SERVICES AGREEMENT
SERVICES AGREEMENT (“Agreement”) by and between HEALLIST INC. (“Heallist”; “us”;“our”; “we”), and the party identified on the Practitioner Account Page (“Practitioner”;“you”), made and effective as of the date this Agreement is indicated by Practitioner as accepted (the “Effective Date”). Heallist and Practitioner may each be also referred to as a “Party” and collectively as the “Parties”.
1. SERVICES. Heallist may provide a variety of services (the “Services”) via the Heallist website currently located at Heallist.com (the “Heallist Site”) and third party websites (“Partner Sites”), which may include, but are not limited to: (i) hosting, on the Heallist Site,Practitioner profile page featuring Practitioner’s name, photograph, offered services, biography, credentials, location, other marketing information; (ii) inclusion in Heallist’s online directory of Practitioners; (iii) wellness appointment scheduling services, integration with Practitioner’s practice management system, and appointment reminders for Customers(collectively, “Scheduling Technology Services”); (iv) account relations services; and (v) billing, collection and payment services (collectively, the “Payment Services”).
2. NON-EXCLUSIVITY. Nothing herein is intended nor shall be construed as creating an exclusive arrangement between you and Heallist. This Agreement will not restrict (a) you from advertising in other publications or media; or (b) Heallist from selling products and services to third parties.
3. PRACTITIONER ACCESS. During the Term, and subject to the terms and conditions of this Agreement, Heallist grants Practitioner the right to access and use the Services and/or the Heallist Site. During the Term, and subject to the terms and conditions of this Agreement, Practitioner grants Heallist the right to access and use Practitioner’s practice management system and calendar system (“Practitioner’s Systems”) and to copy, extract and use all data necessary to provide the Services. Practitioner acknowledges and agrees that Heallist shall not be subject to any terms not set forth herein with respect to Practitioner’s Systems, including but not limited to any click-through agreements Heallist may be required to accept in connection with its use thereof. Practitioner will furnish to Heallist such cooperation, technical assistance, resources, and support as reasonably necessary for Heallist to implement and perform the Services.
4. PRACTITIONER INFORMATION. Practitioner acknowledges and agrees that, in order to provide certain Services, Heallist shall, and shall authorize its partners to, make certain information available to Heallist’s end users (“Customers”) including, without limitation: (i) Practitioner’s address, phone number, fax number and email; (ii) information regarding Practitioner appointment availability; (iii) general office information; and (iv) trademarks, logos and such other domains, images and materials that Practitioner provides to Heallist (“Practitioner Logos”) (collectively, “Practitioner Information”). Heallist and its partners may use, modify, display, and reproduce Practitioner Information in connection with providing and marketing the Services and the Heallist Site. Practitioner may request that Heallist modify or supplement Practitioner Information (with, for example, additional services). Heallist may incorporate such modifications and supplemental information into Practitioner’s profile posted on the Heallist Site in Heallist’s sole discretion.
5. ACCOUNT. Practitioner shall create and maintain, throughout the Term, an account on the Heallist Site, which will include Practitioner Information, in order to use the Services (“Account”). Practitioner will be solely responsible for any disclosure of its Account information or use thereof by any unauthorized party. Practitioner shall immediately notify Heallist at support@Heallist.com following any unauthorized use, access or other compromise of an Account. Heallist reserves the right to disable any Account upon its reasonable belief that such Account’s security has been or likely will be compromised and/or based on unethical or improper conduct.
6. REVIEWS. Heallist solicits feedback from Customers who use the Heallist Site regarding the Practitioner (“Reviews”), and Heallist may, in its sole discretion, make these Reviews available through posting on the Heallist Site and/or Partner Sites. While Heallist may, from time to time, and in its sole discretion, remove Reviews (for example, for violation of Heallist’s policies), Heallist shall have no obligation to (i) review Reviews for veracity, accuracy or content, or (ii) remove any Reviews. Heallist shall have no liability to Practitioner with respect to, and Practitioner hereby releases Heallist from, all claims in connection with Reviews, including without limitation claims that a Review is defamatory, libelous, false, misleading, unfair, deceptive, and/or disparaging. The foregoing release is made by Practitioner notwithstanding the provisions of California Civil Code Section 1542 (or any other statute or common law principle elsewhere with a similar effect) which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” Practitioner expressly waives any and all rights it may have under the provisions of California Civil Code Section 1542 or any similar statute in any other jurisdiction. Practitioner acknowledges and agrees that Customer Information (as defined herein below) contained in Reviews is collected solely at the discretion of Heallist and not on behalf of Practitioner. Practitioner represents and warrants that it will not attempt to unduly influence or fraudulently create Reviews of its services, or other providers’ services, on the Heallist Site.
7. PRACTITIONER SOURCED REVIEWS. Heallist, in its sole discretion, may also display through the Services reviews of Practitioner submitted by non-Heallist end users or customersdirectly to Practitioner (“Practitioner Sourced Reviews”). The Parties agree to cooperate in good faith to conform Practitioner Sourced Reviews to Heallist’s standard form for publication through the Services.
8. CUSTOMER INFORMATION. “Customer Information” is information that Customers provide directly to Heallist so that Heallist can provide services to Customers. Customer Information includes, without limitation, information regarding: (i) creating an account, (ii) searching wellness providers, (iii) completing questionnaires, (iv) leaving reviews of Practitioners. Practitioner acknowledges and agrees that Customer Information may not include all, or any, information (for example, health information) necessary or desirable for Practitioner to provide services or for any other purpose.
9. FEEDBACK. Practitioner may choose to provide Heallist with comments concerning the Services or the Heallist Site and Practitioner’s use thereof, which may include bug reports, evaluations, or proposed integrations (collectively, “Feedback”). Practitioner hereby assigns to Heallist all rights and free and clear title and interest to the Feedback, for any and all commercial and non-commercial purposes, with no obligation of any kind to Practitionerand/or any third party.
10. RESTRICTIONS. Except as expressly authorized under this Agreement, Practitioner may not (i) copy, rent, lease, sell, lease, license, transfer, assign, sublicense, redistribute, disassemble, aggregate, index, reverse engineer or decompile, derive source code or algorithms from, modify or alter, interfere with, defeat, avoid, disrupt, bypass, remove or disable any part of the Heallist Site; (ii) circumvent or attempt to circumvent any restrictions on, access to, or use of the Heallist Site; (iii) introduce any virus, worm, back door, timer, time bomb, authorization codes, or other malware or device that would access, modify, interfere or disrupt the use of the Heallist Site; (iv) use the Heallist Site for any unlawful purpose, including also to phish or spam; (v) otherwise use the Heallist Site on behalf of any third party other than the Practitioner Website (as defined below), or to create or maintain a separate online scheduling platform, or other similar product or service; (vi) resell, disclose, publish or distribute the Heallist Site, including any information created, received, processed or provided through the Services or the Heallist Site; (vii) use the Heallist Site in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of publicity; (viii) cache or store any content obtained via use of the Heallist Site; or (ix) remove or alter any branding, identifying, or notices included with the Software (including, but not limited to, ‘Powered by Heallist’ or other Heallist Marks).
11. PLACEMENT. For the purposes herein, “Heallist Content” means all data, information and content provided or otherwise made available by or on behalf of Heallist through or in connection with the Services and the Heallist Site. Heallist Content includes the Heallist Marks, links and search functionality leading to the Heallist Site, and advertising for Heallist or for third party products. Heallist prohibits the placement of the Software or Heallist Content on Practitioner Websites that include content that is offensive, abusive, harassing, threatening, discriminatory, vulgar, pornographic, or otherwise inappropriate, as determined by Heallist in its sole discretion. Practitioner may not display the Heallist Content in a manner that does not permit and implement successful linking or redirection to the Heallist Website or delivery of the applicable Services to the Practitioner.
12. TELECOMMUNICATION ENABLING SERVICES.
a) Telecommunication Encounters. Subject to the terms and conditions of this Agreement, Heallist may provide services, either through its Software or via other means (for example, by partnering with a third-party technology provider) that will enable Customers to access wellness encounters with Practitioner via telecommunication technology (“Telecommunication Encounters”).
b) Telecommunication Marketing and Scheduling; Telecommunication Facilitation Services. Heallist’s services shall be limited to Marketing and Scheduling Services for Telecommunication Encounters (“Telecommunication Marketing and Scheduling Services”), and under no circumstances shall Heallist be deemed to be the provider of Telecommunication Encounters. Heallist’s services may also include the technological facilitation of Telecommunication Encounters between Practitioners and Customers via an interactive, two-way audiovisual communications system (the “Telecommunication Facilitation Services”).
c) Telecommunication Representations and Warranties. Practitioner represents, warrants, and covenants that, at all times during the Term:
(i) Practitioner who engages in Telecommunication Encounters possesses all valid, unexpired, unrevoked, unsuspended and unrestricted licenses, authorizations, and certifications (collectively, the “Licenses”) required to engage in Telecommunication Encounters;
(ii) Telecommunication Encounters will be provided by Practitioners in a manner that complies with all applicable state and federal laws and regulations, including, but not limited to, those that relate to (i) Practitioner’s scope of practice, (ii) remote prescribing, (iii) permitted modalities, (iii) privacy and security, and (iv) coding, billing and collection activities;
(iii) Practitioner shall obtain informed consent from Customers prior to engaging in Telecommunication Encounters, and such informed consent will comply with all applicable laws and regulations that may apply to wellness services delivered via telecommunication; and
(iv) Practitioner shall be responsible for establishing policies and procedures that shall be operationalized in the event that a Customer requires emergency wellness services during a Telecommunication Encounter.
13. PRACTITIONER RESPONSIBILITIES.
a) Practitioner Information. Practitioner will cooperate with Heallist to verify thePractitioner Information and any other information that Heallist in its sole discretion deems necessary to confirm Practitioners’ professional qualifications. Practitioner will promptly update and notify Heallist of any change in Practitioner Information, including without limitation Practitioner licensure status and any disciplinary action. Practitioner is solely responsible for any liability or expense resulting from outdated or inaccurate Practitioner Information. Practitioner agrees that Heallist may, in its sole discretion, modify the processes and criteria it uses to evaluate Practitioners’ qualifications, including with respect to any specialty listing, and may reject a Practitioner from being included in the Services for failure to meet Heallist’s eligibility standards, in Heallist’s sole discretion.
b) Acceptance of Customers. Practitioner’s acceptance of an appointment scheduling request from Heallist for a Customer constitutes, for the purposes of this Agreement, Practitioner’s acceptance of such Customer as a client. Practitioner is fully and solely responsible for all services rendered to Customer, and for collecting payment from Customer for all services rendered. Heallist will have no responsibility for collection (subject to Heallist’s Payment Services, if specifically applicable) or any liability whatsoever for fees for services due Practitioner that are unpaid by Customer.
c) Incorrect Practitioner Information. Practitioner agrees that any Customer who makes an appointment with Practitioner based on out-of-date or incorrect Practitioner Information as a result of Practitioner’s failure to provide accurate Practitioner Information, shall not be charged any fees nor otherwise subject to any obligation, at any time.
d) Scheduling Requests. Practitioner will respond to Customer scheduling requests within a reasonable amount of time, but in no event more than twenty-four (24) hours after receipt of Heallist’s request for an appointment on behalf of a Customer. Practitioner acknowledges and agrees that repeated rescheduling or cancelling of Customer appointments may result in Practitioner being removed from (or otherwise affected in the order of) display on the Heallist Site, in Heallist’s sole discretion.
e) Confirmation of Customer Information. If a Customer submits Customer Information on the Heallist Site and authorizes Practitioner to have access to such information in advance of an appointment, at the Customer’s appointment Practitioner will (i) provide Customer with a copy of such Customer Information, and (ii) give Customer an opportunity to review and accept or revise such Customer Information. Practitioner hereby acknowledges, agrees, releases, and indemnifies Heallist from all claims and liability arising out of, related to, or in connection with Customer Information provided through the Services. Practitioner has no rights in the Customer Information maintained by Heallist other than as expressly provided hereunder. If Heallist becomes aware that a Practitioner is using any Customer Information obtained through the Services and/or the Heallist Site in a manner that is inconsistent with the terms of this Agreement, Heallist’s Terms Of Use, Privacy Policy, or applicable law, Heallist may, without limiting any of its other remedies available at law or in equity, request that Practitioner immediately cease such inconsistent use and/or immediately terminate such Practitioner’s rights with respect to the Services and/or the Heallist Site. Heallist may, but has no obligation to, delete any content that Heallist, in its sole discretion, deems inappropriate for inclusion on the Heallist Site.
f) Contact. Practitioner agrees to be contacted by Heallist regarding the Services, the Software, and/or the Heallist Site. If Practitioner has opted out of receiving email or other communications from Heallist, then, as a condition of receiving the Services, Practitioner expressly opts back in to receiving such email and other communications and hereby withdraws its opt-out.
g) Non-Heallist Clients. Practitioner may elect to use certain specific Services for clients who are not Heallist end users, such as booking appointments for, or having appointment reminders sent to, such clients. Practitioner shall be responsible for obtaining any required consents, permissions or authorizations from such clients for the use and provision of such Services, including disclosure to and use by Heallist of the information (which for the avoidance of doubt shall not include protected health information) of any such clients consistent with the terms of this Agreement and applicable law. Heallist may send information, including but not limited to information regarding Heallist, the Services and/or certain resources, to such clients.
14. FEES; PAYMENTS.
(a) Services Fees. In consideration of the Services provided by Heallist, Practitioner shall pay Heallist (for the purpose of this Section, Practitioner acknowledges and agrees that “Heallist” also includes any third party provider of services, such as a payment processor, with whom Heallist chooses to engage) the fees specified on Practitioner’s account page on the Heallist Site (“Practitioner Account Page”) as well as in any addendum entered into by the Parties, such fees to include, without limitation, fees for initial set up and subscription/recurring fees. Prices shown on the Practitioner Account Page do not include taxes that may apply. Practitioner agrees to pay sales and other taxes that may apply (excluding taxes based on Heallist’s income) unless Practitioner provides Heallist with a valid signed tax exemption certificate applicable to the Services, reasonably acceptable to Heallist. In the event Heallist invoices Practitioner, payment is due upon receipt of invoice. Heallist may charge Practitioner’s credit card, bank account, or other form of payment, on a one-time or recurring basis, in advance of the period of service, or in arrears, for the applicable rate for the Service then in effect. You hereby agree to these charges and these policies. If you have elected to pay for the Services by credit card, and Heallist does not receive payment from the credit card issuer, you agree to pay all amounts due Heallist immediately upon demand by Heallist.
(b) Termination. Upon termination of this Agreement for any reason, Practitioner shall pay to Heallist all fees due or accrued under this Agreement and any addendum or Practitioner Account Page, as of the date of such termination. Notwithstanding anything to the contrary in this Agreement or in any addendum, Heallist shall not refund to Practitioner any fees paid prior to expiration or termination of this Agreement.
(c) Fee Practices. The Services impose no requirements on the manner in which Practitioner provides services to Customers; notwithstanding the foregoing, Practitioner agrees not to charge any Customers different rates based upon such Customers booking through the Heallist Site or otherwise using Heallist Services, nor to charge Customers a fee for booking through the Heallist Site or otherwise using Heallist Services.
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PRACTITIONER.
Practitioner represents, warrants and covenants that:
(a) Confidentiality. (i) Practitioner will maintain the confidentiality of Customer Information and shall only use Customer Information or the information of other clients as permitted in this Agreement and consistent with state and federal laws, includingwithout limitation applicable privacy and data security laws; and (ii) Practitioner will implement and maintain reasonable and appropriate administrative, organizational, physical, and technical safeguards to protect the confidentiality, integrity and availability of Customer Information, Account information, and Heallist Confidential Information, and prevent such information from improper use and disclosure.
(b) Practitioner Information. (i) Practitioner will provide Heallist complete and accurate information about Practitioner’s specialties (in accordance with and subject to Heallist’s then-current guidelines on specialty listings and modalities), practice affiliations, association memberships, board certifications, insurance participation, and contact information (including Practitioners’ professional address, email, phone and fax numbers); (ii) Practitioner will provide Heallist accurate and up-to-date information regarding each Practitioner’s appointment availability; (iii) Practitioner possesses valid, unexpired, unrevoked and unrestricted licenses, authorizations and certifications: (A)for all jurisdictions in which he or she practices (free of any disciplinary actions by state medical boards or other applicable regulatory bodies), (B) necessary to provide all services or treatment provided by Practitioner to a Customer or client resulting from Practitioner’s use of the Services and/or the Heallist Site (and Practitioner shall confirm the same to Heallist on at least an annual basis), and (C) necessary for Heallist to display Practitioner’s specialties; (iv) Practitioner is a member in good standing in anyoccupation in which he or she practices with appropriate clinical privileges (if applicable); (v) Practitioner possesses valid and unrestricted state and federal narcotic and controlled substances registrations, as applicable; (vi) Practitioner will obtain and maintain professional liability insurance coverage and other insurance of the types and in the amounts that are at a minimum consistent with industry standards and applicable law, with respect to Practitioner’s practice; (vii) Practitioner shall serve all Customers and other clients without regard to their race, religion, gender, sexual orientation, disability, payer source and/or other unlawful considerations; (viii) the Practitioner with whom the appointment is booked shall be the person providing the services; (ix)Practitioner will use the Services and the Heallist Site in compliance with all applicable laws and regulations; (x) Practitioner has the right to enter into this Agreement and abide by the terms and conditions herein; Practitioner represents, warrants and covenants that it will notify Heallist within five (5) days of any additional information applicable to Practitioner’s or Practitioner’s practice, any changes with respect to any information provided to Heallist, or immediately if at any point Practitioner is no longer in compliance with any of the warranties, representations, or covenants in this Section. Practitioner shall solely be liable for any damages in connection with any failure by Practitioner to meet the requirements of this Section.
(c) Competition. Practitioner will not engage or participate in any act or omission involving the use of the Services (i) to establish, attempt to establish, or enforce, directly or indirectly, any agreement or coordination of (A) the prices charged for any product or service; (B) the kinds, frequencies or amounts of any product or service offered; or (C) the customer or customer categories for any product or service; or otherwise engage or attempt to engage in price fixing, output restriction, or customer or market allocation; or (ii) to engage in any anti-competitive, deceptive or unfair act, omission or practice, or to otherwise violate applicable antitrust, competition or consumer protection laws or regulations.
(d) Discount Reporting. Practitioner shall disclose to each applicable payor, to the extent required by applicable law or contract, the net amount Practitioner paid for the applicable Marketing and Scheduling Technology Services hereunder (i.e., net of any applicable discounts, rebates, or other price concessions).
(e) Ownership Rights. Practitioner has all necessary right, title and interest in and to the content submitted by Practitioner to Heallist.
(f) Practitioner Sourced Reviews. (a) Practitioner has obtained all rights, titles, interests, consents and authorizations necessary in accordance with applicable law for Heallist to publish Practitioner Sourced Reviews through the Services, (b) each Practitioner Sourced Review is unbiased and no remuneration has been or will be provided to the applicable Customer or client for his or her review, and (c) each Practitioner Sourced Review has been provided to Practitioner by a Customer or client of Practitioner in connection with services actually provided (or that ought to have been provided, as the case may be) by the Practitioner.
16. INDEMNIFICATION. Practitioner will defend, indemnify and hold harmless Heallist and its affiliates, owners, directors, officers, employees, consultants and agents from any and all claims, actions, proceedings, losses, damages, liabilities and expenses, including reasonable attorneys’ fees and amounts awarded by a court or paid in settlement, arising from or related to: (i) any services, treatment, fees, costs or expenses in connection with Practitioner’s use of the Services and/or the Heallist Site; (ii) use of Services; (iii) provision of Services; (iv) gross negligence, willful or intentional misconduct, or fraud by a Practitioner; (v) any breach of this Agreement; (vi) Practitioner Sourced Reviews; or (vii) Practitioner Information.
17. MUTUAL WARRANTIES. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized (applicable to Practitioner if Practitioner is an entity); (ii) it has the full power to enter into this Agreement and to perform its obligations hereunder; (iii) the execution and delivery of this Agreement will not result in any breach of any terms and conditions of, or constitute a default under, any other agreement by which such Party is bound; and (iv) it is not currently the subject of a voluntary or involuntary petition in bankruptcy, does not currently contemplate filing any such voluntary petition, and is not aware of any basis for the filing of an involuntary petition.
18. LIMITATION OF LIABLITY.
(a) Disclaimer. The Parties acknowledge and agree that Heallist is not responsible for: (i) the accuracy, reliability, timeliness, or completeness of Practitioner Information, Benefit Information (defined below), Customer Information, other data provided by Customers, or any other data or information provided or received through the Services and/or the Heallist Site; (ii) any results that may be obtained from the use of the Services and/or the Heallist Site; (iii) reliance on any Customer Information or other data provided through the Services and/or the Heallist Site; (iv) the cancelling or rescheduling of any appointment booked through the Services and/or the Heallist Site; (v) use of the Software after the Term; or (vi) losses or injury arising from a Practitioner’s failure or from any and all incidents not caused by Heallist.
(b) Health Care. Practitioner acknowledges and agrees that Heallist is not a health care provider, licensed or otherwise. Heallist cannot and will not assume responsibility for the care of any Practitioner’s Customers or clients, which shall at all times remain the responsibility of Practitioner. Heallist will not be responsible for any activity that involves the provision of wellness services.
(c) Benefit Information. Practitioner may receive certain insurance-related information (including without limitation coverage and benefit information) of Customers (“Benefit Information”) through the Services. Practitioner agrees and acknowledges that (i) Heallist cannot, and will not, confirm the accuracy of the Benefit Information; (ii) HEALLIST MAKES NO GUARANTIES AND DISCLAIMS ALL WARRANTIES THAT SUCH BENEFIT INFORMATION IS ACCURATE, TIMELY, COMPLETE OR ERROR-FREE; and (iii) Practitioner is ultimately responsible for verifying all Benefit Information.
(d) No Other Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES, SOFTWARE AND THE HEALLIST SITE ARE PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’ WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEALLIST HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE, AND ALL WARRANTIES OF THE SERVICES, SOFTWARE OR THE HEALLIST SITE BEING BUG-FREE, ERROR-FREE OR FREE FROM DEFECTS.
(e) Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL HEALLIST, ITS OWNERS, OFFICERS, EMPLOYEES, CONSULTANTS, ADVISORS, PARTNERS, AFFILIATES, SUPPLIERS, VENDORS AND/OR LICENSORS BE LIABLE TO PRACTITIONER FOR ANY (i) LOSS OF PROFITS, LOST REVENUE, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF DATA, (iii) LOSS OR INTERRUPTION OF USE OF THE SERVICES, SOFTWARE, HEALLIST SITE, OR PARTNER SITES, (iv) PROVISION OF SERVICES, HEALTH CARE OR OTHERWISE, TO CUSTOMERS, OR (v) PRACTITIONER SOURCED REVIEWS, WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY, EVEN IF HEALLIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(f) Limitation. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF HEALLIST, ITS OWNERS, OFFICERS, EMPLOYEES, CONSULTANTS, ADVISORS, PARTNERS, AFFILIATES, SUPPLIERS, VENDORS AND/OR LICENSORS, FOR ANY LOSS OR DAMAGES (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENT, EXCEED THE GREATER OF (A) THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID BY PRACTITIONER TO HEALLIST HEREUNDER DURING THE PREVIOUS TWELVE (12)-MONTH PERIOD, OR (B) ONE HUNDRED DOLLARS ($100).
19. INTELLECTUAL PROPERTY.
(a) Heallist’s Rights. All right, title and interest, including without limitation all intellectual property rights, in and to the Services, Software and the Heallist Site, including all content submitted by Customers, Practitioner (other than Practitioner Logos), as well as all URLs and domains registered by Heallist, shall remain the exclusive property of Heallist. Heallist retains all proprietary rights, title, and interest, including without limitation all patents, copyrights, trademarks, service marks, trade dress, trade secrets, and rights to the look and feel of the Heallist Site, in and to any inventions, data, information, know-how, logos, ideas, concepts, technology, software and documentation related to or resulting from the utilization of the Services and/or the Heallist Site.
(b) Rights granted to Heallist. Heallist shall develop, compile, modify or otherwise maintain all content on the Heallist Site or as part of the Services, including without limitation Practitioner photographs and any and all content provided by Practitioner. Practitioner acknowledges and agrees that Heallist may: (i) make content from the Heallist Site, including also Practitioner Information, available on Partner Sites; and (ii) use Practitioner’s name, likeness, photographs, and/or obtain insurance information. Practitioner also grants Heallist a non-exclusive, royalty-free license to use Practitioner Logos in connection with the Services during the Term.
(c) Software; Acceptance; License. You may choose to review, download or otherwise utilize certain software applications or other code and functionality from the Heallist Site or otherwise provided by Heallist (“Software”). As a condition to using the Software, you must agree to all terms in this Agreement and certain other terms and conditions that may apply (collectively, the “Software Terms”). You are not required to agree to the Software Terms. However, if you do not agree to the Software Terms, you do not have any right to use the Software. If you use the Software, you will be deemed to have agreed to and accepted the Software Terms. Subject to the Software Terms and during the Term hereof, Heallist hereby grants Practitioner a limited, non-exclusive, non-sublicensable, non-transferable and revocable right to use the Software for its internal business purposes and solely in connection with the relevant Services. Heallist reserves all rights to the Software not expressly granted hereunder.
(d) Heallist Marks License. “Heallist Marks” means the Heallist name and any and all patents, trade names, trademarks, service marks, logos and trade secrets of Heallist. Subject to the terms and conditions of this Agreement, Practitioner may display Heallist Marks on the Practitioner’s website promoting Practitioner’s professional services (“Practitioner Website”). If Heallist determines in its sole discretion that any use of Heallist Marks may be objectionable (in Heallist’s sole discretion), then Practitioner will promptly cease such use or modify its use to be consistent with Heallist’s reasonable requests. Upon any termination of this Agreement, Practitioner will immediately cease all use of Heallist Marks, and any other similar mark, name or logo. Any permitted use of a Heallist Mark will also be subject to Heallist’s then-current trademark usage guidelines. At all times, Heallist shall have the right (but not the obligation) to terminate Practitioner’s right to use any Heallist Mark immediately upon written notice.
20. CONFIDENTIALITY.
(a) Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”) that is designated as confidential at the time of disclosure, and/or marked as ‘Confidential’ and/or ‘Proprietary’, and/or reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all Practitioner Account Page(s) hereunder), the Services, the Heallist Site, business and marketing plans, technology and technical information, and business processes. Confidential Information shall not include protected health information or any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (4) is received from a third party without breach of any obligation owed to the Disclosing Party.
(b) Non-Disclosure. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose other than reasonably required to perform and abide by this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to its employees and contractors who need to know such information for purposes of performing the Receiving Party’s obligations under this Agreement, provided that the Receiving Party certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain such Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own information of a confidential and proprietary nature, but in no event less than a reasonable degree of care. Practitioner acknowledges and agrees that disclosure of Confidential Information would inevitably occur if Practitioner utilizes any services by any competitor of Heallist during the Term.
(c) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s request and cost, if the Disclosing Party wishes to contest the disclosure.
(d) Injunctive Relief. If the Receiving Party discloses or uses (or threatens to disclose or use) Confidential Information in breach of the confidentiality obligations hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts without the requirement of posting a bond (or an equivalent thereof). The Parties specifically acknowledge that, in such event, any other available remedies would be inadequate.
21. TERM; TERMINATION.
(a) Term. This Agreement will commence as of the date of Practitioner’s acceptance of the terms and conditions herein, whether by clicking on the ‘Accept’ button, or by checking the box indicating acceptance of this Agreement, or by downloading, accessing or otherwise using the Services and/or the Heallist Site, and shall continue in effect for a period set forth in the Practitioner Account Page or, if no period is set forth in the Practitioner Account Page, for a period of one (1) year (as applicable, the “Initial Term”). This Agreement will automatically renew for successive periods of the same length as the Initial Term unless either Party notifies the other Party in writing at least thirty (30) days prior to the end of the Initial Term, or any renewal period, of its election not to renew this Agreement. The Initial Term and all renewal periods are collectively referred to herein as the “Term.”
(b) Termination. Notwithstanding the foregoing provision regarding the Term, Practitioner or Heallist may terminate the Term and this entire Agreement if the other Party breaches a material term of this Agreement and fails to cure such breach within ten (10) business days of receiving written notice setting forth such breach in reasonable detail.
(c) Suspension. Heallist may immediately suspend or terminate this Agreement in the event that Heallist believes in its sole, reasonable, determination that a Practitioner has engaged in inappropriate or unprofessional conduct or otherwise breached any provision of this Agreement. Heallist further reserves the right, in its sole discretion, to terminate this Agreement immediately for a Practitioner’s repeated rescheduling or cancelling of appointments.
(d) Survival. All terms which by their nature should reasonably survive expiration or termination of this Agreement, shall so survive expiration or termination of this Agreement.
22. GENERAL PROVISIONS.
(a) Assignment. Neither Party may assign this Agreement and/or any of its rights and obligations hereunder, without the prior written consent of the other Party, except that Heallist has the unrestricted right to assign this Agreement to an affiliate or in the event of a sale, merger or acquisition of a portion or all of Heallist or its assets. Any attempted transfer in violation of this Section will be void and of no effect. This Agreement will be binding upon, and inure to the benefit of, the respective successors, representatives, and permitted assigns of the Parties.
(b) No Inducement. Nothing contained in this Agreement, including without limitation any fees paid or payable, is intended or shall be construed (i) as recommending the ordering of any items or services, of any kind whatsoever; (ii) as splitting of any fees paid to Practitioner; (iii) to interfere with a Customer or client’s right to choose his or her own wellness provider, or with a provider’s judgment regarding providing services; or (iv) as remuneration in exchange for a disclosure of any information from a Customer or otherwise.
(c) Non-Disparagement. Practitioner acknowledges and agrees that it shall not (i) makeany comparative references to Heallist, its pricing, the Services, or the Heallist Site; and(ii) disparage or otherwise denigrate Heallist, its owners, officers, employees, consultants, advisors, the Services, and/or the Heallist Site.
(d) Disclaimer Regarding HIPAA Compliance. If and to the extent you are covered entity under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and need your business associates to comply with HIPAA, Heallist hereby notifies you that Heallist’s operations are not compliant with HIPAA. Heallist’s operations may generallybe exempt from HIPAA pursuant to the conduit exception; however, if and to the extent the Services provided to you would not qualify for the conduit exception, Heallist’s operations with respect to the Services are not HIPAA compliant. You understand and agree that Heallist will not execute a business associate agreement under HIPAA.
(e) Notices. All notices under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be sufficiently given if sent to Practitioner via email. Either Party may update its preferred notice address at any time upon notice to the other Party. Any such notice or other communication shall be deemed to be given as of the date it is delivered to (or rejected by) the recipient; or, if delivered on a non-business day, on the next business day.
(f) Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware without reference to the conflict of laws provisions thereof. Regardless of (a) anything to the contrary contained in this Agreement; (b) any statute of limitations; (c) and any other law, any claim under this Agreement and/or otherwise related to the Service must be brought within one (1) year after the cause of action arises, or such claim or cause of action shall forever be barred.
(g) Waiver of Jury Trial. PRACTITIONER AND HEALLIST WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. Practitioner and Heallist are instead choosing to have claims and disputes resolved by arbitration. In any litigation between Practitioner and Heallist over whether to vacate or enforce an arbitration award, PRACTITIONER AND HEALLIST WAIVE ALL RIGHTS TO A JURY TRIAL and elect instead to have the dispute be resolved by a judge.
(h) Infringement. Notwithstanding the obligation to arbitrate disputes contained in this Agreement, each Party shall have the right to pursue injunctive or other equitable relief at any time, in any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a Party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(i) Arbitration Agreement.
a. Practitioner and Heallist acknowledge and agree that for the purposes of any dispute arising out of or relating to this Agreement, Heallist’s owners, officers, directors, employees and independent contractors (collectively, “Personnel”) are third-party beneficiaries of this Agreement, and that Personnel shall have the right to enforce this Agreement against Practitioner as third-party beneficiaries hereof.
b. The Parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to this Agreement directly through good-faith negotiations, which shall be a precondition to either Party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in the State of New York. The arbitration will proceed in the English language, in accordance with either the JAMS Streamlined Arbitration Rules and Procedures or the American Arbitration Association (AAA) rules pertaining to the dispute then in effect (either set of rules, as applicable, shall be referred to hereunder as the “Rules”), by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. The Rules will govern payment of all arbitration fees.
c. The Parties agree, and the arbitrator shall issue an order providing, that (1) all pleadings, motions, discovery responses, depositions, testimony, and documents exchanged or filed in relation to the arbitration be kept strictly confidential; and(2) any award issued by the arbitrator shall be entered under seal in a court of competent jurisdiction. The Parties also agree that any Party may seek a separate order from a court of competent jurisdiction enforcing the arbitrator’s order protecting the disclosure of pleadings, motions, discovery responses, depositions, testimony, and documents exchanged or filed in the arbitration, provided that such motion and responses and replies thereto shall be filed under seal.
d. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE PURSUED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. CLAIMS OF MORE THAN ONE PRACTITIONER CANNOT BE PURSUEED (WHETHER ARBITRATED OR OTHERWISE) JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PRACTITIONER.
e. If the prohibition against class actions, or any other part of this Arbitration Agreement subsection and its own subsections, is found to be unenforceable, then all of the other language in this Agreement and this subsection shall remain enforceable.
(j) Force Majeure. Except for a Party’s payment obligations, the performance of either Party under this Agreement may be suspended to the extent and for the period of time that such Party is prevented or delayed from fulfilling its obligations due to causes beyond its reasonable control (including, without limitation, acts of God, acts of civil or military authority, new legislation or regulatory requirements, strikes or other labor disturbances, fires, floods, epidemics or pandemics, wars or riots). After thirty (30) cumulative days of suspension on the part of one Party, the other Party may, at its sole discretion and with written notice to the affected Party, terminate its obligations without further liability to the non-terminating Party.
(k) Modification; Waiver. No modification, amendment or waiver of this Agreement shall be binding upon Heallist unless made in writing. Heallist may amend the terms and conditions of this Agreement by posting a notice on the Practitioner Account Page or otherwise reasonably notifying Practitioner at least thirty (30) days prior to such change taking effect, provided that if Practitioner does not agree to such changes, Practitioner may terminate this Agreement upon written notice to Heallist. Practitioner’s continued use of the Services and/or the Heallist Site after such notice,shall be deemed to be Practitioner’s acceptance of such change. A failure or delay of either Party to (i) insist upon the performance of any terms, conditions, rights or privileges of this Agreement; or (ii) exercise any rights or privileges conferred in this Agreement, shall not be construed as waiving any such terms, conditions, rights or privileges and the same shall continue and remain in full force and effect.
(l) Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable provision which comes closest to the intention of the Parties underlying the invalid, illegal or unenforceable provision.
(m) Entire Agreement. This Agreement, any addenda hereto, the policies referred to herein, and any and all Practitioner Account Page(s) and the information therein, constitute the entire agreement between the Parties and supersede all previous or contemporaneous agreements, promises, representations, whether written or oral, between the Parties with respect to the subject matter hereof.
(n) Headings. The headings of the sections of this Agreement are for convenience only, and do not form a part hereof or in any way limit, define, describe, modify, interpret or construe the meaning, scope or intent of this Agreement or any terms or conditions therein.
(o) Independent Contractors. The relationship of the Parties shall be that of independent contractors. Any employee, contractor or agent of a Party shall remain at all times under the exclusive direction and control of such Party, and shall not be deemed to be an employee, servant, contractor or agent of the other Party. Neither Party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other Party, or to represent the other Party as agent, employee, or in any other capacity, except as specifically and expressly provided herein.
(p) Third-Party Beneficiaries. Except as otherwise expressly stated in this Agreement, no third party shall have the right to make any claim or assert any right under this Agreement, nor be deemed a beneficiary of this Agreement.
HEALLIST // PRACTITIONER SERVICES AGREEMENT // V2 // JUNE 2023