PROVIDER TERMS AND CONDITIONS
These Provider Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the DocGiv Provider Agreement between the DocGiv and Provider (collectively, the “Agreement”). DocGiv, subject to the provisions of this paragraph, may amend the Terms and Conditions in its sole discretion and at any time. The most recent version of the Terms and Conditions (as may be amended by the DocGiv from time to time) will be available: (i) on the DocGiv platforms, and/or (ii) as part of the DocGiv Provider Newsletter. Provider agrees that either or both of these notification methods constitute adequate notice to inform Provider of any amendments to the Agreement and Provider further agrees to be bound by any such amendments to the Agreement upon such notification.
DEFINITIONS
“PROVIDER OFFERING” means the services to be provided by the Provider, stated on the Voucher as presented by DocGiv. Values determined by Provider. “MAXIMUM NUMBER OF VOUCHERS” means the maximum number of Vouchers the DocGiv is authorized to administer the sale of on behalf of the Provider. “MONTHLY MAXIMUM NUMBER OF VOUCHERS” means the maximum number of Vouchers the DocGiv is authorized to administer the sale of on behalf of Provider each month after the Maximum Number of Vouchers has been sold. “FULL OFFER VALUE” means the value of the Provider Offering. “AMOUNT PAID” means the non-refundable amount a purchaser pays DocGiv for each Voucher. “PROMOTIONAL VALUE” means the amount the purchaser must pay the Provider for the Provider Offering, as stated on the Voucher as presented by DocGiv. Values determined by Provider. “PROMOTIONAL VALUE EXPIRATION DATE” means 30 days from the date of purchase. “FINE PRINT” means the conditions and restrictions concerning Voucher redemption and the Provider Offering stated on the DocGiv platforms and Voucher.
1. VOUCHER PROGRAM
DocGiv is authorized to promote and sell Vouchers on Provider’s behalf subject to the terms of this Agreement and the “Terms of Sale”. The Voucher will evidence the Provider Offering and will be sent to the purchaser electronically once payment is received. The purchaser will then redeem the Voucher with the Provider by presenting the Voucher in paper or electronic form and paying the Provider the Promotional Value stated on the Voucher. Provider is the issuer of the Vouchers and seller of the Provider Offering. If there is a conflict between this Agreement and the Terms of Sale, the Agreement controls.
Provider agrees that in providing the Provider Offering, Provider will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Voucher, including the Fine Print. Unless disclosed in the Fine Print, Provider further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-DocGiv patients.
DocGiv is authorized to promote and sell Vouchers on Provider’s behalf through any of its platforms. The Vouchers may be offered to all or part of DocGiv’s subscriber base. The features may be offered through a variety of distribution channels, including, the Internet, the Website, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by DocGiv.
If Provider performs background checks on its employees, agents and/or independent contractors performing services, Provider shall provide the results of such background checks to DocGiv upon request. Provider shall obtain the necessary consent to share with DocGiv the results requested.
Provider shall promptly notify DocGiv any time it receives a complaint related to potentially criminal conduct, including allegations of sexual assault, allegedly engaged in by any of its employees, agents or independent contractors, regardless of whether a DocGiv customer makes the complaint.
DocGiv is authorized to promote and sell up to the Maximum Number of Vouchers in multiple markets and on dates in its discretion. Provider shall specify the Maximum Number of Vouchers and, if applicable, specify the Monthly Maximum Number of Vouchers, and may increase either number in its discretion.
DocGiv reserves the continuing right to reject, revise, or discontinue any Provider Offering, at any time and for any reason in DocGiv‘s sole discretion, and to terminate the Provider Offering and to remove all references to the Provider Offering and Voucher from its platforms; and redirect or delete any URL used in connection with the Provider Offering.
Provider shall honor the Vouchers for the Provider Offering through the Promotional Value Expiration Date. After the Promotional Value Expiration Date, PROVIDER AGREES TO REDEEM OR REFUND THE VOUCHER FOR THE AMOUNT PAID INDEFINITELY.
After the Promotional Value Expiration Date, Provider must always allow the purchaser to redeem the Voucher for the Amount Paid for the Voucher. If the services constituting the Provider Offering and stated on the Voucher are no longer available, or the customer does not qualify for the service, the Provider must always allow the purchaser to redeem the Voucher toward any services then offered by the Provider equivalent to at least the Amount Paid.
Partial redemptions: If applicable, and if a purchaser redeems a Voucher for less than the Amount Paid, the Provider is responsible for handling any unredeemed value as required by applicable law.
Provider agrees that in providing the Provider Offering, Provider will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Voucher, including the Fine Print. Unless disclosed in the Fine Print, Provider further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-DocGiv patients.
Provider agrees that so long as an appointment is made to redeem a Voucher, or purchaser has made an attempt to make an appointment, before the Voucher’s Promotional Value Expiration Date, the Voucher will be honored for the Full Offer Value without restriction, even though the services may be provided after the Promotional Value Expiration Date.
Provider is responsible for all customer service in connection with the Provider Offering and for supplying all services stated in the Provider Offering.
2. PAYMENT
If Provider offers a Voucher with a $0.00 Promotional Value DocGiv will bill the Provider a non-refundable fee for promoting and selling the Voucher. DocGiv will not bill the Provider for promoting and selling a Voucher with a Promotional Value greater than $0.00.
If Provider offers a Voucher with a $0.00 Promotional Value DocGiv will bill the Provider a non-refundable fee for promoting and selling the Voucher. DocGiv will not bill the Provider for promoting and selling a Voucher with a Promotional Value greater than $0.00.
Provider will not attempt to bill or collect reimbursement from any third-party payor, including but not limited to any insurer, health insurance plan, Medicare, Medicaid, or any other federal, state, provincial, territorial or local governmental program or entity (“Third-Party Payor”), for any of Provider’s services. Provider will accept the amounts received from patient as payment in full for all services provided by Provider delivered pursuant to the Provider Offering. Provider is solely responsible for complying with any contractual requirements imposed by its contracts with Third-Party Payors, including but not limited to requirements related to offering discounted services.
Tax Levy. In the event Provider receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Provider, DocGiv may, in accordance with applicable law, deduct any such amounts from payments due to Provider.
Taxes Generally. It is Provider’s responsibility to determine what, if any, taxes apply to the payments Provider makes or receives, and it is Provider’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. DocGiv is not responsible for determining whether taxes apply to Provider’s transaction with either purchasers or DocGiv, or for collecting, reporting or remitting any taxes arising from any transaction with or by Provider and purchaser. Provider may be asked to provide DocGiv with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Provider’s name for the value of payments made. Notwithstanding anything else in this Agreement, Provider shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Provider is required to be so registered in connection with the Provider Offering and pursuant to the terms and redemption of the Voucher, and shall be responsible for paying any and all sales, use or any other taxes related to the Provider Offering or services.
3. CUSTOMER DATA RESTRICTIONS
“Customer Data” means all identifiable information about purchasers generated or collected by DocGiv, including, but not limited to, purchasers’ name, mailing addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.
DocGiv may disclose Customer Data, such as name, phone numbers, address, and email addresses, to providers after a voucher is purchased for the purpose offacilitating appointment scheduling. When such information is disclosed to or used by Providers for facilitating appointment scheduling, such disclosure and use shallbe in compliance with the Business Associate Agreement between DocGiv and Provider, Provider’s privacy policy and state and federal law.
4. TERM AND TERMINATION
This Agreement will continue in effect until terminated by either party in accordance with this Section (“Term”). DocGiv is authorized to terminate this Agreement, at any time for any reason, upon written notice to Provider. Provider is authorized to terminate this Agreement at any time with written notice to DocGiv. Termination of this Agreement will not in any way affect Provider’s obligation to redeem any Vouchers issued prior to termination in accordance with the terms of this Agreement, including the obligation to honor the Voucher for the Amount Paid after the Promotional Value Expiration Date. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.
5. COMPLIANCE WITH GIFT CARD, GIFT CERTIFICATE AND ABANDONED PROPERTY LAWS
Provider agrees to comply with the Voucher terms and conditions as stated on the platforms, including but not limited to the “Terms of Use,” and to ensure that the Vouchers comply with all laws that govern vouchers, gift cards, coupons, and gift certificates, including but not limited to the United States Credit CARD Act of 2009 (if applicable) and any laws governing the imposition of expiration dates, service charges or dormancy fees and all Fine Print related to the Provider Offering stated on the Voucher. Provider is solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws. Upon written request from Provider, but only when required, DocGiv will provide Provider with information in DocGiv’s possession that the Provider needs to comply with its obligations under this Agreement. Provider agrees that, regardless of the payment terms, Provider, and not DocGiv, maintains any obligation for unredeemed Vouchers under applicable escheat or abandoned or unclaimed property laws.
MARKETING
DocGiv and its business partners may communicate with Provider with regard to products, promotions, and other services that may be of interest to Provider. This may include email or other communications. DocGiv may also solicit Provider’s opinion for market research purposes.
7. INTELLECTUAL PROPERTY RIGHTS
Provider grants to DocGiv a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Provider’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Provider (collectively, “Provider IP”); and (b) any third party’s name , logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Provider (collectively, “Third Party IP”), in each case in connection with the promotion, sale/resale (as may be applicable) or distribution of the Provider Offering in all media or formats now known or hereinafter developed (“License”). Any use of the Provider IP or Third Party IP as contemplated in this Agreement is within DocGiv’s sole discretion.
Provider acknowledges and agrees that, as between the parties, DocGiv owns all interest in and to the platforms, Customer Data, DocGiv trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the platforms, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by DocGiv or at DocGiv’s direction, or assigned to DocGiv, and any materials, software, technology or tools used or provided by DocGiv to promote, sell/resell (as may be applicable) or distribute the Provider Offering and conduct its business in connection therewith (collectively “DocGiv IP”). Provider shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place, shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the DocGiv IP or any portion thereof, or use such DocGiv IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that DocGiv grants Provider a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of DocGiv’s mobile provider software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Provider shall keep the DocGiv IP confidential, and shall not prepare any derivative work based on the DocGiv IP or translate, reverse engineer, decompile or disassemble the DocGiv IP. Provider shall not take any action to challenge or object to the validity of DocGiv’s rights in the DocGiv IP or DocGiv’s ownership or registration thereof. Except as specifically provided in this Agreement, Provider and any third party assisting Provider with its obligations in this Agreement, are not authorized to use DocGiv IP in any medium without prior written approval from an authorized representative of DocGiv. Provider shall not include any trade name, trademark, service mark, domain name, social media identifier, of DocGiv or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Provider shall not use or display any DocGiv IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Provider or a third party and DocGiv. All rights to the DocGiv IP not expressly granted in this Agreement are reserved by DocGiv.
If Provider provides DocGiv or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a DocGiv product or service or otherwise in connection with this Agreement, any DocGiv IP, or Provider’s participation in the Provider Offering or Voucher, (collectively, “Feedback”), Provider irrevocably assigns to DocGiv all right, title, and interest in and to Feedback. In the event your assignment to DocGiv is invalid for any reason, you hereby irrevocably grant DocGiv and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Provider warrants that: (A) Feedback is Provider’s original work, or Provider obtained Feedback in a lawful manner; and (B) DocGiv and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Provider agrees to provide DocGiv such assistance as DocGiv might require to document, perfect, or maintain DocGiv’s rights in and to Feedback.
8. REPRESENTATIONS AND WARRANTIES
Provider represents and warrants that: (a) Provider has the right, power and authority to enter into this Agreement; (b) Provider, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Provider’s services will be provided; (c) the Voucher, upon being delivered by DocGiv, will be available immediately for redemption and Provider will have sufficient services available for redemption through the Promotional Value Expiration Date (i.e., a number of services sufficient to fulfill its redemption obligations in connection with the applicable Maximum Number of Vouchers); (d) the terms and conditions of the Voucher, including any discounts or services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any laws governing vouchers, gift cards, coupons, and gift certificates; (e) the Provider’s redemption of the Voucher will result in the bona fide provision of services by Provider to the purchaser; (f) Provider owns all interest in and to the Provider IP and has licensing rights in (with the right to sublicense to DocGiv) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Provider IP and the Third Party IP, the Provider Offering, DocGiv’s use and promotion thereof, and the results of such Provider Offerings, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (h) the Provider IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (i) the Vouchers and any advertising or promotion of Provider’s services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Provider and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Provider Offering to provide the services described in this Agreement; (k) Provider’s business information and payment information details as provided in this Agreement, indicating where payments should be received from are accurate and Provider is the authorized entity to submit payment of the funds to DocGiv; and (m) the Provider Offering is: (i) free from defects in workmanship, materials and design, (ii) merchantable and suitable for the purposes, if any, stated in the Agreement, and (iii) genuine, bona fide services, as described herein and does not violate the rights of any third party.
10. INDEMNIFICATION
To the extent allowed under applicable law, Provider agrees to defend, indemnify and hold DocGiv, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys’ fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Provider of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Provider arising from the sale and redemption of a Voucher; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) any claim arising out of a violation of any law or regulation by Provider or governing Provider’s services; (e) any claim by a purchaser or anyone else arising out of or relating to the services provided by Provider, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; (f) any claim by a purchaser for the Amount Paid; (g) any claim arising out of Provider’s misuse of Customer Data, or any violation of an applicable data privacy or security law; and (h) any claim arising out of Provider’s negligence, fraud or willful misconduct. DocGiv maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between DocGiv and Provider. Provider’s duty to defend and indemnify DocGiv includes the duty to pay DocGiv’s reasonable attorneys’ fees and costs, including any expert fees.
11. LIMITATION OF LIABILITY
EXCEPT FOR PROVIDER’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. DocGiv’S SOLE AND COMPLETE LIABILITY TO PROVIDER FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF ANY VOUCHER IS LIMITED TO THE AMOUNT OF FEES RECEIVED BY DocGiv. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
12. GOVERNING LAW
These Terms and Conditions and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of the State of Texas, United States.
b. Injunctive Relief/Attorneys’ Fees Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury. In the event DocGiv is the prevailing party in any Dispute, Provider shall pay to DocGiv all reasonable attorneys’ fees and costs incurred by DocGiv in connection with any Dispute.
13. INDEPENDENT CONTRACTOR
The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other in any way.
14. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
15. ASSIGNMENT
Provider is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without DocGiv’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of DocGiv. DocGiv is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Provider.
16. SEVERABILITY
If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.
17. WARRANTIES
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DocGiv DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH ITS PLATFORMS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE VOUCHERS ARE ERROR-FREE, OR THAT ANY PROVIDER OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR PROVIDER.
