CUSP DENTAL SERVICE CONTRACT
TERMS AND CONDITIONS

All capitalized terms have their meanings provided as defined within the section the capitalized term is defined or used.

The terms “You”, “Your” and “Patient” refer to the purchaser of this CUSP Dental Service Contract (together with its Service Contract Information Form, the “Agreement” or “Contract”). The terms “We,” “Us,” “Our” and “CUSP” refer to Cusp, LLC, the obligor and administrator under this Agreement.

This Agreement governs the CUSP Dental Service Contract, which may be referred to as CUSP Care, extended warranty or protection plan, You purchased from Your Provider (“Seller”). The following terms and conditions apply:

Definitions:

“Assigned Provider” means the Provider, which may or may not be the Provider that performed the original treatment for the Covered Equipment or sold this Contract to You, authorized in advance by CUSP to repair or replace Covered Equipment for a covered claim under this Agreement.

“Covered Equipment” means Your dental appliance, apparatus, product or equipment selected for the specified tooth [or teeth], as applicable, on the Service Contract Information Form.

“Effective Date” means the contract date indicated on the Service Contract Information Form.

“Failure” means the breakage or inability of Covered Equipment to perform or function as designed due to defects in its material or workmanship.

“Fee” means the purchase price (excluding tax, if any) amount specified in the Service Contract Information Form or Treatment Plan due and payable by You as consideration for coverage under this Agreement.

“Preexisting Condition” means a fact, circumstance, event or condition that existed or reasonably would be expected to have existed prior to the Effective Date which causes damage to the Covered Equipment other than a manufacturer’s defect in such Covered Equipment.

“Provider” means a dentist, endodontist, oral surgeon, periodontist or similar licensed dentistry practitioner.

“Service Contract Information Form” means the supplement to this Agreement attached hereto and made part of this Agreement which contains the information about the Covered Equipment and Your Contract(s).‎

“Term” means the lesser of  a) the term on the Service Contract Information Form, or b) the period of time from the Effective Date to the date of any repair or replacement of Covered Equipment for which this Agreement is effective.

“Treatment Plan” means the form provided to You summarizing the proposed course of action recommended by Your Provider which may include the recommendation of Your Provider for CUSP Care.

1.  Coverage and Coverage Limitations. In exchange for the Fee paid by You as set forth herein, We agree to cover the total cost assessed by the Assigned Provider to repair or replace the Covered Equipment with the same Covered Equipment for the respective tooth, as applicable, indicated in the Service Contract Information Form of this Agreement in the event of a Failure of the Covered Equipment, subject to all the terms and conditions contained in this Agreement. This Agreement provides coverage only for the original Covered Equipment specified on the Purchase Information Form. During the Term, this Contract will cover one (1) repair or replacement of the Covered Equipment. Once any repair or replacement has been performed on the Covered Equipment, this contract is terminated.

2. Exclusions. This Agreement does not cover the following:

1. Preexisting Conditions;
2. Cosmetic discolorations;
3. Failure of Patient to follow treatment maintenance guidelines provided by Provider;
4. A Failure due to a health or medical condition arising out of or resulting from drug or substance abuse;
5. Medical conditions that cause damage to the oral cavity and structures, including but not limited to bone, sinuses and/or gums;
6. Treatments covered under any health insurance, dental insurance, manufacturer’s warranty or other indemnity;
7. Covered Equipment which is also covered by a manufacturer’s warranty, product recall or other indemnity;
8. Failure arising out or resulting from the misdiagnosis, improper installation of Covered Equipment or negligent treatment by Your Provider;
9. Failure arising out of or resulting from Your intentional or negligent acts or omissions; and
10. Failure due, in whole or in part, to any malpractice, negligence or professional liability by the Provider that performed the original treatment for the Covered Equipment.

3. Patient’s Responsibilities and How to Obtain Service for a Claim. As a condition precedent to obtaining coverage under this Agreement, Patient must do the following:

1. Upon Patient’s determination of the Failure; Patient must take immediate action to prevent further damage to the Covered Equipment.
2. Patient must notify Provider of a potential claim under this Agreement for a Failure within 24 hours of Patient’s discovery of such Failure. If Patient has moved or other circumstances prevent the Patient from seeking treatment from the Provider for a potential claim, Patient must notify CUSP by phone of a potential claim under this Agreement for a Failure within 24 hours of Patient’s discovery of such Failure by calling CUSP toll free at (877) 336-2877. CUSP shall notify Patient of the designated Assigned Provider within three (3) business days of CUSP receiving direct notification from Patient of a potential claim made under this Agreement.
3. Patient must seek treatment for the Failure from the Provider or Assigned Provider within seven (7) calendar days of Patient’s discovery of such Failure.
4. If You see an Assigned Provider, other than a Provider that performed the original treatment for the Covered Equipment, You are responsible for coordinating directly with the Assigned Provider to file all necessary claim documents with CUSP. We reserve the right to make available on our website (www.mycusp.com) or otherwise via the internet an online claim submission resource for Your notification to, and filing with, Us a claim made under this Agreement, and, in the event such online claims resources is available, Patient must submit all claim information required by Us via such online resource.
5. Patient must appear at the appointed time for his or her dental appointment with the Assigned Provider; provided that, Patient may reschedule his or her appointment with such Assigned Provider upon not less than 24 hours prior notice by Patient to such Assigned Provider . Patient’s failure to appear for his or her dental appointment with such Assigned Provider without such prior notice of rescheduling shall void all coverage that may be applicable under this Agreement.
6. Fulfill all customary oral hygiene procedures, such as daily brushing of teeth and flossing as well as any recommended procedures specific to Your treatment or situation as instructed by Your Provider.
7. Fulfill all necessary oral hygiene follow-up appointments with the Your Provider every six (6) months following the date of the Patient’s treatment by such Provider of Covered Equipment, subject to a thirty (30) grace period for rescheduling appointments with such Provider during the Term.

4. Fee.  As consideration for the coverage provided hereunder, Patient shall remit to the Seller the Fee and any taxes on the Effective Date.

5. No Transfer; No Third-Party Beneficiaries. This Agreement and any rights and remedies of the Patient hereunder shall inure solely to the benefit of the Patient and nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement and any rights or remedies of the Patient hereunder are non-transferable by the Patient and do not cover any service request made under this Agreement by any other person or entity, and any attempt by the Patient to transfer or assign this Agreement or any rights or remedies hereunder shall be null and void and of no force or effect.

6. Seller. The Seller of this Agreement is not the administrator, obligor, or provider of this Agreement and is not an affiliate of CUSP. The Seller is not Our employee or agent and is not authorized by Us to create any obligation or liability of Us to You other than Our express contractual obligations under this Agreement created by the Seller’s sale of this Agreement.

7. Limitation of Liability and Exclusions from Coverage. CUSP’S LIABILITY TO PATIENT HEREUNDER SHALL BE LIMITED TO THE ACTUAL COST OF THE REPAIR OR REPLACEMENT OF THE COVERED EQUIPMENT PAID BY PATIENT TO ASSIGNED PROVIDER FOR SERVICES RENDERED FOR A FAILURE COVERED UNDER THIS CONTRACT. UNDER NO CIRCUMSTANCES SHALL CUSP BE LIABLE TO PATIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES, WHETHER ARISING DIRECTLY OR INDIRECTLY FROM THE FAILURE OF THE COVERED EQUIPMENT, DELAYS IN REPLACEMENT OR REPAIR OF THE COVERED EQUIPMENT OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER SUCH CLAIM IS BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE PATIENT IF THE PATIENT RESIDES IN SUCH A STATE. CUSP SHALL NOT HAVE ANY LIABILITY TO PATIENT FOR ANY TREATMENT OR SERVICES PERFORMED BY A PROVIDER OR ANY FAILURE OF A PROVIDER TO PERFORM ANY TREATMENT OR SERVICES FOR PATIENT.  CUSP’S RESPONSIBILITY IS LIMITED SOLELY TO REIMBURSE PROVIDERS UP TO THE AGREED UPON AMOUNT FOR A FAILURE AS SET FORTH IN THIS AGREEMENT.  ANY DENIAL OF A CLAIM BY CUSP SHALL NOT BE OR CONSTRUED AS A JUDGMENT BY CUSP AS TO THE MEDICAL NECESSITY OF THE PROCEDURE SOUGHT BY PATIENT, BUT RATHER SOLELY AN ASSESSMENT BY CUSP OF THE COVERAGE OF A CLAIM IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN NO EVENT SHALL CUSP HAVE ANY LIABILITY TO PATIENT FOR ANY MALPRACTICE, NEGLIGENCE OR PROFESSIONAL LIABILITY OF PROVIDER THAT PERFORMED THE ORIGINAL TREATMENT FOR THE COVERED EQUIPMENT OR ANY ASSIGNED PROVIDER.

8. Cancellation/Termination and Refunds.

1. The Patient may cancel this Agreement during the first thirty (30) days following Your receipt hereof for any reason by calling CUSP at (877) 336-2877 or delivering advance written notice of cancellation to CUSP at 1881 W Traverse Parkway, Suite E-630, Lehi, Utah 84043. Your right to void this Agreement during the first thirty (30) days following Your receipt hereof is not transferable and applies only to the original Agreement  CUSP may cancel this Agreement immediately for non-payment of the Fee or Your material misrepresentation in obtaining this Agreement or in submitting a claim.
2. Unless otherwise required under applicable law, if the Patient or CUSP cancels this Agreement within thirty (30) days after Patient purchases this Agreement and the Patient has not made a claim under this Agreement, the Agreement is considered void and CUSP shall remit to the Patient a full refund of the Fee paid by the Patient under this Agreement.
3. Unless otherwise specified under applicable law, if the Patient or CUSP cancels this Agreement within thirty (30) days after Patient purchases this Agreement and the Patient has made a claim under this Agreement, CUSP shall remit to Patient a full refund of the Fee paid by the Patient under this Agreement and Patient will be responsible to the Assigned Provider for all amounts owed to the Assigned Provider for any repair or replacement of the Covered Equipment and any other benefits received under this Agreement.
4. Unless otherwise required under applicable law, Patient may not cancel this Agreement more than thirty (30) days after purchase of this Agreement.

9. Privacy. You agree that We may share Your personal information with Our affiliates or third parties, including the Provider that performed the original treatment for the Covered Equipment and any Assigned Provider that perform services for Us or on Our behalf, but We only share Your personal information in accordance with all applicable laws. We do not authorize those third parties to use Your personal information for any purpose other than to perform the services described herein.

10. Not a Contract of Insurance. This Agreement is not a contract of insurance or a warranty. The obligations of CUSP under this Agreement may be insured pursuant to a service contract reimbursement insurance policy issued to CUSP.  If CUSP does not perform its obligations hereunder within sixty (60) days after the Patient files a claim with CUSP, You may be entitled to file a claim directly with the insurer indicated in Exhibit A, if any, for the state in which You purchased the Contract.

11. Dispute Resolution and Arbitration.   CUSP AND PATIENT EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL CLAIMS, DISPUTES, OR CONTROVERSIES OF ANY NATURE IN ANY WAY RELATED TO OR CONCERNING THIS AGREEMENT, OR OUR SERVICES OR PRODUCTS WILL BE RESOLVED EXCLUSIVELY BY BINDING ARBITRATION. THIS AGREEMENT TO ARBITRATION EXTENDS TO THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT, INCLUDING, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, RELATIONSHIPS WITH THIRD PARTIES WHO ARE NOT SIGNATORIES TO THIS AGREEMENT OR THIS ARBITRATION PROVISION.  THE VALIDITY, SCOPE, OR ENFORCEABILITY OF THIS ARBITRATION PROVISION OR THE ENTIRE AGREEMENT SHALL ALSO BE RESOLVED BY FINAL AND BINDING ARBITRATION BEFORE A SINGLE ARBITRATOR. THIS INCLUDES ANY CLAIMS AGAINST OTHER PARTIES RELATING TO SERVICES OR PRODUCTS PROVIDED TO YOU WHENEVER YOU ALSO ASSERT CLAIMS AGAINST US IN THE SAME PROCEEDING. CUSP AND PATIENT EACH ALSO AGREE THAT THIS ARBITRATION AGREEMENT IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTIONS 1, ET. SEQ. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES) ON AN INDIVIDUAL BASIS.

    For all disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve Your claim by sending a written description of Your claim to CUSP, LLC, 1881 W Traverse Parkway, Suite E-630, Lehi, Utah 84043  Attn: Claims Department.  We agree to negotiate Your claim in good faith. If We are unable to resolve the claim within 60 days after We receive Your claim description, You may pursue Your claim in arbitration. We each agree that if You fail to timely pay amounts due, We may assign Your account for collection, and the collection agency may pursue, in small claims court, claims limited strictly to the collection of the past due amounts and any interest or cost of collection permitted by law or this Agreement.

    If the arbitration provision applies or You choose arbitration to resolve Your disputes with Us, then either You or We may start arbitration proceedings. You must send a letter requesting arbitration and describing Your claim to Our registered agent at Corporation Services Company, 15 West South Temple, Suite 600, Salt Lake City, Utah 84101 Attn: Cusp, LLC   and the American Arbitration Association (“AAA”) to begin arbitration. All arbitration shall be administered by the AAA in accordance with its Rules and Procedures in effect at the time the claim is filed. Any arbitration that You attend shall occur only in Utah County, Utah.  The arbitrator shall apply relevant, substantive law and applicable statutes of limitation and shall provide written, reasoned findings of fact and conclusions of law. For claims under one thousand dollars $1,000 as to which You provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that You are the prevailing party in the arbitration, You will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, We will not seek an award of attorneys’ fees in arbitration even if an award is otherwise available to Us under applicable law.

    CLASS ACTION WAIVER. CUSP AND PATIENT EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.  IF A COURT OR ARBITRATOR DETERMINES IN AN ACTION BETWEEN YOU AND US THAT THIS CLASS ACTION WAIVER IS UNENFORCEABLE, THE ARBITRATION AGREEMENT WILL BE VOID AS TO YOU.  NEITHER YOU, NOR ANY OTHER CUSTOMER OF OURS, CAN BE A CLASS REPRESENTATIVE, CLASS MEMBER, OR OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING AGAINST US.

12. Entire Agreement. This Agreement including the Service Contract Information Form sets forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, with respect to the subject matter hereof, are superseded by this Agreement. This Agreement may not be modified, amended, waived or supplemented except as provided herein. The Seller is not authorized to make any changes or variations to this Agreement whether orally or in writing.

13. State Specific Variations. State specific variations, if any, provided on Exhibit A attached to this Agreement, control if inconsistent with any other terms or conditions of this Agreement.  Please refer to this exhibit for terms that apply in You based on the where You purchased this Agreement and as reflected on the Purchase Information Form.

14. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Utah (without regard to its conflicts or choice of laws principles that could or would cause the application of any law of any other state or jurisdiction).

15. Notices. Any notices required or permitted by You or Us to be given under this Agreement shall be in writing and either delivered by mail, email, or another functionally equivalent electronic means of transmission. By providing Us with Your email address You expressly consent to receive notices from Us electronically either to the email address You provided in the Service Contract Information Form or that We otherwise have on file from You or via website posting. Further, You expressly agree that any electronic communication delivered to You will be deemed to have been given or made to, and received by, You on the day that it was delivered to You, regardless of if You actually view the electronic communication. All notices to CUSP sent by mail must be addressed to the following: 1881 West Traverse Parkway, Suite E-630, Lehi, UT 84043.

16. Amendment; Waiver. No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless contained in a writing specifically referencing this Agreement and duly executed by the party against whom enforcement of the amendment, modification, discharge or waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Neither the waiver by either of the parties of a breach of or a default under any of the provisions of this Agreement, nor the failure by either of the parties, on one or more occasions to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of the terms and conditions set forth herein.

17. Other Applicable Coverage.   This Agreement may overlap or duplicate other coverages for a Failure You may have under a health, medical or dental insurance policy or plan or covered by a manufacturer’s warranty, extended warranty or other indemnity.  Services related to a Failure which are covered by any health, medical or dental insurance policy plan or covered by a manufacturer’s warranty, extended warranty or other indemnity will under no circumstances be covered under this Agreement and this provision shall take precedence over any similar provision contained in any applicable insurance or indemnity policy or plan or covered by a manufacturer’s warranty, extended warranty or another service contract.  In the event any such other applicable coverage exists for a Failure and includes a deductible, co-pay or similar cost-sharing amount You are required to pay, then coverage under this Agreement may apply solely to the extent Your cost of the services or procedures falling within such a deductible, co-pay or similar cost-sharing amount; provided that, such services or procedures are otherwise covered pursuant to this Agreement.

18. Severability.  This Agreement governs the CUSP Dental Service Contract You purchased from Your Provider.   If any portion of the Agreement is deemed invalid or unenforceable, it shall not invalidate the remaining portion of the Agreement.

19. Force Majeure. We have no responsibility for delays in Your, or Your failure, to receive service for a claim covered under this Agreement due to an act of God, fire, flood, explosion, war, revolution, acts of public enemy or terrorist, labor difficulties, including with limitation, strikes, slowdowns, picketing, boycotts, or civil commotion.