Daymark Text Message Program

Last Updated 2/20/2025

IMPORTANT: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CERTAIN CIRCUMSTANCES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS.

Daymark Health Inc., its affiliates and subsidiaries, and associated Daymark Providers (collectively, “Daymark Health,” “we,” “us,” or “our”) provide Daymark Patients (“Patients”) with the ability to receive automated Short Message Service (“SMS”) or and Multimedia Message Service (“MMS”) text messages (collectively referred to as "text messages" or “texts”) (the “Daymark Text Program, or Text Program”). These additional terms, known as the Daymark Text Agreement (“Agreement”) governs your use of the Daymark Text Program.

“You” and “your” refer to the Patients reading this Agreement.

1.        Legally Binding Agreement & Opt-In

Please read this Agreement carefully. By completing the Daymark Health SMS Opt-In and agreeing to receive text messages by or on behalf of Daymark, or by otherwise providing or agreeing for your phone number to be provided on your behalf to Daymark (“Opting In”), you agree to these terms governing the Text Program, as well as Daymark’s Terms of Use, Privacy Policy, and Notice of Privacy Practices, which are hereby incorporated into this Agreement and available by visiting www.daymarkhealth.com.

This Agreement constitutes a legally binding contract between you and Daymark. By enrolling in the Daymark Text Program, you acknowledge that you are legally competent and agree to be bound by these terms. If you do not consent to these terms, you must refrain from participation or discontinue use of the Text Program immediately. Continued access or use constitutes acceptance of this Agreement.

2.        Overview of the Daymark Text Program

Daymark Health sends various text messages to potential and current patients when we receive a referral from your healthcare provider or your health insurance company. Your ability to receive other Daymark Health benefits is not conditioned on your participation in the Text Program, however, you participation in the program allows Daymark Providers to offer our most accessible care and ongoing support during your cancer journey.

Daymark text message include, but are not limited to, messages that: (i) check on your wellbeing, (ii) follow up with you on your care, or if you are or might be experiencing concerning symptoms, (iii) provide limited medical guidance and support, (iv) remind you of appointments, (v) notify you about medical orders or prescriptions from your healthcare providers, (vi) communicate results of certain lab or other diagnostic orders and results, (vii) provide you with information about additional included Daymark Health benefits, (viii) help to coordinate your care with other providers, or (ix) other transactional or healthcare related messages including surveys and feedback about Daymark’s Services. Occasionally, Daymark may also send you certain marketing related text messages if you have expressly opted-in to receive marketing messages.

If you need help during your use of the Text Program, you may reply ‘HELP’ to any message that you receive from Daymark, contact us at upport@daymarkhealth.com, or call us at 866-799-7855.

If you do not want, or no longer wish to receive these text messages, then you may opt-out of the Text Program at any time by replying STOP to any message, contacting us at support@daymarkhealth.com, or calling us at 866-799-7855.

3.        Requirements to Participate and Use of the Daymark Text Program

When you opt-in to the Daymark Text Program, you represent and warrant that you are of legal age to form a binding agreement with Daymark, meet all of the foregoing eligibility requirements, have validly entered into this Agreement, and agree to be bound by all terms and conditions set forth in this Agreement.

By opting-in to the Text Program, you understand and expressly consent to Daymark sending and receiving text messages that are not encrypted, which means that it is possible the communications may be read or intercepted by third parties. Furthermore, you represent and understand that:

  1. you are the owner or an authorized user of the mobile device and phone number you used in order to initiate the Text Program enrollment;

  2. you are at least eighteen (18) years old;

  3. you are solely responsible for updating your enrolled phone number, Daymark is not liable for any texts, or costs related thereto, that occur because you did not opt out the Daymark Text Program before you changed your phone number;

  4. you are authorized to approve any applicable charges in connection with the text messages you send to and receive from Daymark;

  5. you agree to only use the Daymark Text Program from the United States, and will not attempt to use or participate in the program from outside of the United States;

  6. you will not use or participate in the Daymark Text Program for any unauthorized purposes or in any manner that violates applicable laws or regulations;

  7. you will be responsible for all messaging and other data charges that may apply for any text messages sent by you to Daymark, or from Daymark to you;

  8. neither Daymark, nor your or Daymark’s mobile carriers, will be liable for delayed or undelivered messages;

  9. you grant Daymark express permission to send automated text messages, including those sent by automatic telephone dialing technology, to the enrolled phone number through your wireless carrier until you revoke your permission to receive the text messages;

  10. you are responsible for all text message sent from your enrolled phone number to Daymark, including the use of your phone number by others;

  11. you are requesting to receive text messages even if you may be enrolled on a “Do not call registry” and your express request overrides your inclusion on the registry; and

  12. you may not use the Text Program to report or receive care with regards to any medical emergency.

IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY OR MENTAL HEALTH CRISIS, CALL 911 OR GO TO THE NEAREST EMERGENCY ROOM. DO NOT USE THE TEXT PROGRAM FOR EMERGENCY CARE.

If you do not meet all of these requirements, then we do not agree to your use of the Daymark Text Program, and you must not use the Daymark Text Program. If you have already started using the Daymark Text Program, you must immediately stop participating in the Daymark Text Program. If you have questions specific to your text or data plan, please contact your wireless provider.

4.         How to Opt-Out of the Text Program

You may choose to stop receiving text messages from the Daymark Text Program at any time. To stop receiving texts from Daymark and opt-out of the Daymark Text Program, text STOP to the last message you received from Daymark. Please note, if you have opted-in to receive more than one type of text message from Daymark, you will need to opt-out of each type of message in the Daymark Text Program to which you are enrolled. Until you have done so, you may continue to receive certain types of text messages from Daymark that you have opted-in to receive but have not unenrolled from. We may send you an additional text message confirming that your choice to opt-out has been recorded.

If you do not want, or no longer wish to receive any of Daymark’s text messages, then you may opt-out of the Text Program contacting us at support@daymarkhealth.com, or calling us at 866-799-7855.

5. Lawful Use of Daymark Text Program

You agree that your participation in the Daymark Text Program will only be for lawful purposes and in accordance with this Agreement. It is your responsibility to determine whether your participation in the Daymark Text Program is lawful, and you must comply with all applicable laws while participating in the Daymark Text Program. You are not permitted to participate in the Daymark Text Program for any illegal purpose. Your participation in and receipt of text messages through the Daymark Text Program is permitted on a temporary basis and is conditioned on your adherence to the terms of this Agreement.

6. Unauthorized Use or Misuse of the Daymark Text Program

You agree that your right to participate in and receive of text messages through the Daymark Text Program will cease immediately upon your violation of any of the terms set forth in this Agreement or upon any unauthorized use or misuse of the Daymark Text Program or Daymark Services, and that Daymark has complete discretion to terminate your participation in and receipt of text messages through the Daymark Text Program without further notice if you violate any terms or prohibitions set forth in this Agreement.

Unauthorized use and misuse of the Daymark Text Program is strictly prohibited, and, depending on the circumstances, may subject you to a civil claim for damages and criminal prosecution. Daymark reserves the right to report any breach of this Agreement or unauthorized use or misuse of the Daymark Text Program to law enforcement authorities.

7. Charges for Messages and Data Usage

Message and data rates may apply. Daymark does not charge a fee for text messages, but wireless carrier charges may apply and be payable by you to your wireless carrier. To verify potential charges, please contact your wireless carrier. By opting-in to the Daymark Text Program, you approve any such charges from your wireless carrier. Charges for text messages or data usage may appear on your mobile phone bill or be deducted from your prepaid balance by your wireless carrier.

8. Text Message Delivery and Frequency

Daymark does not guarantee the successful delivery of text messages by your wireless carrier. Text messages may not be delivered if the mobile device is not in range of a transmission site, or if sufficient network capacity is not available at a particular time. Even within a coverage area, factors beyond the control of wireless carriers may interfere with message delivery, including terrain, proximity to buildings, foliage, weather, and the text message recipient’s equipment/mobile device.

The number of text messages you receive from the Daymark Text Program may vary. By opting-in to the Daymark Text Program, you consent to Daymark sending you multiple, recurring text messages no more frequently than two times per day.

9. Ownership & License to Use the Text Program

You understand and agree that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets in the Text Program and its content are owned by Daymark Health, or Daymark Providers and is protected by U.S. and international copyright laws. The compilation of the Daymark Text Program is also the exclusive property of Daymark Health and is protected by U.S. and international copyright laws. This Agreement and your use of Text Program do not give you any rights, title or interest in or to any intellectual property rights, except for the limited access rights expressed in this Agreement. Daymark Health and Daymark Providers reserve all rights not expressly granted herein.  Any unauthorized use of the Text Program terminates the licenses granted by Daymark Health pursuant to this Agreement.

10. Dispute Resolution and Arbitration

Dispute Resolution (including Arbitration, Class Action Waiver and Time to Initiate Action)

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

  1. Initial Dispute Resolution Period: Our support team is available at support@daymarkhealth.com to address any concerns you may have regarding the Text Program. Most concerns are quickly resolved in this manner. In an effort to accelerate resolution and reduce the cost of any Dispute (defined below) between us, you and we agree to first attempt to negotiate any Dispute informally for at least sixty (60) days before either party initiates any arbitration or court proceeding (the “Initial Dispute Resolution Period”). That period begins upon receipt of written notice from the party raising the Dispute. If we have a dispute with you, we will send the notice of that Dispute to the email address you have provided to us. If you have a dispute with us, you agree to send us a written notice by email to: legal@daymarkhealth.com. A notice of Dispute will not be valid, and will not start the Initial Dispute Resolution Period, and will not allow you or us to later initiate a lawsuit or arbitration, unless it contains all of the information required by this paragraph: (a) subject line reading: “Notice of Dispute”; (b) description of the nature of the claim or dispute and the underlying facts; (c) date upon which the Dispute arose; (d) the specific relief sought; and (e) name, email address, and physical mailing address of the party seeking relief. The Initial Dispute Resolution Period must include a conference between you and us to attempt to informally resolve any Dispute in good faith. You will personally appear at the conference telephonically or via videoconference; if you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same conference unless all parties agree. Compliance with this informal dispute resolution process is mandatory and a condition precedent to initiating an arbitration or litigation. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph. If either party violates this Initial Dispute Resolution Period paragraph, a court of competent jurisdiction has the authority to enjoin the prosecution of the arbitration or court proceeding, and, unless prohibited by law, the arbitration provider shall neither accept nor administer any such arbitration nor assess fees in connection with such arbitration.

  2. Scope: The parties acknowledge that Agreement evidences a transaction involving interstate commerce. Any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). You and we agree that any dispute, claim or controversy between you and Daymark Health asserted after the effective date of this Agreement, including but not limited to all disputes arising out of this Agreement or your use of the Text Program (each, a “Dispute”) shall be finally settled by binding arbitration except as expressly excluded below in the Section titled “Exceptions to Binding Arbitration.”

  3. Binding Arbitration: If you and we do not reach an agreement to resolve the Dispute following the Initial Dispute Resolution Period (and including the conference of the parties provided in the preceding paragraph), you or we may commence an arbitration proceeding. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) and in accordance with the Expedited Procedures in those Rules, which are available at www.jamsadr.com, unless it is a Mass Arbitration before NAM, as defined below. If, for any reason, JAMS is unable to provide the arbitration, then except as otherwise stated below, you or we may file a Dispute with any national arbitration company that handles consumer arbitrations following procedures that are substantially similar to the JAMS Expedited Procedures in the JAMS Comprehensive Arbitration Rules.

    1. Process: In order to initiate arbitration following the conclusion of the Initial Dispute Resolution Period, a party must provide the other party with a written demand for arbitration and file the demand with the applicable arbitration provider. A party initiating an arbitration against Daymark Health must send the written demand for arbitration to Daymark Health, Inc., ATTN: Legal Counsel, 701 E Cathedral Rd Ste 45 #3076 Philadelphia, PA 19128 By signing the demand for arbitration, the party and its counsel certifies to the best of the party’s and counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that (i) the demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (iv) the party has complied with the Initial Dispute Resolution Period, including participation in an in-person conference, as described above. The arbitrator shall be authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or any applicable state law for either party’s violation of this requirement.

    2. Location & Hearing: If you are a resident of the United States, then the arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If you are not a resident of the United States, then the arbitration hearing will be held in Philadelphia County, Pennsylvania, United States, or another mutually agreed location. Where no disclosed claims or counterclaims exceed $25,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Daymark Health may attend remotely, unless the arbitrator requires otherwise. The language of the arbitration will be English.

    3. Arbitrator’s Decision: The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law. The decision of the arbitrator shall be final and binding on you and us, and any award of the arbitrator may be entered in any court of competent jurisdiction. The arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration. The arbitrator has authority to decide all issues of validity, enforceability, or arbitrability. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity.

    4. Fees: Your and our right to recover attorneys’ fees, costs and arbitration fees shall be governed by the laws that apply to the parties’ Dispute, as well as any applicable arbitration rules. Either party may make a request that the arbitrator award attorneys’ fees and costs upon showing that the other party has asserted a claim, cross-claim, defense, or procedural tactic that is groundless in fact or law, brought in bad faith, for the purpose of harassment, or is otherwise frivolous, as allowed by applicable law and the JAMS Rules.

    5. Mass Arbitration Before NAM: Notwithstanding the parties’ decision to have arbitrations administered by JAMS (and subject to the exceptions otherwise set forth in the “Exceptions to Binding Arbitration” Section), if 25 or more demands for arbitration are filed relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the parties submitting the demands are the same or coordinated, you and we agree that this will constitute a “Mass Arbitration.” If a Mass Arbitration is commenced, you and we agree that it shall not be governed by JAMS Rules or administered by JAMS. Instead, a Mass Arbitration shall be administered by NAM, a nationally recognized arbitration provider, and governed by the NAM Rules in effect when the Mass Arbitration is filed, excluding any rules that permit arbitration on a class-wide basis (the “NAM Rules”), and under the rules set forth in this Agreement. The NAM Rules are available at https://namadr.com/resources/rules-fees-forms/ or by calling 1-800-358-2550. You and we agree that the Mass Arbitration shall be resolved using NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures, available at https://www.namadr.com/. Before any Mass Arbitration is filed with NAM, you and we agree to contact NAM jointly to advise that the parties intend to use NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures. The individual demands comprising the Mass Arbitration shall be submitted on NAM’s claim form(s) and as directed by NAM. You and we agree that if either party fails or refuses to commence the Mass Arbitration before NAM, you or we may seek an order from NAM compelling compliance and directing administration of the Mass Arbitration before NAM. Pending resolution of any such requests, you and we agree that all arbitrations comprising the Mass Arbitration (and any obligation to pay arbitration fees) shall be stayed. If for any reason the provisions in this Mass Arbitration Before NAM paragraph are found to be unenforceable, or if for any reason NAM declines to administer the Mass Arbitration, then the Disputes comprising the Mass Arbitration shall be administered by AAA consistent with the provisions of the Dispute Resolution Section of this Agreement.

      1. Appointment of Procedural Arbitrator in Mass Arbitration. You and we agree to cooperate in good faith to implement the Mass Arbitration process to minimize the time, filing fees, and costs of the Mass Arbitration. Those steps include, but are not limited to (1) the appointment of a procedural arbitrator to efficiently and cost-effectively manage the Mass Arbitration and to rule on proposals by the parties for the efficient and cost-effective management of the Mass Arbitration to the extent the parties cannot agree; and (2) the adoption of an expedited calendar for the arbitration proceedings.

  4. Exceptions to Binding Arbitration. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may invoke the following exceptions to arbitration:

    1. Provisional Remedies: Either party may seek provisional remedies in aid of arbitration and to enforce the Initial Dispute Resolution Period from a court of appropriate jurisdiction, subject to the forum selection provisions below.

    2. Intellectual Property and Trade Secret Disputes: Either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, piracy, moral rights violations, trademark infringement, and/or trade secret misappropriation, subject to the forum selection provisions below.

    3. Small Claims Court. Either party may seek relief in a small claims court for any individual disputes or claims within the scope of that court's jurisdiction. If an arbitration is filed, before the arbitrator is formally appointed either party can send written notice to the opposing party and the applicable arbitration provider that it wants the case decided by a small claims court, after which the arbitration provider may close the case, in which instance no filing fees shall be due or payable by either party. Any disagreement about whether a Dispute is subject to small claims court shall be decided by small claims court or a court of competent jurisdiction, not the arbitrator.

  5. Class and Collective Action Waiver. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION OR COLLECTIVE ACTION OR CLASS ARBITRATION.

  6. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Text Program must be filed within one (1) year after such claim or cause of action arose or be forever barred.

  7. Forum. For any Dispute not subject to binding arbitration, to the fullest extent allowed by law, you and we agree to submit to the exclusive jurisdiction of any state or federal court located in Philadelphia County, Pennsylvania (except for small claims court actions which may be brought in the county where you reside), and waive any jurisdictional, venue, or inconvenient forum objections to such courts.

  8. Severability. If any provision in this Dispute Resolution and Arbitration Section of this Agreement is found to be unenforceable, that provision shall be severed with the remainder of this Section of this Agreement remaining in full force and effect. The foregoing shall not apply to the prohibition against class or collective actions as provided for above. This means that if the prohibition against class or collective actions is found to be unenforceable with respect to a particular claim or request for relief and any appeals have been exhausted (or if the decision is otherwise final), then such claim or request for relief shall proceed in a court of competent jurisdiction, but it shall be stayed pending arbitration of all other claims and requests for relief.

  9. 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out by emailing us at legal@daymarkhealth.com. The notice must be sent within thirty (30) days of your first use of the Text Program, or the effective date of the first set of these additional terms containing an Arbitration and Class Action and Class Arbitration Waiver section otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt out of these arbitration provisions, we also will not be bound by them.

11.  Term & Termination

Subject to this Section, this Agreement will remain in full force and effect while you use the Text Program.  We reserve the right to terminate your access to the Text Program at any time, with or without cause, by providing you with notice through the email address we have on file. We may terminate your Account or access to the Text Program at any time if we, in our sole discretion, (a) determine that you have violated this Agreement; (b) your conduct or use of the Text Program violates applicable law or is harmful to our interests or any other User; (c) in response to requests by law enforcement or other government agencies; (d) upon discontinuance or material changes to the Text Program; (e) upon the termination of your eligibility for the Text Program as determined by your health care provider or your health plan; or (f) due to unexpected technical issues or problems beyond our control. Termination of your Account or access to the Text Program will terminate any rights and license provided to you in this Agreement; however, termination will not limit any of our other rights or remedies. Any provision that must survive in order to give proper effect to the intent and purpose of this Agreement shall survive termination.

12.  Availability and Changes to the Daymark Text Program

We are consistently updating and developing our Text Program, and at any time, we reserve the right to review or remove any part of this Text Program in our sole discretion without prior notice to you. It is your responsibility to check this Agreement from time to time when using the Text Program to determine if any changes have been made. All changes to this Agreement are effective upon posting to the Site unless applicable law requires us to provide additional notice or take other actions before such changes can become effective. If you disagree with this Agreement, your sole and exclusive remedy is to discontinue your use of the Text Program. Your continued use after a change has been posted constitutes your acceptance of the changes.

Moreover, you agree and understand that all or parts of the Text Program may not be accessible at any time, for any length of time, or for any reason. Daymark will not be liable if for any reason all or any part of the Text Program are unavailable at any time or for any period. Daymark reserves the right at any time and for any reason to modify, or temporarily or permanently discontinue, the Text Program or any portion thereof, with or without notice. You agree that Daymark shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Text Program.

13.  Disclaimer or Warranties

YOU UNDERSTAND AND EXPRESSLY AGREE THAT USE OF THE TEXT PROGRAM IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TEXT PROGRAM ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. DAYMARK HEALTH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION. 

14.  Limitation Of Liability

YOU UNDERSTAND THAT TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL DAYMARK HEALTH INC., DAYMARK PROVIDERS OR THEIR RESPECTIVE  SHAREHOLDERS, OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY/WRONGFUL DEATH, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE TEXTING PROGRAM, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE AND WHETHER OR NOT DAYMARK HEALTH WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, DAYMARK HEALTH SHALL BE LIABLE ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED U.S. $100.

To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.

15.  Indemnification

To the fullest extent permitted by law, you will indemnify and hold Daymark Health, its parents, subsidiaries, affiliates (including without limitation Daymark Health (DE) LLC, and all other affiliated professional entities and their health care providers), officers, employees, agents, partners and licensors (collectively, the “Daymark Health Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your violation of this Agreement; (b) your use of the Text Program; (c) your violation of any rights of another party, including any users of the Text Program; or (d) your violation of any applicable laws, rules or regulations.  Daymark Health reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Daymark Health in asserting any available defenses. You agree that the provisions in this section will survive any termination of this Agreement or your access to the Text Program.

16.  Miscellaneous Terms

Governing Law. This Agreement, your use of the Text Program, and any action related thereto shall be governed by and construed in accordance with the laws of the State of Delaware consistent with the Federal Arbitration Act, without regard to the choice of law provisions of any jurisdiction.

Assignment. This Agreement inure to the benefit of and will be binding upon our and your permitted successors and assigns. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Daymark Health’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Daymark Health may, without further consent or notification, assign all contractual rights and obligations pursuant to this Agreement if some or all of Daymark Health is transferred to another entity by way of merger, sale of its assets, or otherwise.

Amendment. Except as described in the section entitled Availability and Changes to the Daymark Text Program, this Agreement may not be amended unless in writing and signed by both Parties.

Waiver. Any failure or delay to exercise or enforce any right of this Agreement, or failure to insist upon or enforce strict performance of any provision of this Agreement, shall not constitute a waiver of such right or provision. Waivers shall be effective only if in writing and signed by Daymark Health.

Entire Agreement and Severability. This Agreement, together with any amendments and any additional agreements or consents you may have entered with us in connection with the Text Program, constitute the entire agreement between you and us concerning the Text Program. If any portion of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, that portion will be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions will remain in full force and effect.

17.  Copyright Policy

Daymark Health respects the intellectual property of others and asks that users of our Text Program do the same.  In connection with our Text Program, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials.  If you believe that your work has been duplicated in a way that constitutes copyright or other intellectual property infringement, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated agent located at Daymark Health Inc., 701 E Cathedral Rd Ste 45 #3076 Philadelphia, PA 19128 (ATTN: Legal Department) with a copy to: legal@daymarkhealth.com:

  • your physical or electronic signature;

  • identification of the copyrighted work(s) that you claim to have been infringed;

  • identification of the material in our Text Program that you claim is infringing and that you request us to remove;

  • sufficient information to permit us to locate such material;

  • your address, telephone number, and e-mail address;

  • a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and

  • a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.

18.  Contact Us

If you have questions or concerns about this Agreement, you may contact us by mail at:

Daymark Health Inc., 701 E Cathedral Rd Ste 45 #3076 Philadelphia, PA 19128

You may also email us at hello@daymarkhealth.com.