General Terms and Conditions – Healthgrades Premium Profile
(a) Healthgrades Performance. Healthgrades will perform the Services in a professional and workmanlike manner and in material compliance with these terms and conditions, the applicable Description of Service, and the applicable Order Form (collectively, “Agreement”).
(b) Customer Assistance. Customer will provide, at Healthgrades’ written request, reasonable assistance to Healthgrades during its performance of the Services. Customer will promptly deliver to Healthgrades all data, graphics, animation, art work, photographs, text, audio recordings, video or film recordings or other materials or information Healthgrades (“Content”) required for the performance of the Services. Healthgrades will not be responsible for delays, errors, costs or expenses caused by Customer’s provision of inaccurate or incomplete Content or failure to provide such reasonable assistance to Healthgrades in the performance of its Services. As between Customer and Healthgrades, (i) Customer is solely responsible for the accuracy and completeness of all Content provided by Customer to Healthgrades and (ii) Healthgrades is solely responsible for the accuracy and completeness of all data and content provided by Healthgrades to be included on a website owned and/or operated by Healthgrades (“Site”) and any portion thereof.
(c) Ownership. Healthgrades retains all right, title and interest in and to Services and all intellectual property rights embodied therein, including any such rights created in connection with the Services. As between Customer and Healthgrades, Customer shall retain all right, title and interest in all materials provided to Healthgrades by Customer, such as the Content, and including without limitation logos, trade names and other intellectual property of the Customer, subject to the license rights of Healthgrades in and to such materials as set forth in the Agreement; provided, however, that any information received from an individual healthcare provider practicing in an Approved Specialty, as defined in the Order Form, who is either employed by Customer or is a partner in Customer’s healthcare practice group, and who has been designated by Customer as participating in the Services (“Designated Provider”), or otherwise under a Physician User Agreement, even if redundant with information received from Customer, shall not be deemed to be materials provided to Healthgrades by Customer.
Customer will pay to Big Magic, Inc. all undisputed Fees, as defined in the Insertion Order. If Customer in good faith disputes any Fees invoiced, Customer will send written notice to Healthgrades and promptly after receipt of such notice the parties will work together in good faith to resolve such dispute and upon resolution of the dispute, if disputed Fees are actually owed to the Company, Customer will pay such Fees. Regarding any invoice received by Customer from Healthgrades hereunder with respect to which Customer has a dispute, Customer must submit to Healthgrades, in writing, the details and nature of the dispute within thirty (30) days after Customer’s receipt of the invoice in electronic or hardcopy (mailed) form. All invoices with respect to which no written notice of dispute has been provided to Healthgrades by Customer are final after such thirty (30) day period. All fees shall be paid in U.S. dollars, and, except as set forth in Section 6(a), are non-refundable. Any late payment of undisputed Fees will accrue interest at the rate of the lower of: (x) one-half of one (0.5%) percent per month; or (y) the maximum rate allowed by law, until paid in full. Customer shall pay to Healthgrades collection costs, including reasonable attorneys’ fees, incurred in connection with collecting undisputed Fees that remain unpaid by Customer after written notice of such failure. Customer shall pay all sales, use or other taxes (other than taxes on the income of Healthgrades) that may be assessable on Customer under applicable law in connection with this Agreement. Customer will pay such taxes or provide to Healthgrades an applicable certificate of exemption acceptable to the appropriate taxing authorities. If Customer is required under applicable law to withhold any taxes from the Fees payable under this Agreement, then Customer shall (i) withhold such taxes, (ii) pay such withheld taxes to the applicable taxing authority and (iii) provide to Healthgrades evidence of such payment to the taxing authority.
Within thirty (30) days of signing this Agreement, Customer will provide Healthgrades the invoice entity name, address, and a point of contact in Customer’s accounts payable function assigned to the account and, if applicable, a purchase order number for invoicing.
(a) Healthgrades’ Rights. Except as provided in Section 3(b) below, Customer acknowledges that as between Customer and Healthgrades all patents, copyrights, trade secrets or other proprietary rights in or to the Services, including, but not limited to (to the extent protectable by intellectual property laws) (i) the selection, sequence, and arrangement of Content by Healthgrades; (ii) any ideas, concepts, inventions, techniques, processes, and methodologies that Healthgrades may use, conceive or first reduce to practice in connection with the Services and (iii) the Third-Party Components, are and will be the exclusive property of Healthgrades or its licensors. Nothing in this Agreement will be deemed to prevent Healthgrades from using any of Healthgrades ideas, concepts and intellectual property rights used in or incorporated in the Service or the Third-Party Components, in and for creating services for other third parties. Customer acknowledges that the Services are valuable and proprietary products of Healthgrades that are protected by law, including but not limited to U.S. and international copyright law, trademark law and patent law, and Customer agrees not to engage in any activity that would constitute infringement on the intellectual property rights of Healthgrades with respect to the Services. Except as otherwise provided herein, Customer may not reproduce, re-engineer, create derivative works of, distribute, publicly perform or publicly display the Services or any portion thereof without Healthgrades’ prior written consent. Customer’s obligations under this Section shall expressly survive termination or expiration of this Agreement.
(b) Customer’s Rights. Healthgrades grants Customer the non-exclusive, non-transferable, limited right to use the Services solely for Designated Providers and to offer the Services to the Designated Providers. Customer will not make the Services available to any third party other than the Designated Providers without the prior written approval of Healthgrades, and will not use or offer the Services to or for any other entity. With respect to Content developed by Customer for the Designated Providers that is provided by Customer to Healthgrades hereunder and that has been specifically identified in a writing from Customer to Healthgrades as Customer-developed Content (“Customer Developed Content”), Customer hereby grants to Healthgrades a worldwide, royalty-free, license, during the term of Customer’s agreement with the applicable Designated Provider, to use, reproduce, create derivative works of, distribute, publicly perform, and publicly display such Customer Developed Content solely in connection with and as necessary to provide the Services. Any such license shall terminate upon the expiration or earlier termination of this Agreement.
(a) Services. Healthgrades represents and warrants that Healthgrades will perform the Services in a professional and workmanlike manner and in compliance with the terms and conditions in this Agreement. Healthgrades shall not be liable for any loss, cost or damage that results from inaccurate Content supplied by Customer and shall have no obligation to verify the accuracy of such Content. Healthgrades shall have no liability for any loss, cost or damage that results from problems caused by disruptions, errors or performance problems in the Internet or Healthgrades’ Internet services provider or other events beyond Healthgrades’ reasonable control.
(b) Disclaimer. AS BETWEEN HEALTHGRADES AND CUSTOMER, THE THIRD-PARTY COMPONENTS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. IF HEALTHGRADES HAS THE RIGHT TO PASS THROUGH TO CUSTOMER WARRANTIES MADE BY THIRD-PARTY SUPPLIERS WITH RESPECT TO THE THIRD-PARTY COMPONENTS, HEALTHGRADES WILL PASS THROUGH SUCH THIRD-PARTY SUPPLIER WARRANTIES. ANY AND ALL SUCH WARRANTIES WILL RUN DIRECTLY BETWEEN CUSTOMER AND THE RESPECTIVE THIRD-PARTY SUPPLIERS. EXCEPT AS SET FORTH IN SECTION 4(a) ABOVE, HEALTHGRADES HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. The foregoing disclaimers set forth in this Section 4(b) with respect to Third-Party Components shall not modify or limit the express representations, warranties or covenants set forth in this Agreement with respect to non-Third-Party Components.
(a) Healthgrades Indemnity. Healthgrades will defend, indemnify and hold harmless Customer, its officers, directors, successors and assigns from and against any third-party claim, action, suit, proceeding or demand (a “claim”) alleging that the Services or the Site infringe, misappropriate or violate any patent, copyright, trade secret or other proprietary or intellectual property right of a third-party and Healthgrades will pay any damages finally awarded against Customer from any such claim and pay any settlement amount to settle any such claim, so long as Customer (i) notifies Healthgrades promptly upon learning of the claim and concluding that it is a claim subject to the defense and indemnity provided in this Section, and (ii) provides Healthgrades with sole control over the defense or settlement of the claim and, at Healthgrades cost and expense, provides Healthgrades such information and assistance to defend or settle the claim as Healthgrades may reasonably request. If a claim described above may be or has been asserted, Customer will permit Healthgrades, at Healthgrades’ option and expense, but in any event the same option as is exercised by Healthgrades for its other customers receiving services from Healthgrades substantially similar to the Services for which a claim of infringement has been received, to (i) procure the right for Customer and its Designated Providers to continue using the Services and the Site, (ii) replace or modify the Services or Site to eliminate the infringement while providing functionally equivalent performance, or (iii) if (i) and (ii) above are not, in Healthgrades’ sole but commercially reasonable discretion, viable options, terminate the applicable Services. Healthgrades will not have any obligation to Customer under this Section if the alleged infringement claim results from (i) the Content, in whole or part, or (ii) the combination of the Site and/or the Service with other items not provided by or through Healthgrades, unless such items were required for the receipt and use of the Services and the Site. This Section sets forth Healthgrades’ exclusive liability to Customer and Customer’s exclusive remedy against Healthgrades with respect to any infringement claims.
(b) Customer Indemnity. Customer agrees to defend, indemnify and hold harmless Healthgrades from and against: (i) any third party claim that Healthgrades’ use of the Customer Developed Content supplied by Customer in accordance with the provisions of this Agreement constitutes infringement of or otherwise violates any patent, copyright, trade secret or other proprietary right; (ii) any Designated Provider claim that Customer did not have the right to provide Content to Healthgrades on a Designated Provider’s behalf; and (iii) any Designated Provider claim that Customer did not have the right to suspend, or to request that Healthgrades suspend, the Services for such Designated Provider’s failure to pay Customer in accordance with the agreement between Customer and such Designated Provider and, in each such event, Customer will pay any damages finally awarded against Healthgrades from any such claim so long as Healthgrades (y) notifies Customer promptly upon learning of the claim and concluding that it is a claim subject to the defense and indemnity provided in this Section, and (z) provides Customer with sole control over the defense or settlement of the claim and such information and assistance, at Customer’s cost and expense, to defend or settle the claim as Customer may reasonably request. Customer will not have any obligation to Healthgrades under this Section 5(b) to the extent the alleged infringement claim results in whole or in part from an infringement as contemplated under Section 5(a). This Section sets forth Customer’s exclusive liability to Healthgrades and Healthgrades’ exclusive remedy against Customer with respect to any claims that are the subject matter of this Section 5(b).
Healthgrades and Customer acknowledge that each party may have access to certain of the other party’s confidential and proprietary information and trade secrets (“Information“) in connection with this Agreement. For purposes of this Agreement, “Information” means non-public information including, without limitation (a) business or technical information of a party, including, without limitation, information relating to a party’s software, documentation, source code, object code, modifications to the foregoing, (b) designs, costs, finances, marketing plans, business opportunities, personnel, research, development, know-how; (c) any information designated “confidential” or “proprietary” or which, under the circumstances, should reasonably have been understood to be confidential, proprietary or trade secret information of the disclosing party, and (d) the terms and conditions of this Agreement (including, without limitation, the fees and charges set forth in this Agreement). “Information” does not include information the receiving party can prove (a) is in the public domain or is generally publicly known through no improper action or inaction by the receiving party; (b) was rightfully in the receiving party’s possession or known by it prior to receipt from the disclosing party; (c) is rightfully disclosed without restriction to the receiving party by a third party; or; (d) is independently developed by the receiving party, or for the receiving party by third parties, without use of the Information of the disclosing party. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party’s Information. For purposes of this Agreement, the database architecture will be deemed to be Healthgrades’ Information. The Content will be deemed to be the Customer’s Information. Each party will use the other party’s Information solely to fulfill the purposes of this Agreement. Neither party will disclose, in whole or in part, the other party’s Information to any person, except as may be required by law or court order or to such party’s employees or agents who require access to fulfill the purposes of this Agreement and who are obligated to protect the Information from further use or disclosure. In no event will Customer disclose Healthgrades’ Information to any third party, including to any competitor or potential competitor of Healthgrades’ without Healthgrades’ prior written approval. Each party acknowledges that any unauthorized use or disclosure of the Information may cause irreparable damage to the other party for which money damages would be an insufficient remedy, and therefore the other party shall be entitled to seek injunctive relief to enforce this provision.
Subject to the last sentence of this Section 7, each party shall have the right to use the name of the other party as a reference in marketing materials for such party’s products and services, including (i) Healthgrades using Customer’s name in marketing Healthgrades’ services to other companies, and Customer agrees to act as a reference to such potential Healthgrades customers and (ii) Customer using Healthgrades’ name in marketing materials for Customer products and services.
Neither party shall use the other party’s name in any marketing material without such other party’s prior written approval, which will not be unreasonably withheld or delayed.
This Agreement may be terminated by the Customer in accordance with the Premium Profile Agreement.
Either party may terminate this Agreement immediately upon notice to the other party without prejudice to any other remedies, if
(i) the other party materially breaches any of its obligations under this Agreement and fails to remedy such breach within thirty (30) days after the non-breaching party demands such cure, or
(ii) the other party becomes insolvent or bankrupt, assigns all or a substantial part of its business or assets for the benefit of creditors, permits the appointment of a receiver for its business or assets, becomes subject to any legal proceeding relating to insolvency, reorganization or the protection of creditors’ rights or otherwise ceases to conduct business in the normal course.
Upon the expiration or termination of this Agreement for any reason, Customer will promptly pay Healthgrades the Fees that are due and outstanding as of the date of such termination for the Services that Healthgrades has performed prior to the date of the termination.
The provisions of Sections 2, 3(a), 5, 6, 8, 10, 11, 12, 13 and 14 of this Exhibit “B” will survive the expiration of this Agreement or its termination for any reason.
9. Changes to Program. Healthgrades reserves the right to modify or discontinue the Program in its sole discretion upon thirty (30) days’ notice to Customer. To the extent the Program is discontinued, Healthgrades will refund a prorated portion of the Fees to Customer. To the extent the Program is materially modified, Customer may terminate this Agreement by providing written notice to Healthgrades not less than 10 days prior to the effective date of such modification.
10. NO CONSEQUENTIAL DAMAGES.
UNDER NO CIRCUMSTANCES WILL HEALTHGRADES OR ITS RELATED PERSONS OR SUPPLIERS BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF CUSTOMER OR ITS SUPPLIERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE WORK PRODUCT, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPLEMENTATION OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
EXCEPT FOR DAMAGES ARISING OUT OF HEALTHGRADES’ DISCLOSURE OR USE OF CUSTOMER’S CONFIDENTIAL INFORMATION IN VIOLATION OF HEALTHGRADES’ CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL THE AGGREGATE LIABILITY THAT HEALTHGRADES AND ITS RELATED PERSONS AND SUPPLIERS MAY INCUR IN ANY AND ALL ACTIONS OR PROCEEDINGS EXCEED, IN THE AGGREGATE, THE GREATER OF: (I) THE TOTAL AMOUNT THAT HEALTHGRADES ACTUALLY RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT; OR (II) FIFTY THOUSAND DOLLARS ($50,000).
11. Access to Records.
Upon the written request of the Secretary of Health and Human Services, the Comptroller General of the Government Accounting Office, or their authorized representatives, Healthgrades shall make available all contracts, books, documents and other records necessary to verify the nature and extent of the costs of providing services under this Agreement. Such inspection shall be available for a period of four (4) years after the furnishing of Services hereunder. If Healthgrades carries out any of the duties of this Agreement through a subcontract with a related organization with a value of $10,000 or more over a twelve (12) month period, Healthgrades agrees to include this requirement in any such subcontract. No attorney-client, accountant-client, or other legal privilege will be deemed to have been waived by Customer or Healthgrades by virtue of this Agreement.
Healthgrades and Customer each represent and warrant to the other party that they and their respective representatives, (i) are not currently excluded, debarred, or otherwise ineligible to participate in the federal health care programs, (ii) have not been convicted of a criminal offense related to the provision of healthcare items or services and (iii) are not under investigation or otherwise aware of any circumstances which may result in a party or any of the party’s representatives being excluded from participation in federal healthcare programs.
Any dispute that might arise between Healthgrades and Customer relating to this Agreement or the parties relationship that has not been cured within the time permitted by this Agreement shall be settled by final and binding arbitration in accordance with the then prevailing Commercial Arbitration Rules of the American Arbitration Association (“AAA“), except where those rules conflict with this provision, in which case this provision controls. Arbitration shall be conducted before a single arbitrator unless the amount in dispute exceeds $250,000. If the amount in dispute exceeds $250,000, it shall be decided by three arbitrators, one independent arbitrator to be selected by each party and the two-party appointed arbitrators to agree upon the third. Under no circumstances are the arbitrators authorized to award damages contrary to the No Consequential Damages provision of this Agreement. The arbitration shall be held in a mutually agreed upon location. Absent the written agreement of the parties, or an order by the arbitrator(s) based upon compelling evidence of need, there shall be no discovery in the arbitration. The arbitrator(s) shall be authorized to award costs and attorney’s fees or to allocate them between the parties. Any court with jurisdiction shall enforce this clause and enter judgment on any award. Healthgrades and Customer will agree upon, within 45 days after arbitration is initiated or, if they fail to agree, the AAA will design, procedures that they will follow to assure that the arbitration will be concluded and the award rendered within a target time frame of no more than four (4) months from selection of the arbitrator(s). Nothing in this section is intended to prevent either party from obtaining interim injunctive relief in any court of competent jurisdiction.
Customer and Healthgrades are independent contractors. Nothing in this Agreement will be construed to make either party an agent, employee, joint venturer, partner or legal representative of other party.
Any notice or approval required or permitted under this Agreement will be given in writing and will be sent by telefax, courier or mail, postage prepaid, to the address specified on the cover page to this Agreement or to any other address that may be designated by prior notice.
This Agreement shall be deemed to have been made in, and all matters arising out of or relating to this Agreement shall be construed and governed by the laws of, the United States of America and the State of New Jersey, without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any legal action or proceeding relating to this Agreement shall be instituted in (a) the state courts in the State of New Jersey, or the United States District Courts, located in Newark, New Jersey (b) before an arbitration panel as specified above, and the parties consent to such nonexclusive jurisdiction and venue and waive any objection to jurisdiction or venue in such courts.
Neither party may assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without the other party’s prior approval. Notwithstanding the foregoing, either party may assign this Agreement without such consent, upon written notice to the other party, to a related or unrelated person in connection with a sale, consolidation or other reorganization of its business, in whole or in part, including a sale of all or substantially all of its assets or by merger. Further, Healthgrades shall have the right to utilize subcontractors to perform its obligations under this Agreement.
Any waiver, amendment or other modification of this Agreement or its Exhibits will not be effective unless in writing and signed by the party against whom enforcement is sought.
Customer agree that the terms and conditions of this Agreement shall remain strictly confidential, provided that Customer may disclose such information to its attorneys, accountants and to investors, lenders and potential acquirers subject to appropriate non-disclosure terms and conditions at least as protective as those contained in this Agreement.
This Agreement and its Exhibits constitute the complete and exclusive statement of the terms, conditions and representations of the agreement between Healthgrades and Customer with respect to the Services and the subject matter of this Agreement and supersedes all prior or simultaneous, written or oral negotiations, representations, correspondence, understandings and agreements between the parties with respect to the subject matter hereof.
If any provision of this Agreement is held to be unenforceable, this holding will not affect the validity of the other provisions of this Agreement.
Neither party will be liable for any failure or delay in performing an obligation under this Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, governmental acts or omissions, laws or regulations, labor strikes or difficulties, transportation stoppages.
Call Tracking Addendum
Healthgrades reserves the right in its sole discretion to deny or remove any Designated Provider from the Call Tracking Service. Healthgrades reserves the right to discontinue the Call Tracking Service in any time at its sole discretion.
Healthgrades represents and warrants that, to the extent it utilizes subcontractors in the performance of the Call Tracking Service, it will sign a subcontractor BAA no less restrictive than the BAA attached hereto, with any such third party provider who may have access to PHI hereunder.
Updates November 22, 2019