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MARKETING SERVICES SUBSCRIPTION AGREEMENT

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 127 W 26th Street 10th Floor, New York, NY 10001 (“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:

  1. Client Onboarding Process. Upon execution of the Insertion Order, Company will begin the following implementation of the marketing services:

    1. 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.  

    2. 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.

  2. Marketing Services.  Following the completion of the implementation process, Company will perform the services on Subscriber’s behalf indicated on the Insertion Order:

    1. Doctor.com Core Service. Subscribers who sign up for Core will have access to the following services:

      1. 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.

      2. ProfileSync 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.

      3. Doctor.com SiteEnhance. Company will develop, provision, and support a embeddable website object (“SiteEnhance Widget”) that Subscriber may implement into any website it owns.. The SiteEnhance Widget displays reviews collected through the ReviewHub Kiosk Service, and, at Subscriber’s option, can enable additional functionality on Subscriber’s website such as the ability to capture appointment requests from patients and the ability to display a special “mobile-friendly” webpage to visitors who access Subscriber’s website via a mobile device.. Subscriber is solely responsible for the implementation of the SiteEnhance Widget and for maintaining the uptime and performance of Subscriber’s website.

      4. Review Monitoring. Company will collect reviews written about Subscriber’s practice on various websites and make such reviews available for Subscriber to view within the Doctor.com platform.

    2. 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:

      1. 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.

      2. 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.

      3. 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:

        1. 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.

        2. 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 its practice.

  3. Performance Reporting. Subscriber will have regular access to an online dashboard that contains reports on key metrics related to the services in which they are enrolled. Examples of metrics available in such reports include:  the number of reviews collected via Subscriber’s ReviewHub Kiosk and the number of online appointment requests received by Subscriber’s practice. In addition, Company will periodically send Subscriber updates relating to Company’s other efforts on Subscriber’s behalf, such us the status of online listings being claimed and optimized as part of the ProfileSync service.. 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.

  4. Fees and Payments: Subscriber will be responsible for the payment of the following:

    1. Setup and Membership Fees.  Upon execution of the Insertion Order, Subscriber  shall pay the Setup and membership fees listed in the Insertion Order.

    2. 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 according to the Billing Interval outlined on the Insertion Order.

    3. Payments.  All payments will be billed automatically to the credit card on file with Company. Company accepts Visa, Mastercard, or American Express.

  5. 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 thirty (30) 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 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).

  6. 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.

  7. Warranty and Liability.

    1. 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.

    2. 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.

    3. 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

    4. 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.

    5. 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.

  8. Indemnification.  Subscriber agrees to indemnify and hold Company and its officers, directors, subsidiaries, affiliates, successors, agents, service providers, suppliers, and employees 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.

  9. General.

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. 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.

    6. 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.

    7. 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.

  10. Effective Date. This Marketing Services Subscription Agreement was last modified on September 28, 2016.

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