. HOOT IS NOT RESPONSIBLE OR LIABLE FOR ANY DIAGNOSIS, DECISION, ASSESSMENT, OR INJURY RESULTING FROM DECISIONS BASED ON INFORMATION PROVIDED THROUGH THE SERVICES.

4.3 Account and Security

a. Authorized Representative: The person creating an account represents and warrants that they are authorized by Subscriber to create and manage the account on Subscriber’s behalf and to bind Subscriber to this Agreement.

b. Subscriber Users: You may add Subscriber Users to your account subject to any limitations in your Service Order. You are responsible and liable for each Subscriber User’s access to and use of the Services and for any breach of this Agreement by a Subscriber User.

c. Account Security: You are responsible for establishing and maintaining the confidentiality and security of account credentials. Each Subscriber User must have unique access credentials; credential sharing is prohibited. You will promptly notify Hoot at legal@hootmyopiacare.com of any unauthorized access to or use of your account or the Services. Hoot has no liability for unauthorized access caused by your acts, omissions, or breach of this Agreement.

d. Access Restrictions: The Services are available only to you and your authorized Subscriber Users. You will not permit any other person to access or use your account or the Services.

4.4 Data Backup

You are solely responsible for backing up User Data. Hoot is not responsible for backup, recovery, or loss of User Data, except to the extent caused by Hoot’s gross negligence or willful misconduct. Hoot expressly disclaims any data storage or backup obligations beyond those required by the BAA or Applicable Law.

4.5 User Data Responsibilities

You are solely responsible and liable for User Data, including the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Data provided by you, your Subscriber Users, and your End Users. Hoot does not assume responsibility to review, screen, or verify User Data for accuracy or clinical appropriateness.

4.6 End User Communications

You are solely responsible and liable for all communications with End Users through the Services and Platform, including telephone, text, fax, and email. You represent and warrant that all communications with End Users through the Services comply with Applicable Law (including HIPAA, TCPA, and state communications laws) and that you have obtained all necessary consents, authorizations, and opt-ins for such communications. You acknowledge that Hoot acts as a technology platform and communications channel and that you, as the Covered Entity, are responsible for ensuring that all patient communications comply with applicable professional and regulatory standards.

4.7 Legal Compliance

You are solely responsible and liable for compliance with all Applicable Laws related to your use of the Services, including HIPAA, TCPA, state health data privacy laws, professional licensing requirements, and anti-kickback statutes. You agree to cooperate with reasonable requests from law enforcement or governmental authorities consistent with applicable law.

4.8 Age Requirement

You must be 18 years of age or older to create an account or use the Services. You represent and warrant that all Subscriber Users are at least 18 years of age.

4.9 Prohibited Uses

You, each Subscriber User, and each End User will not engage in any of the following prohibited activities (“Prohibited Use”):

a. Decompile, disassemble, or reverse engineer the Services or Platform, or attempt to obtain source code; b. Duplicate or create any derivative product from the Services or any component thereof; c. License, sublicense, lease, resell, or transfer the Services to any third party; d. Access the Services as a direct competitor of Hoot, or access the Services for competitive intelligence or benchmarking; e. Remove any copyright, trademark, or other proprietary notice from the Services; f. Transmit material containing viruses, malware, ransomware, or other harmful code; g. Interfere with or disrupt the integrity, performance, or security of the Services; h. Attempt to bypass, exploit, defeat, or disable any security limitation on the Services; i. Conduct any denial of service (DoS) attack or attempt to disable or overload the Services; j. Attempt to access the Services by automated means (bots, scrapers) without Hoot’s prior written consent; k. Attempt to gain unauthorized access to the Services, computer systems, or related networks; l. Create a false identity or misrepresent the origin of any data or communications; m. Use the Services in violation of any Applicable Law, including healthcare fraud and abuse laws, anti-kickback statutes, or false claims acts; or n. Interfere with any other user’s use and enjoyment of the Services.

4.10 Export Restrictions

This Agreement is subject to applicable US and international export control laws, including the US Export Administration Regulations, the US International Traffic in Arms Regulations, and economic sanctions programs administered by the US Office of Foreign Assets Control (“Trade Restrictions”). You are solely responsible for compliance with Trade Restrictions in connection with your use of the Services, including your transfer and processing of User Data and the location in which any of the foregoing occur. This obligation survives termination or expiration of this Agreement.

4.11 Account Suspension; Removal of User Data

Hoot may suspend your account, or suspend any Subscriber User’s or End User’s access to the Services, immediately if Hoot reasonably believes: (a) a material breach of this Agreement or the End User Terms of Use has occurred; (b) the Services are being used in a manner that threatens their security, integrity, or reliability; (c) unauthorized access or fraud has occurred related to your account; (d) information in your account is materially untrue or inaccurate; or (e) continued provision of the Services creates legal, regulatory, or compliance risk for Hoot or you. Hoot will provide written notice of any suspension to you at the email address on file as soon as reasonably practicable.

4.12 Changes to the Services

Hoot may update or modify features and functions of the Services from time to time. Hoot will provide reasonable advance notice of material reductions in core functionality. Hoot will not materially decrease the overall functionality of the Services you have ordered without providing you at least 30 days’ prior written notice and, if you object, the right to terminate the applicable Service Order without penalty upon written notice within such 30-day period.

4.13 Beta Features

Hoot may make beta versions or features available to you, which you may use at your sole discretion. Beta features are provided “as is” without warranty and may contain bugs, errors, or other problems. Hoot may discontinue beta features at any time without notice and with no obligation to make them generally available.

  1. Fees, Payment, and Subscription Terms

5.1 Fees

You agree to pay the fees for the Services stated in the applicable Service Order and all additional fees and charges incurred during your use of the Services, including set-up fees, payment processor fees, and professional services fees. All fees are stated in US dollars and are exclusive of taxes.

5.2 Taxes

You agree to pay all sales, use, value-added, and other taxes and governmental fees imposed on Hoot’s provision of the Services to you, other than taxes based on Hoot’s net income. If you are tax-exempt, you must provide Hoot with a valid exemption certificate before Hoot has any obligation to waive applicable taxes.

5.3 Payment Terms

Fees, taxes, and other charges will be invoiced in US dollars. Payments are due in advance on the date or recurring interval dates stated in the applicable Service Order. All payments are non-refundable except as expressly provided in Section 5.6 (dispute resolution). Late payments will accrue interest at the rate of 1.5% per month (or the highest rate permissible under Applicable Law, if lower) from the date due until paid, except for amounts properly disputed in accordance with Section 5.5. If Hoot uses a third-party payment processor, payments will additionally be governed by that processor’s terms and privacy policy.

5.4 Subscription Auto-Renewal; Non-Cancellable Terms

Unless otherwise stated in the applicable Service Order, the initial service term is one (1) year (the “Initial Service Term”), which automatically renews for successive one-year periods (each a “Renewal Service Term”) on the anniversary of the Initial Service Term start date, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current service term. Fees for each Renewal Service Term will be Hoot’s then-standard fees for the applicable Services. Subscriptions cannot be cancelled prior to the end of a service term. Cancellation requests made more than 30 days before the end of a service term take effect on the last day of that service term, and you remain obligated to pay all amounts due through the end of the term regardless of whether you continue to use the Services. All subscription fees are non-refundable.

5.5 Invoice and Payment Disputes

You must notify Hoot in writing at billing@hootmyopiacare.com within sixty (60) days of the invoice date (or, if no invoice is issued, within 60 days of the payment date) if you dispute any fees, taxes, or other charges. Disputes not raised within this period are waived. Hoot will not charge interest on amounts properly disputed in good faith during the pendency of the dispute. The parties will use good faith efforts to resolve payment disputes within 30 days of notice.

5.6 Price Changes

Hoot will provide at least sixty (60) days’ prior written notice of any increase in fees applicable to a Renewal Service Term. If you do not accept a fee increase, you may elect not to renew by providing written notice before the end of the then-current service term.

  1. Personal Information and Protected Health Information

6.1 Personal Information

You agree that Hoot may use, disclose, and maintain personal information in accordance with Hoot’s Privacy Policy (gethoot.com/privacy-policy/) and any amendments thereto. You represent and warrant that you have complied with all Applicable Law and obtained all necessary authority, consents, and authorizations to allow Hoot to collect and process personal information from you, your Subscriber Users, and your End Users to provide the Services.

6.2 Children’s Personal Information

Hoot does not collect personal information directly from children. If you, your Subscriber Users, or your End Users provide personal information of children through the Services, you represent and warrant that you have complied with all Applicable Laws (including COPPA, 15 U.S.C. § 6501 et seq.) and obtained all necessary authority and consents — including from parents or legal guardians — to allow Hoot to collect and process such personal information.

6.3 Protected Health Information

Hoot may collect and use PHI only as permitted by the BAA and HIPAA. You represent and warrant that you have complied with all Applicable Law and obtained all necessary authority, consents, and HIPAA authorizations to allow Hoot to collect and process PHI from you, your Subscriber Users, and your End Users. As a Covered Entity, you are responsible for ensuring that all required HIPAA patient authorizations (including authorizations for marketing, data sale, and other non-treatment uses) are obtained from patients before directing Hoot to make any such use of PHI.

6.4 De-identified and Anonymized Data

You acknowledge and agree that De-identified Data is not personal information and is not PHI, and that HIPAA restrictions and the personal information provisions of the Privacy Policy do not apply to De-identified Data, even if it was created or derived from personal information or PHI. Hoot owns all De-identified Data it creates and may use, license, sell, or commercialize such data without restriction.

6.5 End User Requests and Notices

You are responsible for compliance with Applicable Law related to personal information and PHI with respect to End Users, including responding to End User access, amendment, deletion, and accounting requests (“Requests”) and providing required notifications including breach notifications. If Hoot receives a Request directly from an End User, Hoot will notify you of the Request and direct the End User to make the Request directly to you. To the extent Hoot assists you with compliance obligations under Applicable Law related to personal information and PHI, you shall reimburse Hoot for time spent at Hoot’s then-standard professional services rate and reasonable out-of-pocket costs incurred.

6.6 Data Security Obligations

Hoot maintains administrative, physical, and technical safeguards to protect PHI and personal information consistent with the HIPAA Security Rule (45 C.F.R. Part 164, Subpart C) and applicable industry standards, as further described in the BAA and Hoot’s Privacy Policy. You are responsible for maintaining appropriate security controls on your systems, devices, and access credentials used to access the Services, and for promptly notifying Hoot of any actual or suspected security incident involving your account.

  1. Representations, Warranties, and Disclaimer

7.1 Subscriber’s Representations and Warranties

By entering into this Agreement, you represent and warrant that:

a. Authority: You have validly entered into this Agreement and have the legal power and authority to do so and to bind Subscriber;

b. User Data Rights: You have all rights necessary to grant the licenses to User Data described in this Agreement; the User Data is accurate and complete; you have obtained User Data lawfully; the User Data does not violate any Applicable Law or any third party’s rights; you have provided all required notices, obtained all necessary consents, and complied with all Applicable Law to allow Hoot to collect and use User Data as provided in this Agreement; and Hoot may exercise its rights in User Data without cost or liability to any third party;

c. No Sanctions: You and your Subscriber Users are not listed on any government prohibited, denied, or unverified-party, sanctions, debarment, or exclusion list (“Sanctions Lists”). If you, any Subscriber User, or any End User is placed on any Sanctions List, you will immediately notify Hoot and discontinue use of the Services by such party;

d. Lawful PHI: All PHI you provide or make available to Hoot was obtained lawfully and in compliance with HIPAA and all other Applicable Law; and

e. Communications Compliance: All communications conducted with End Users through the Services comply with Applicable Law, including HIPAA, TCPA, and applicable state communications laws, and you have obtained all required consents and authorizations for such communications.

7.2 Hoot’s Representations and Warranties

Hoot represents and warrants that: (a) it has validly entered into this Agreement and has the legal power and authority to do so; (b) it has all rights necessary to grant the licenses to the Services described in this Agreement; and (c) it will maintain HIPAA compliance with respect to PHI in accordance with the BAA.

7.3 Disclaimer of Warranties

Disclaimer of Warranties — Please Read EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, PLATFORM, HOOT CONTENT, AI CONTENT, AND ALL OTHER MATERIALS, DATA, SOFTWARE, PRODUCTS, AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” HOOT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERFERENCE, ABSENCE OF LATENT OR PATENT DEFECTS, AND SECURITY OF DATA. HOOT DOES NOT WARRANT THAT THE SERVICES WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, OR ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. AI CONTENT MAY CONTAIN INACCURACIES AND SHOULD NOT BE RELIED UPON AS A SUBSTITUTE FOR INDEPENDENT PROFESSIONAL MEDICAL JUDGMENT.

  1. Indemnification

8.1 Subscriber’s Indemnification of Hoot

You agree to defend, indemnify, and hold harmless Hoot, its affiliates, and their respective directors, officers, employees, agents, licensors, and suppliers from and against any and all claims, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to: (a) your use of the Services, Platform, or Hoot Content; (b) any breach of this Agreement by you, any Subscriber User, or any End User; (c) violation of any Applicable Law by you, any Subscriber User, or any End User; (d) any infringement of third-party rights by you, any Subscriber User, or any End User; (e) any inaccuracy, falsity, or unlawfulness of User Data; or (f) your independent medical or clinical decisions made in connection with or based upon information provided through the Services.

8.2 Hoot’s Indemnification of Subscriber

Hoot agrees to defend, indemnify, and hold harmless Subscriber and its officers, directors, and employees from and against any third-party claims, damages, losses, and expenses (including reasonable attorneys’ fees) arising directly from: (a) Hoot’s material breach of its HIPAA obligations under the BAA caused by Hoot’s gross negligence or willful misconduct; or (b) any third-party claim that the Services, as provided by Hoot, infringe any valid US patent, copyright, trademark, or trade secret, provided that Subscriber: (i) promptly notifies Hoot of the claim in writing; (ii) grants Hoot sole control over the defense and settlement; and (iii) provides reasonable cooperation. This indemnification does not apply to the extent any claim arises from Subscriber’s modification of the Services, combination with third-party products, or use in violation of this Agreement. This Section 8.2 states Hoot’s entire liability for IP infringement and Hoot’s entire indemnification obligation.

  1. Limitations of Liability

Important — Please Read These Limitations Carefully These limitations of liability are an essential and bargained-for part of this Agreement and reflect the allocation of risk between you and Hoot. Without these limitations, the terms of this Agreement, including the economic terms, would be substantially different.

9.1 Exclusion of Consequential Damages

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT WITH RESPECT TO (A) A PARTY’S INDEMNIFICATION OBLIGATIONS, (B) HOOT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH PHI, OR (C) BREACH OF CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOST PROFITS, LOSS OF DATA, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 Specific Damage Exclusions

EXCEPT TO THE EXTENT CAUSED BY HOOT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, HOOT HAS NO LIABILITY FOR: (A) UNAUTHORIZED ACCESS TO, LOSS, OR THEFT OF YOUR ACCOUNT, INFORMATION, OR DATA CAUSED BY YOUR ACTS OR OMISSIONS; (B) LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, OR BUSINESS INTERRUPTION; (C) COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; OR (D) PERSONAL INJURY ARISING FROM YOUR INDEPENDENT CLINICAL DECISIONS.

9.3 Force Majeure

Hoot is not liable for delays, failures, or damages caused by circumstances beyond Hoot’s reasonable control, including acts of God, natural disasters, war, terrorism, labor disputes, government actions, pandemics, widespread internet or cloud infrastructure outages, or criminal activity by unrelated third parties; provided that Hoot uses commercially reasonable efforts to mitigate the impact of such events and resumes performance as soon as practicable. Hoot will notify you promptly of any force majeure event materially affecting the Services.

9.4 Aggregate Liability Cap

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT WITH RESPECT TO (A) A PARTY’S INDEMNIFICATION OBLIGATIONS, (B) HOOT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH PHI OR A MATERIAL HIPAA BREACH, OR (C) BREACH OF CONFIDENTIALITY OBLIGATIONS, HOOT’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY SUBSCRIBER TO HOOT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR, IF NO FEES WERE PAID IN SUCH PERIOD, ONE THOUSAND DOLLARS ($1,000). THIS CAP APPLIES IN THE AGGREGATE ACROSS ALL CLAIMS, REGARDLESS OF THE FORM OF ACTION.

9.5 Statute of Limitations

To the fullest extent permitted by Applicable Law, all claims arising out of or related to this Agreement must be brought within two (2) years of the date the claim arises, regardless of any longer limitations period provided by Applicable Law, except that this limitation does not apply to HIPAA enforcement actions, which are governed by the applicable statutory limitations period.

  1. Disputes; Binding Arbitration

Arbitration Agreement — Please Read Carefully This section contains a binding arbitration agreement and class action waiver that affect your legal rights. Unless you opt out within 30 days of entering your Service Order, most disputes will be resolved by binding individual arbitration, not in court.

10.1 Good Faith Negotiation

Before initiating any arbitration or court proceeding, you must first send a written description of your claim to Hoot at legal@hootmyopiacare.com and allow Hoot 60 days to attempt to resolve the claim in good faith. You may not commence arbitration or any legal proceeding until this 60-day period has elapsed and good-faith efforts have been made.

10.2 Binding Arbitration

EXCEPT AS PROVIDED BELOW, ANY AND ALL CLAIMS OR DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE BAA, OR THE SERVICES, INCLUDING BILLING DISPUTES, WILL BE RESOLVED BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT. THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET SEQ.) GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION AGREEMENT. THERE IS NO JUDGE OR JURY IN ARBITRATION. THE ARBITRATOR MAY AWARD THE SAME DAMAGES AND RELIEF AS A COURT, INCLUDING ATTORNEYS’ FEES.

10.3 Right to Opt Out

You Have the Right to Opt Out of Arbitration You may opt out of this arbitration agreement within 30 days of the date you entered into your Service Order (the “Opt-Out Deadline”). You must opt out separately for each Service Order. To opt out, send a written notice to legal@hootmyopiacare.com clearly stating that you wish to opt out of the arbitration agreement in this Agreement, identifying the applicable Service Order. Opt-out requests received after the Opt-Out Deadline for a given Service Order will not be valid with respect to that Service Order.

10.4 Arbitration Procedures

Arbitration will be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules in effect at the time the arbitration is commenced, available at www.adr.org or 1-800-778-7879. To begin arbitration, send a written request to Hoot’s registered agent at Hoot Health, Inc., 3495 US Highway 1, STE 34 #1126, Princeton, NJ 08540, and to the AAA. A single arbitrator will be selected using AAA’s standard appointment procedure. Payment of filing, administration, and arbitrator fees will be governed by the AAA’s Commercial Arbitration Rules. For claims under $75,000 where you provided the required pre-arbitration notice and negotiated in good faith, if you are the prevailing party, you may recover reasonable attorneys’ fees and costs. If Hoot is the prevailing party, it may seek reimbursement of attorneys’ fees and costs unless prohibited by Applicable Law.

10.5 Class Action Waiver

YOU AND HOOT EACH AGREE THAT ALL PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS, NOT AS A CLASS, COLLECTIVE, REPRESENTATIVE, MASS, OR CONSOLIDATED ACTION.

Right to Opt Out of Class Action Waiver You may opt out of the class action waiver before the Opt-Out Deadline stated in Section 10.3, separately for each Service Order. To opt out, send a written notice to legal@hootmyopiacare.com clearly stating that you wish to opt out of the class action waiver.

10.6 Injunctive Relief

Nothing in this Section 10 prevents either party from seeking emergency injunctive or other equitable relief in a court of competent jurisdiction to prevent immediate and irreparable harm, including in connection with any breach of Sections 3, 4, 6, or 7 of this Agreement. Such equitable relief is in addition to all other remedies available at law or in arbitration.

10.7 Jury Trial Waiver

IF A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND HOOT EACH WAIVE ANY RIGHT TO A JURY TRIAL.

  1. Term, Termination, and Survival

11.1 Term

This Agreement commences on the date you enter into your first Service Order and continues until terminated in accordance with Section 11.2.

11.2 Termination

a. End of Service Order: This Agreement terminates upon the expiration, cancellation, or termination of all outstanding Service Orders. See Section 5.4 regarding automatic renewal and non-cancellability.

b. Material Breach: Either party may terminate this Agreement (including all active Service Orders) if the other party commits a material breach (including non-payment) and fails to remedy the breach within 30 days after receiving written notice. Non-payment is a material breach.

c. Insolvency: Either party may terminate this Agreement immediately upon written notice in the event of the other party’s dissolution, liquidation, assignment for the benefit of creditors, or commencement of voluntary or involuntary bankruptcy or receivership proceedings.

d. Regulatory or Legal Requirement: Either party may terminate this Agreement upon written notice if continued performance would cause it to violate Applicable Law, including HIPAA or applicable professional licensing requirements.

e. Suspension: Hoot may suspend your access to the Services as permitted by Section 4.11 without terminating this Agreement.

11.3 Effect of Termination

Upon termination of this Agreement: (a) you and all Subscriber Users and End Users will immediately discontinue access to and use of the Services; (b) you will promptly pay all outstanding amounts due; (c) each party will return or certify the destruction of the other party’s confidential information, subject to applicable legal retention obligations; and (d) Hoot’s obligations under the BAA with respect to PHI shall govern the return, retention, and destruction of PHI.

With respect to User Data that is not PHI: Hoot will make User Data available for download for 30 days following termination, after which Hoot has the right to delete User Data with no liability. You may request a copy of User Data within such 30-day period and Hoot will use commercially reasonable efforts to provide it; Hoot may charge a reasonable fee for data export services. Hoot may retain User Data as necessary for legal compliance, record retention, or to enforce its rights, subject to the use restrictions of this Agreement and the BAA.

11.4 Survival

The following provisions survive termination or expiration of this Agreement: Sections 3 (IP Rights), 5 (fees and payment obligations accrued prior to termination), 6 (Personal Information and PHI obligations), 7 (Representations and Warranty Disclaimer), 8 (Indemnification), 9 (Limitations of Liability), 10 (Disputes), 11.3 (Effect of Termination), 11.4 (Survival), and 13 (General).

  1. SMS Messaging Program Terms

12.1 Program Description

Hoot operates an SMS messaging program (“SMS Program”) that enables Subscribers to send educational health information, appointment reminders, wellness updates, treatment follow-ups, and other health care-related messages to patients who have affirmatively opted in to receive such messages.

12.2 Subscriber Responsibilities; TCPA Compliance

You are solely responsible for compliance with the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and applicable FCC regulations in connection with your use of the SMS Program. This includes:

  • Obtaining and documenting express written consent from each patient before sending marketing text messages via the SMS Program;
  • Ensuring all consent records are maintained for at least 4 years;
  • Honoring opt-out requests (STOP) promptly and within the timeframes required by applicable law;
  • Providing patients with clear HELP instructions; and
  • Ensuring message content complies with HIPAA and all other Applicable Law.

You agree to indemnify and hold harmless Hoot from and against any TCPA claims, penalties, or damages arising from your use of the SMS Program, including any failure to obtain required patient consent.

12.3 Patient Opt-In

Participation in the SMS Program is voluntary for patients. Patients must actively opt in by providing written consent at their health care provider’s office or through a compliant digital consent mechanism. By opting in, patients agree to receive SMS messages from Hoot on behalf of their health care provider.

12.4 Message Frequency

Patients who opt in may receive up to 3 text messages per month. Message frequency may vary based on the patient’s treatment plan and health care needs. You must disclose message frequency to patients before or at the time of consent.

12.5 Message Content

SMS messages may include educational health information, appointment reminders, treatment follow-ups, wellness tips, and health care updates. All message content must comply with HIPAA’s minimum necessary standard and must not include sensitive PHI beyond what is necessary for the specific communication purpose.

12.6 Message Rates

Hoot does not charge patients for SMS messages. Patients’ standard message and data rates from their mobile carrier may apply. You must disclose carrier rate applicability to patients before or at the time of consent.

12.7 Opt-Out and Help Instructions

Patients may opt out of receiving SMS messages at any time by replying STOP to any message. Upon receipt of a STOP request, Hoot will cease sending SMS messages to that number and send a single confirmation message. Patients may request help or program information by replying HELP.

12.8 Data Use and Sharing

Phone numbers and message content are handled in accordance with Hoot’s Privacy Policy and the BAA. Patient phone numbers and SMS consent records will not be shared with third parties for their own marketing, advertising, or analytics purposes. Such information may only be shared with SMS aggregators and messaging providers for the purpose of delivering and managing messaging services.

12.9 Carrier Liability Disclaimer

Hoot and participating health care providers are not liable for delayed or undelivered messages caused by mobile carriers, network issues, or other factors outside Hoot’s reasonable control.

12.10 Program Changes

Hoot reserves the right to modify or discontinue the SMS Program at any time. Hoot will provide at least 30 days’ advance written notice to Subscribers of any material change to the SMS Program affecting patient-facing communications.

  1. General

13.1 Choice of Law

This Agreement is governed by the Federal Arbitration Act (with respect to the arbitration provisions of Section 10), applicable federal law, and the laws of the State of New Jersey, without regard to conflicts-of-laws principles. Foreign laws do not apply. Arbitration or court proceedings must be brought in New Jersey, except that either party may seek emergency injunctive relief in any court of competent jurisdiction.

13.2 Notices

General notices may be delivered to Hoot by email to support@gethoot.com or by postal mail to Hoot Health, Inc., 3495 US Highway 1, STE 34 #1126, Princeton, NJ 08540. Legal notices (including arbitration demands, breach notices, and termination notices) must be sent to legal@hootmyopiacare.com and to Hoot’s registered agent at the postal address above. Privacy and HIPAA-related notices must be sent to privacy@hootmyopiacare.com. Hoot may deliver notices to you via email, mail, or electronically using the contact information in your Service Order or account, or by posting on the Platform. Electronic notices are deemed delivered when sent or posted. Postal notices are deemed delivered 3 days after mailing. Courier notices are deemed delivered upon confirmed receipt.

13.3 E-Sign Consent

You agree and consent to receive certain communications, notices, agreements, billing statements, and disclosures (“Communications”) from Hoot electronically, rather than in paper form, and to the use of electronic signatures, in accordance with the E-SIGN Act (15 U.S.C. § 7001 et seq.) and applicable state electronic signature laws. You represent that you have the ability to access and retain electronic Communications. You may withdraw E-Sign consent by written notice to support@gethoot.com; withdrawal of E-Sign consent may result in termination of your access to the Services.

13.4 Platform Materials

Hoot Content and other Platform materials may contain technical, typographical, or other errors. Hoot does not warrant that Hoot Content or Platform materials are accurate, complete, or current. Hoot may update or correct materials at any time without notice. AI Content is subject to inherent limitations and may not reflect the most current clinical evidence.

13.5 Third-Party Connections

The Services may include integrations, links, or connections to third-party websites, applications, or services. Such inclusion does not imply Hoot’s endorsement or review of third-party content. You proceed to any third-party website or service at your own risk. Hoot is not responsible for third-party services, products, statements, or actions. You must review and comply with applicable third-party terms of service and privacy policies.

13.6 Third-Party Beneficiaries

Hoot’s third-party providers, licensors, suppliers, and affiliates are third-party beneficiaries of this Agreement solely to the extent necessary to enforce protections afforded to them herein. There are no other third-party beneficiaries. All rights and benefits under this Agreement from Hoot are intended solely for Subscriber as the original purchaser of the Services.

13.7 Independent Contractors

The relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship, or franchise. The parties are independent contractors.

13.8 Assignment

Neither party may assign this Agreement to any third party without the prior written consent of the other party, except that either party may assign this Agreement without consent: (a) to an affiliate; or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that the assignee assumes all of the assigning party’s obligations under this Agreement in writing. Any permitted assignment does not relieve the assigning party of its obligations unless agreed in writing by the non-assigning party. Any attempted assignment in violation of this provision is null and void.

13.9 Amendment

Hoot may amend these Terms of Service at any time. For material changes, Hoot will provide at least 30 days’ prior written notice by email to your registered address or by in-Service notification. Your continued use of the Services after the effective date of any amendment constitutes your acceptance of the amended Terms of Service. Non-material changes may be made without advance notice and take effect upon posting.

13.10 Waiver

No provision of this Agreement may be waived except in a writing signed by both parties. Hoot’s failure to insist on or enforce strict performance of any provision or right is not a waiver of that provision or right.

13.11 Severability

If any provision of this Agreement is held invalid, illegal, or unenforceable, that provision will be modified to the minimum extent necessary to make it valid and enforceable. If modification is not possible, the provision will be severed. The remaining provisions remain in full force and effect.

13.12 Entire Agreement

This Agreement, together with all Service Orders, the separately executed BAA, and any applicable Service Level Agreements, constitutes the entire agreement between the parties regarding the Services and supersedes all prior negotiations, representations, agreements, and understandings. You may not rely on any other documents, statements on the Platform, or statements by any Hoot representative or agent outside the four corners of this Agreement.