This Marketing Services Subscription Agreement (“the Agreement”) is made and entered into on the effective date set forth in the Insertion Order (the “Effective Date”) by and between Health Platforms, Inc. d/b/a Doctor.com, a Delaware corporation with its principal place of business at 1 Bryant Park, 39th Floor, Powa Technologies, New York, NY 10036 (“Company”) and the subscriber identified in the Insertion Order (“Subscriber”). The Parties may be referred to herein individually as a “Party” or collectively as the “Parties.”
Company is a provider of marketing services for healthcare professionals, and Subscriber seeks to obtain access to Company’s marketing services as follows:
Internet Marketing and Hardware Implementation. Upon execution of the Insertion Order, Company will begin the following implementation of the marketing services:
Internet Marketing Setup. For Doctor.com Core and Premium subscribers, Company will interview Subscriber to obtain specific information about Subscriber’s practice, the prospective patients to which Subscriber seeks to market, and other information about Subscriber’s practice in order to build a targeted marketing profile. Company will then use the profile developed, along with Subscriber’s existing logo or a logo that Company develops on Subscriber’s behalf, to set up the directory listing and optimization campaign for Subscriber, and submit that campaign to the its network of partner directories and across its syndication platform, as well as upload the profile to Company’s website. For Premium and Advanced subscribers, Company will also begin the development and set-up of the premium or advanced services.
Hardware Implementation. For Doctor.com Core and Premium subscribers, Company will deliver to Subscriber’s address listed in the Insertion Order (the “Designated Location”) a single laptop computer device (the “Hardware”) with the Doctor.com Review Kiosk Application uploaded, installed, tested, and configured on the Hardware. The Hardware will be furnished to Subscriber on a hardware as a service basis, which means that Company will remain the sole and exclusive owner of the Hardware and will retain all right, title, and interest in the Hardware and the licensee of all software installed on the Hardware. During the Initial Term of this Agreement and any Renewal Periods, Subscriber will be responsible for maintaining the Hardware at all times in its custody and control at the Designated Location, for using the Hardware solely in conjunction with the Review Kiosk Service, and for keeping the Hardware free of any liens or encumbrances, and Company will be responsible for performing any and all maintenance services on the Hardware. Upon expiration or termination of the subscription, Subscriber will be responsible for returning the Hardware to Company in good repair and operating condition, normal wear and tear accepted. Subscriber is expressly prohibited from leasing, renting, loaning, sharing, or otherwise transferring the Hardware to any third party.
Marketing Services. Following the completion of the implementation process, Company will perform the services on Subscriber’s behalf indicated on the Insertion Order:
Doctor.com Core Service. Subscribers who sign up for Core will have access to the following services:
ReviewHub Kiosk Service. Company will facilitate the collection of patient reviews on the Doctor.com network through the Hardware, which Subscriber will make available for patient use at the Designated Location. Once collected, reviews will be reviewed by Company’s customer service team to ensure that they meet Company’s published review guidelines. If approved, the reviews will be published at Company’s website and syndicated out to Company partner websites.
Directory Listing and Optimization Campaign. Company will claim, update, optimize, and maintain Subscriber’s directory listings throughout the Internet, using a profile that Company will develop on behalf of Subscriber during implementation. Subscriber hereby appoints and authorizes Company to act as its agent in claiming any and all directory listings on its behalf throughout the Internet.
Doctor.com Premium Service. Subscribers who sign up for Premium will have access to all of the services provided in the Doctor.com Core Program, as well as the following services:
Showcase Page Service. Company will develop, host, maintain, and optimize a single page, “Showcase” website at a domain selected by Company for Subscriber, which will be designed to advertise Subscriber’s practice and capture inquiries from prospective patients. Subscriber acknowledges and agrees that any content Company develops for the “Showcase” website will be based upon the materials and information Subscriber provides to Company about its practice, and that it is Subscriber’s sole responsibility to review all content that is developed for accuracy, correctness, and reliability before the website goes live in order to notify Company of any errors, and to provide a timely approval to the proposed content. Subscriber agrees to assume all risks of loss or damage in the event that Subscriber authorizes Company to take the website live without conducting a thorough review of the content and providing feedback on any issues with content or errors.
Network Promotion. Company will ensure that Subscribers are prominently featured in the search results of Doctor.com and all partner websites across the Doctor.com network.
Calling Service. Company will select unique tracking phone numbers and forward them to Subscriber’s main practice number, filtering out solicitations and other unwanted calls, and capturing certain identifying data about the calls such as the caller’s number, the location, the date/time of the call, and the duration of the call. In addition, Company will also offer the following optional services:
Call Interface. Company will greet callers to the tracked phone lines with a recording prompt asking them to identify whether they are a new patient, an existing patient, or someone with other business. Based on the self-identification of the caller, Company will route the calls to the designated Subscriber representative to answer the call.
Call Recording. Company will record all calls and store them on Company’s servers to make them accessible by Company and Subscriber in the secure Doctor.com client dashboard. Subscriber will be notified upon receipt of a new tracked call or recording and provided a link to review such call. Subscriber agrees to assume all risks of loss or damage from (a) any calls that are filtered out in error by Company in conjunction with Company’s provision of the Calling Service to Subscriber and (b) failing to comply with any applicable law through subscriber’s utilization of this Calling Service in conjunction with it’s practice.
Performance Reporting. Company will provide to Subscriber monthly performance reports via email, which will provide such metrics as the number of calls placed to tracked numbers, the number of online appointment requests sent to Subscriber, and the number of times that Subscriber’s profile was viewed on the Doctor.com network. In addition, Subscriber will have real-time access to the Subscriber dashboard, where Subscriber can monitor the performance of its campaign at any time and make revisions as needed to the practice and provider information.
Intellectual Property and Other Assets. Company and its licensors shall retain ownership of all right, title, and interest in any web pages content, and other marketing materials developed on behalf of Subscriber, as well as in the Doctor.com ReviewHub Kiosk Application. Company will also retain ownership of any domain names and phone numbers provided for use of Subscriber pursuant to this Agreement. If Subscriber provides any photographs, marks, logos, or other content to Company for use in conjunction with the services, Subscriber agrees that that it shall be solely responsible for procuring all necessary releases, permissions, licenses, or assignments authorizing the use of such materials in conjunction with Company’s marketing efforts on behalf of Subscriber. Subscriber solely agrees to assume all risks of loss or damage arising from Company’s use of any such content without obtaining the appropriate permissions in advance of such use. Subscriber hereby grants to Company a nonexclusive license during the Initial Term and any Renewal Periods to use, display, publish, republish, and sublicense to third parties all such content.
Fees and Payments: Subscriber will be responsible for the payment of the following:
Set-Up and Membership Fees. Upon execution of the Insertion Order, Subscriber shall pay the set-up and membership fees listed in the Insertion Order.
Subscription Fee. Commencing on the Effective Date, Subscriber will pay to Company a subscription fee in the amount indicated on the Insertion Order. All subsequent subscription fee payments will be due and payable as per the terms outlined on the Insertion Order.
Payments. All payments will be billed automatically to the credit card on file with Company. Company accepts Visa, Mastercard, or American Express.
Term and Termination. The subscription shall start as of the Effective Date and continue for term indicated on the Insertion order (the “Initial Term”). Upon expiration of the Initial Term, the Agreement will automatically renew for successive periods equal in duration to the Initial Term (the “Renewal Period(s)”). Following the expiration of the Initial Term, either Party shall have the right to terminate upon five (5) days written notice to the other Party. Company shall have the right to terminate for material breach upon written notice in the event that Subscriber violates any term or condition of this Agreement. Also, in the event that Subscriber’s credit card on file stops working at any time, Company shall have the right in its sole and absolute discretion to suspend the performance of services until payment in full is received, or alternatively, to immediately terminate this Agreement for material breach. Company reserves the right to charge Subscriber a fee of Four Hundred Dollars ($400.00) in the event of the event of any material breach of Section 1(b) above. Upon any expiration or termination of the Doctor.com Premium Program Calling Service, Company will provide a single update to all directories prior to shutting down the phone line, which revises the published phone number from the cancelled phone number to Subscriber’s main phone number still in effect. The following terms and conditions shall survive any expiration or termination of the services until the terms set forth therein are fully exhausted: Sections 1, 4X7, 8 (d-e), 9, and 10 (a-g).
Confidential Information. The Parties agree not to disclose the terms and conditions of this Agreement or any Confidential Information without the non-disclosing Party’s prior written consent. “Confidential Information” shall mean any technical data, trade secrets, know-how, including, but not limited to, research, product plans, products, services, partner lists and partners, software, developments, inventions, processes, formulas, proprietary technology, designs, drawings, engineering, hardware configuration information, and marketing, financial, or other business information about either Party, except as and to the extent such Confidential Information becomes publicly known by a means other than disclosure by the disclosing Party.
Warranty and Liability.
Subscriber Warranty. Subscriber warrants and represents that (i) the individual executing this Agreement on behalf of Subscriber is authorized to enter into this Agreement and has the power and authority to bind Subscriber to all the obligations set forth herein and (ii) that Subscriber will perform all Subscriber obligations as further described in this Agreement.
Company Warranty. Company warrants and represents that all services provided under this Agreement will be performed in a professional, workmanlike manner in accordance with generally accepted industry standards, Upon receipt by Company of Subscriber’s written notice of any breach of this warranty, Subscriber’s sole and exclusive remedy shall be for Company to use reasonable commercial measures at Company’s expense to re-perform or correct the performance or delivery of the services so that such services meet the standards set forth in this warranty.
Disclaimer of Other Warranties. THE SERVICES SHALL BE PROVIDED ON AN “AS IS” BASIS. USE AND RELIANCE ON THE SERVICES IS AT SUBSCRIBER’S OWN RISK. WITH THE EXCEPTION OF THE LIMITED WARRANTY STATED IN SECTION 8(b) ABOVE, COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE OR SATISFACTORY QUALITY,FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. IN PARTICULAR, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS THAT THE INFORMATION OR CONTENT SUPPLIED TO COMPANY OR ANY WEB PAGE CREATED BY COMPANY WILL BE ACCURATE AND CORRECT; THAT THE SERVICES WILL ACHIEVE THE RESULTS OR GENERATE THE NEW PATIENTS THAT SUBSCRIBER WAS SEEKING, EITHER ON A SHORT-TERM OR LONG-TERM BASIS; OR THAT ANY WEB PAGE HOSTING SERVICE OR CALLING SERVICE WILL OPERATE ON A CONTINUOUS, UNINTERRUPTED, ERROR-FREE, SECURE BASIS WITHOUT TECHNICAL GLITCHES. COMPANY DISCLAIMS ANY AND ALL WARRANTIES RESPONSIBILITY FOR SUBSCRIBER’S COMPLIANCE WITH ANY APPLICABLE LAWS IN THE USE OF ANY SERVICE OFFERED BY COMPANY
Consequential Damages. COMPANY SHALL IN NO EVENT BE LIABLE TO SUBSCRIBER FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF DATA OR PROFITS, LOSS OF BUSINESS OPPORTUNITIES, COSTS OF PROCUREMENT OR REPLACEMENT GOODS AND SERVICES, COVER, OR RELIANCE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF THE SERVICES, OR THE DELIVERY OF THE DELIVERABLE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, THIRD PARTY CLAIMS, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY EXCLUSIVE REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CONSEQUENTIAL DAMAGES; THIS SECTION APPLIES ONLY TO THE EXTENT AVAILABLE BY APPLICABLE LAW.
Limitation of Liability. Company’s total cumulative liability to Subscriber from all causes of action and under all theories of liability shall be limited to the total amount of fees payable to Company in the year immediately preceding the event from which arises the claim. This limitation shall apply notwithstanding the failure of the essential purpose of any remedy thereunder.
Indemnification. Subscriber agrees to indemnify and hold Company and its officers, directors, subsidiaries, affiliates, successors, agents, service providers, suppliers and employers harmless from any third party claim or demand arising from (a) a material breach of any term or condition of this Agreement (b) a negligent or intentional act or omission by Subscriber and any Subscriber employee or independent contractor, including any failure to perform any obligation set forth herein or (c) furnishing any content or information to Company for use in Company’s marketing efforts which is inaccurate, infringes, or violates any third party’s rights, misstates Company’s relationship to any third party, or is provided without the appropriate release or authorization.
Entire Understanding. This Agreement contains the entire understanding of the Parties with respect to the subject matter contained herein, and shall supersede all prior agreements and understandings, whether written or oral, between the Parties. In the event of any conflict between this Agreement and the Terms of Service for the Doctor.com website, the terms of this Agreement shall control.
Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to conflicts of law principles. The Parties hereby expressly consent to personal and exclusive jurisdiction of the state and federal courts for New York City, New York.
Severance. If any provision of this Agreement is held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining provisions shall not be affected by such holding. The Parties agree to negotiate and amend in good faith such provision in a manner consistent with the intentions of the Parties as expressed in the Agreement, if any invalid or unenforceable provision affects the consideration of either Party.
Modifications and Additions. No modifications or additions to the terms and conditions of this Agreement shall be binding unless in writing and signed by both Parties.
Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Neither Party may assign the terms or conditions of this Agreement to a third party except upon the prior written consent of the other Party.
Notices. All notices provided in connection with this Agreement will be in writing, and will be delivered by (i) certified or registered mail, postage prepaid and return receipt requested or (ii) courier and will be deemed effective upon receipt by the authorized representative and the address set forth above, or at such other addresses as the Parties may designate by written notice to each other.
Waiver. No waiver by either Party of any breach of this Agreement, no matter how long continuing or how often repeated, shall be deemed a waiver of any subsequent breach thereof, nor shall any delay or omission on the part of either Party to exercise any right, power, or privilege hereunder be deemed a waiver of such right, power, or privilege.
Effective Date. These Terms of Service were last modified on May 1, 2015.