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.
“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 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.
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.
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
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.
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.
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.
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.
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.
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.