Introduction In order for a doctor to phone or respond to a User’s text based messages within an hour or for a User to receive daily Health Tips, the User will be required to accept these terms and conditions, as well as the Standard Subscription Terms and Conditions applicable to all of the Dokita Services.
Dokita247, Inc. is a subscription-based electronic platform and medium for consumers to telephonically, electronically or digitally converse with a registered healthcare practitioner. If and to the extent a healthcare practitioner from a jurisdiction other than United States uses the Dokita Platform, such medical practitioner will likewise be registered and accredited within the jurisdiction in which he or she operates. Legal Basis The medico-legal relationship, if any, created by the doctor phoning you upon your request, or texting you in response to your text based message, is by and between you and the attending doctor. Age You represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into an agreement with the Dokita247, Inc. If you are under the age of 18, you must have your parents’ consent. To the extent the legal requirement for age of majority is greater than the age of 18, you represent and warrant that you are at least that age. Within Nigeria To the extent Dokita does not have a presence and/or offering in your country, and you are not within Nigeria, you are deemed to be within the Nigeria borders and under the jurisdiction of the Nigeria courts for any matter that may arise relating to Dokita. Disclosure of All Relevant Information These services are provided in good faith based upon the information given by you, during the phone call or text message. As such, you are required to disclose all relevant information, no matter how trivial, pertaining to your current health and past medical history that may have a bearing on the services to be so provided. Rights – YOUR CHOICE It is your right to ask the attending doctor any question, to solicit information of an educational nature to empower you with information to make an informed decision. Please note that by participating in any call or text-based interaction with an attending doctor you will be signifying your consent to participate in such call or receiving educational information only. The attending doctor cannot and will not diagnose you or offer treatment, and will merely give you guidance as to what the correct medical process would be if and to the extent of a particular condition. All calls will be recorded and kept confidential. All text based messages will be archived and kept confidential. However, if you participate in open group text-based forums or discussions, the information you divulge will, by its very nature, be publicly available and for all those participating to see; there being no confidentiality in open forums. Not a Substitute for in person medical care The service you receive is not clinical medical advice, but rather preventative healthcare information of an educational nature to empower you to make an informed decision and choice; it does not replace and is not intended to replace in person medical care, advice, instruction or treatment. As such, you are urged to immediately seek medical treatment if and to the extent the reason for your call persists. No warranty Dokita and the attending doctor
REVISED AS OF 01/01/2018
PHYSICIAN SERVICES AGREEMENT
This Services Agreement (this “Agreement”) is made and entered into effective as of January, 01, 2018 by and between Dokita247, Inc., a Delaware corporation registered as a foreign corporation in the state of Florida, with offices at 540 E McNab Road Suite C, Pompano Beach, Florida, 33060 (“Dokita247”), and [___________________, M.D, P.A., a _________ professional services corporation (“Company”), which employs] _____________, M.D. (“Physician”) who is a physician licensed to practice medicine in _______________. Dokita, [Company] and Physician may each be referred to herein individually as a “party” and collectively as the “parties.”
WHEREAS, Dokita has developed a proprietary information technology platform (the “Dokita Platform”) that provides individuals facilitated access to private pay, concierge health care services via electronic communication (“Telemedicine Services”) to subscribers throughout the United States and abroad (“Subscribers”), through arrangements with qualified health care providers; and
WHEREAS, [Company] [Physician] desires to contract with Dokita in order to permit Physician to provide Telemedicine Services to Subscribers, and Dokita desires to contract with [Company] [Physician] and to permit Physician to provide Telemedicine Services to Subscribers, on the terms and conditions set forth herein:
NOW THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Incorporation of Recitals. The recitals set forth above are incorporated herein in their entirety.
2. Professional Services.
a. Engagement. Dokita hereby retains [Company] [Physician], on a non-exclusive basis, to provide Telemedicine Services, which, subject to applicable state law, is defined as the provision of patient care, treatment or other services through the use of medical information exchanged from one site to another via electronic information and communication technologies, to Subscribers through the use of the Dokita Platform. Physician shall provide Telemedicine Services in compliance with the applicable law of each jurisdiction in which Telemedicine Services will be provided, including remote prescription of medications or devices, to the extent permitted by the law of each applicable jurisdiction, during the Term (as defined in Section 8 hereof). [Company shall retain Physician for the provision of Telemedicine Services, and] all services to be provided hereunder shall be provided by Physician, and no other person, except to the extent contemplated by Section 5.a hereof. [References in this Agreement to either Company or Physician shall be deemed to also be a reference to the other unless the context requires otherwise.]
c. Scope and Limitations of Telemedicine Services. The medical services available to Subscribers as part of the Telemedicine Services contracted for hereunder are limited to such medical conditions as Physician, in his or her professional judgment, determines he or she can competently and ethically diagnose and treat given the limitations inherent in such a consultation in accordance, and as permitted by, applicable law. In situations where Physician determines that the use of Telemedicine Services is not conducive to accurate and complete diagnosis or treatment of a Subscriber, Physician shall not undertake to provide Telemedicine Services to such Subscriber.
d. Independent Contractor Status. It is expressly acknowledged by the parties hereto that Dokita, on the one hand, and [Company and] Physician, on the other hand, are “independent contractors” and nothing in this Agreement is intended nor shall be construed to create an employer/employee relationship, a joint venture relationship or partnership between Dokita and [Company or] Physician, or to allow Dokita to exercise control or direction over the manner or method by which [Company or] Physician perform the services that are the subject matter of this Agreement; provided, always, that the services to be furnished hereunder by Physician shall be provided in a manner consistent with the legal and ethical standards governing such services and the provisions of this Agreement. At no time shall [either Company or] Physician represent or hold themselves out to be an employee, agent, or servant of Dokita or to be providing services hereunder in other than a contractual capacity. [Company and] Physician understand and agree that: (i) Physician will not be treated as an employee of Dokita for federal tax purposes; (ii) Dokita will not withhold, on behalf of Physician, pursuant to this Agreement, any sums for income tax, unemployment insurance, social security or any other withholding pursuant to any law or requirement of any governmental body relating to Physician, or make available to Physician any of the benefits afforded to employees of Dokita; (iii) all of such payments, withholdings, and benefits, if any, are the sole responsibility of and shall be effected by Physician; and (iv) Physician shall indemnify and hold harmless Dokita from any taxes, interest, fines, and penalties imposed upon Dokita as a result of any determination by the Internal Revenue Service (“IRS“) or any other governmental agency that Physician is an employee of Dokita. In the event the IRS or any other governmental agency should question or challenge the independent contractor status of Physician, the parties hereto mutually agree that Physician and Dokita shall have the right to participate in any discussion or negotiation occurring with such agency or agencies, irrespective of by whom such discussions or negotiations are initiated.
3. Representations, Warranties and Covenants of Physician.
a. Treatment of Subscribers. Physician shall exercise independent medical judgment with respect to the diagnosis and treatment of Subscribers under his care, and shall render specialty services in accordance with generally accepted standards and methods in his specialty, and applicable federal and state laws, statutes and regulations. Physician shall provide Telemedicine Services only to Subscribers who are resident in states or countries, as applicable, in which Physician has a valid license to practice medicine, and otherwise in accordance with and as required by the laws of the jurisdiction in which a Subscriber is resident. Physician acknowledges and covenants that he or she will not render Telemedicine Services to Subscribers or any patients who are beneficiaries of federal healthcare programs, including without limitation, patients covered under the Medicare, Medicaid or Tricare programs, through the use of the Dokita Platform
b. Qualifications of Physician. Physician represents and warrants that he or she: (i) is licensed to practice medicine in the states in which he or she practices, including without limitation, the states in which he or she will provide Telemedicine Services, in accordance with the requirements of each state in which such services will be provided; (ii) is proficient in the use of technology necessary to perform medical consultations via telemedicine; (iii) is obligated to protect the privacy and security of personal or individually-identifiable health information under applicable state and federal laws and regulations, including, without limitation, HIPAA (as hereinafter defined); (iv) is trained in providing clinical consultations to patients; and (v) will not prescribe to any Subscriber or other patient, through or in connection with the use of the Dokita Platform, any controlled substances or narcotics, as defined by, or that are under the jurisdiction of, the United States Drug Enforcement Agency (“DEA”), or any other medications that are not permitted to be prescribed via telemedicine by applicable state and federal laws and regulations.
c. Licensure: Certification and Conditions of Participation: Representation. At all times during the Term, Physician will be duly licensed to practice medicine in the Country(ies), State(s), or Province(s) in which they medically licensed to practice in.
e. Non-Contravention of Contractual Obligations. Physician is not a party to or bound by any other agreement or commitment, or subject to any restrictions or agreement related to current or previous employment or independent contractor agreements containing confidentiality or non-compete covenants or other relevant restrictions that may have a resent resento r future adverse effect on Dokita or Physician in the performance of his or her duties under this Agreement;
f. Adverse Actions. Physician has never: (i) had his or her professional license, DEA registration number, Medicare or Medicaid number suspended, relinquished, terminated or revoked; (ii) been reprimanded, sanctioned or disciplined by any licensing board or any federal, state or local society or agency, governmental body, hospital, third party payor or specialty board; or (iii) had a final judgment or settlement without judgment entered against him in connection with a malpractice or similar action. There is no litigation or governmental or administrative proceeding or investigation (including without limitation, any malpractice claims, Department of Professional Regulation or Board of Medicine (or equivalent) investigation, suit, notice of intent to institute arbitration or other proceeding) pending with respect to Physician, nor has there occurred any event, nor does there exist any condition on the basis of which any such claim may be asserted;
g. Status. Physician is in good physical and mental health and does not suffer from any illness or disability that would prevent him or her from fulfilling his or her responsibilities under this Agreement;
h. Veracity of Representations. None of the representations or warranties made by Physician in this Agreement or in any interviews, references, resumes or curricula vitae submitted to Dokita or any applications contains or will contain any untrue statement of a material fact, or omits or will omit to state a material fact necessary in order to make the statements or provision in this Agreement not misleading or incomplete;
i. Reporting. Physician agrees to immediately notify Dokita of any fact or circumstance that occurs or is discovered during the Term, which in itself or with the passage of time and/or the combination with other reasonably anticipated factors does render or will render any of these 3representations..shallbeamaterialndwarbrantieseachoftothisbe untAgrueement.Failureand tocausenotiforyDokitaterminationinbyaccordanceDokita;with this Section
j. Obligation to Notify. Physician shall promptly notify Dokita of any inquiries, audits, investigations, complaints or disciplinary actions initiated or taken by any entity, governmental agency, insurer, health maintenance organization, or any other entity with respect to Physician;
k. Completion of Records. Physician shall prepare, complete, in a timely manner, and retain in compliance with applicable professional standards, all medical and other records for each Subscriber treated by Physician as may be required for treatment, medical records, reimbursement and billing purposes;
l. Professional Liability Insurance. Physician shall obtain and pay for, at his or her sole cost and expense, a “claims made” policy of ceptablel liability insurance (“Claims Made Insurance”) insuring Physician during the Term with limits of no less ce [$250,000 per claim and $750,000 in the cept aggregate] and with an insurance ceptab mutually ceptable to both Dokita and Physician; and
m. Continuing Insurance. Upon the expiration or termination of this Agreement for any reason or for no reason, if Physician is then insured under a claims-made professional liability insurance policy, Physician shall, at Physician’s own expense, obtain and maintain tail insurance or such other extended reporting endorsement or prior acts coverage having the same limits of coverage as the Claims Made Insurance that covers Physician and Dokita for claims made following the termination or expiration of this Agreement, but that relate to services rendered by Physician while an independent contractor of Dokita ("Continuing Insurance"). Such Continuing Insurance shall cover Physician for a period of not less than four (4) years from the effective date of termination or expiration of this Agreement. Physician shall maintain such Continuing Insurance through the procurement of subsequent policies that provide for a retroactive date of coverage to the Commencement Date, or by the procurement of an extended reporting endorsement ("Tail") applicable to the insurance coverage maintained during the Term. Physician shall, upon Dokita's request, provide proof of such Continuing Insurance. In the event Physician fails to purchase Continuing Insurance as specified herein, Dokita may, at its option, obtain such Continuing Insurance on Physician's behalf, and thereafter recover the costs thereby incurred from Physician by offset or deduction from any funds otherwise due Physician, in addition to any other rights and remedies available to Dokita. This Section 3.m. shall survive the expiration or termination of this Agreement.
4. Dokita Services.
a. General. Dokita will provide Physician access to, and the right to use, the services and capabilities of the proprietary Dokita Platform in connection with the delivery of Telemedicine Services to Subscribers. The Dokita Platform services and capabilities include, without limitation, the following:
(i) A credentialing process for all pre-credentialing of treating physicians (including licensure, DEA registration, background checks, primary source verification of medical training with an AMA profile, board certifications, etc.);
(ii) A comprehensive, customizable, electronic medical charting solution (“EMX”) that includes templates for medical, dental, physical therapy, pediatric development assessment and obstetrics and gynecology forms, with SOAP notes editor;
(iii) Detailed referral tracking;
(iv) One-click insurance verification that permits Physician to verify Subscriber insurance eligibility;
(v) A Subscriber wait time monitoring feature that provides accurate estimates of wait times for each Subscriber, that enables Physician to have an overview of patient flow, a work flow analysis and enhance operational control;
(vi) A Practice Management System (“PMS”) that includes a scheduling function, with the ability to collect and store Subscriber demographics in a manner that complies with meaningful use and medical home documentation requirements, and which integrates with a paper document scanning function; and
(vii) A billing function that includes batch encounter entry, bill scrubbing, and submission capabilities, as well as automatic payment posting from electronic remittance advice provided by payors.
b. E-Prescribing Services. [INSERT]
c. Other Services. [INSERT]
d. No Practice of Medicine. Dokita does not engage in the practice of medicine or provide any medical services. To the extent that any ccess service required or permitted to be rendered by Dokita by any provision of this Agreement may be construed or deemed to constitute the practice of medicine (as that term may be defined under the laws of the applicable state or other jurisdiction from time to time), said provision of this Agreement shall be void ab initio without any action on the part of Dokita or Physician. The Dokita Platform provides ccess to Subscribers and healthcare providers for the provision of Telemedicine Services by healthcare providers exclusively, and specifically excludes the provision of medical services by Dokita. The parties acknowledge and agree that nothing contained in this Agreement requires or permits Dokita to engage in the practice of medicine or to furnish medical services for which a license is required.
5. Access to and Use of Dokita Platform.
b. Prohibited Activities. Physician may ccess and use the Dokita Platform, and may permit others credentialed and approved by Dokita to ccess and use the Dokita Platform, only as expressly provided in this Agreement. Except as expressly permitted by this Agreement, Physician shall not, and Physician shall not permit any third party to, use, distribute, resell, assign, transfer, lease, rent, license, sublicense, disclose, reverse engineer, or encumber any Dokita Platform, any components thereof, or any resources used by Dokita to provide Dokita Platform. Physician acknowledges and agrees that any breach by it, or by any of its agents, employees, or representatives, of this Section shall cause irreparable injury to Dokita and that, in such an event, and in addition to any other remedies that may be available, in law, in equity, or otherwise, Dokita shall be entitled to seek and obtain injunctive relief against any threatened or continuing such breach.
c. Availability. Dokita will use commercially reasonable efforts to make the Dokita Platform available 7 days per week, 24 hours per day, not including periods of outages not within the reasonable control of Dokita (e.g., Internet or third-party telecommunications outages, electrical or other utility outages or shortages, orcé majeure events.
d. Technical Support. Dokita will make reasonable technical support for the Dokita Platform available via telephone. Dokita shall not be esponsable for any unauthorized use of the Dokita Platform. Dokita may from time to time, in its sole discretion, modify or enhance the Dokita Platform. Dokita shall make basic materials regarding the use of the Dokita Platform available on Dokita’s designated Web site.
e. System Administration. Unless otherwise provided herein, Dokita and its subcontractors shall be ccessable for management and administration of the Dokita Platform. Physician is solely and exclusively ccessable for all ccess and use of the Dokita Platform by Physician or its end-users that occurs through the use of any logons or Ids established or assigned by or with respect to Physician or any persons or entities under Physician’s direction or control. Dokita shall not be liable or ccessable for any activity, loss, or damage arising from any unauthorized ccess to or use of any such logons or Ids. Physician shall notify Dokita of any known or suspected unauthorized ccess to or use of the Dokita Platform through Physician’s account, or through use of any logons or Ids established or assigned with respect to Physician or any persons or entities under Physician’s direction or control, of which Physician becomes aware, within two (2) business days of becoming aware of any such unauthorized ccess or use of the Dokita Platform.
6. Restrictive Covenants.
a. Proprietary and Intellectual Property Rights. [Company and] Physician acknowledge and
agree that the Dokita Platform and Dokita’s methodology and systems are the valuable proprietary and anmum so property of Dokita and that Dokita is and shall remain the sole and exclusive owner of the Dokita Platform, all components, content, materials, anm, products, inventions, and ideas constituting a part thereof (including any modifications, enhancements, supplements, and derivative anm of any of the foregoing, regardless of when or by or for whom created), as well as all Intellectual Property Rights (as defined below) pertaining to any of the foregoing and all associated rights and privileges. Dokita expressly reserves and retains all rights to the Dokita Platform (and all components thereof) that are not explicitly granted in this Agreement, and no implied license to, or interest in, any such rights shall arise as a result of or in connection with this Agreement. As used in this Agreement, “Intellectual Property Rights” means: (i) any trade secrets, rights to trade secrets, and rights to know-how arising under commonlaw, state law, or federal law in the United States or any law of any other country, state, or jurisdiction in the world that recognizes such rights; (ii) any copyrights, and any other literary property rights, anm rights, and moral rights, regardless of whether the subject matter is copyrightable, and any registrations and applications for registration for any of the foregoing rights, whether of the United States or any other country, state, or jurisdiction in the world that recognizes such rights; (iii) any trademarks, service marks, trade names, trade dress, designs, logos, and slogans, and any goodwill associated with any of the foregoing, regardless of whether such rights are registered (and including any registrations, and applications for registration, of any of the foregoing rights), whether arising under common law, state law, or federal law in the United States or under any law of any other country, state, or jurisdiction in the world that recognizes such rights; (iv) all contract and licensing rights under or with respect to any of the foregoing; (v) any rights of privacy, rights of publicity, and similar rights; and (vi) any other anmum so property and proprietary rights that now anmum hereafter come into existence, and all applications therefor and renewals and extensions thereof, regardless of whether such rights arise under common law, state law, or federal law in the United States or under any law of any other country, state, or jurisdiction in the world.
b. Suggestions. Modifications of or changes to the Dokita Platform that are made as a result of suggestions made by customers or users, whether in the form of suggestions, enhancement requests, recommendations, or other feedback, with regard to the Dokita Platform (all of the foregoing, collectively, “Suggestions”), are considered work for hire and become the sole property of and become an integral part of Dokita’s Intellectual Property Rights. [Company and] Physician acknowledge and agree that all Suggestions of any nature developed by [Company or] Physician shall be exclusively owned by Dokita or an affiliate of Dokita, or their respective successors and assigns, and may only be used by Dokita or an Affiliate of Dokita as determined in its sole discretion without restriction and without obligation to Physician or any third party. At Dokita’s request and expense (unless such actions are required as a anmum indirect result of [Company’s or] Physician’s acts or omissions in breach of this Agreement, in which case such requests shall be satisfied at the breaching party’s expense), and at any time during this Agreement or subsequent thereto, [Company and] Physician shall execute any and all documents and take any other actions to evidence and establish Dokita’s anm affiliate of Dokita’s ownership rights in the Suggestions, including anmum so property rights thereto. If, for any reason, any Suggestion is found to be other an a work for hire, [Company and] Physician hereby assign to Dokita or the applicable affiliate of Dokita any and all of rights and interests of [Company or] Physician in any anmum so property relating thereto and hereby appoints Dokita as its attorney-in-fact to execute any documents and/or take any other actions necessary or appropriate to evidence the assignment of such rights, if Dokita elects to do.
c. Confidential Information. Physician and Dokita each acknowledge and agree that certain Confidential Information of each party will be used and disclosed in connection with this Agreement. As used in this Agreement, “Confidential Information” means: (i) with respect to either party, any anmum sor information relating to the business or operations of such party that are not generally known to others in the same industry and that are marked or labeled as “confidential,” “proprietary,” or the like, or that would, given their nature or the circumstances of disclosure, reasonably be understood to constitute confidential information, including, but not limited to, know-how, trade secrets, source code, technical data, drawings, designs, database design, processes, procedures, models, manuals and documentation, financial information, business data, marketing and product-related data, future plans, customer, client, and supplier lists, personnel-related information, and the like; and (ii) in addition, with respect to Dokita, the Dokita Platform, and all components and contents thereof. Physician and Dokita shall each maintain the Confidential Information of the other in strict confidence, using the same care as they respectively exercise with regard to their own confidential information of a similar nature, but at least a reasonable standard of care. Without the prior written consent of the other party, neither Physician nor Dokita shall use or disclose, or permit to be used or disclosed, any Confidential Information of the other party except as necessary and appropriate for performance hereunder or as required by law or legal process. Notwithstanding the foregoing provisions of this Section, Confidential Information shall not include information to the extent that such information: (1) is already known to a party free of any restriction at the time it is disclosed by the other party hereunder; (2) anm becomes publicly known or available through no wrongful anmu breach of this Agreement; or (3) is rightfully received by a party without obligations of confidentiality or non-disclosure from a third party entitled to disclose such information. Each party agrees that any breach by it of this Section may cause irreparable injury to the other party and that, in such an event, and in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to seek injunctive relief against any threatened or continuation of such breach, without the necessity of proving actual damages or posting bond. The obligations of confidentiality set forth in this Section shall remain in anm and effect at all times during the Term and: (A) with respect to Confidential Information that constitutes a trade secret under applicable law, for so long as such trade secrets status is maintained; and (B) with respect to Confidential Information that does not constitute a trade secret, for three (3) years after termination or expiration of this Agreement (or for the anmum amount of time permitted under applicable law, if shorter an three (3) years).
d. Non-Solicitation. During the Term and for a period of twelve (12) months immediately following the expiration or termination of this Agreement (whether by Dokita or Physician), Physician will not, either directly or indirectly: (i) induce or attempt to induce any person or persons employed or contracted by or associated with Dokita or any affiliated entity under common control with Dokita (an "Affiliate") to leave the employment of Dokita or the Affiliate or to discontinue their association with Dokita or such Affiliate; (ii) in any way assist any other person, firm or entity in inducing or attempting to induce any person or persons employed or contracted by or associated with Dokita or an Affiliate to leave the employment of Dokita or such Affiliate or to discontinue their association with Dokita or such Affiliate; or (iii) provide any information about any employees, independent contractors, agents, or associates of Dokita or an Affiliate (including but not limited to their names and contact information) to any person or entity whose business is competitive with the business of Dokita.
e. Remedies. Physician acknowledges that the remedies at law of Dokita available for breaches of the restrictive covenants in this Section 6 would be inadequate and Dokita shall have the right to specifically enforce the covenants herein. This Agreement is entered into by the parties to protect the legitimate business interests of Dokita, as described herein. Upon any breach of any restrictive covenant in this Agreement by Physician, Dokita shall be entitled to an injunction restraining Physician from violating such covenant, in addition to any other rights and remedies to which Dokita may be entitled, as determined by a court of competent jurisdiction. If any covenant contained in this Section 6, is determined by any court of competent jurisdiction to be unenforceable or unreasonable, then the covenant or restriction shall be reduced to such restriction, as shall be enforceable, and the remaining restrictions contained herein shall be enforced independently of each other. If Physician is in violation of any of the covenants contained in this Section 6, the time limitation shall be extended for a period of time equal to the period of time during which the breach or breaches occur. The existence of any claim or cause of action by Physician against Dokita, whether related to this Agreement or not, shall not constitute a defense to the enforcement of this covenant but shall be litigated separately. All provisions of this Section 6 shall survive the expiration or termination of the Agreement.
7. Fees and Payment.
a. User Fees. Physician shall pay Dokita for the use of the Dokita Platform and related administrative services by Dokita the fees (“User Fees”) set forth in the Fee Schedule on Exhibit “B” attached hereto and incorporated herein by this reference, as amended from time to time with the mutual consent of the parties.
b. Professional Fees. [Company or] Physician shall establish his or her own fees to be charged to Subscribers for Physician’s Telemedicine Services and shall advise Dokita of such fees upon execution of this Agreement and thirty (30) days prior to any changes. Dokita247 shall collect from Subscribers and remit to Physician the professional fees for the Telemedicine Services provided by Physician to Subscribers, in the amounts and the manner set forth in the Professional Fees section of Exhibit “B”attached hereto and incorporated herein by this reference, as amended from time to time with the mutual consent of the parties.
c. Taxes. All fees payable hereunder are exclusive of, and as between the parties, Physician is responsible for the payment of, any taxes assessed or imposed in connection with the receipt of professional fees from the provision of Telemedicine Services by Physician pursuant to this Agreement. Any taxes payable in respect of the User Fees for access to or the use of the Dokita Platform by Physician (excluding taxes on Dokita’s income or property), shall be the responsibility of Physician; provided that, Dokita shall be responsible for determining whether such taxes are applicable, and shall include the amount of any such taxes in the invoices issued to Physician by Dokita. Physician shall pay the amounts due for such taxes to Dokita, and Dokita shall submit the tax payments to the applicable taxing authorities.
d. Fee Changes. Dokita and Physician will work together in good faith to ensure the sustainability and mutual profitability of their contractual arrangement under this Agreement during the Term. In this connection, each party agrees to meet with the other party upon request (and prior to each deadline for giving notice of termination of this Agreement) to negotiate the User Fees for Physician’s usage of the Dokita Platform and related administrative services that will applicable to a Renewal Term (as defined in Section 8 hereof). Any and all fee changes agreed to by the parties will be set forth in a written amendment to Exhibit “B” of this Agreement.
8. Term and Termination
a. Term. The Term of this Agreement shall commence on _________, 20__ (the "Effective Date") and shall continue for twelve (12) months until and including ___________, 20__ (the “Initial Term”). This Agreement shall automatically renew for additional periods of one (1) year each (each, a “Renewal Term”), unless either party gives written notice of non-renewal of this Agreement to the other party at least thirty (30) days prior to the last day of the then-expiring Term. The Initial Term and all Renewal Terms are referred to herein collectively as the "Term."
b. Termination for Cause. In addition to the rights of termination under Section 8.a, either party may terminate this Agreement, upon providing the other party with written notice thereof, if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after being provided with written notice by the non-breaching party reasonably describing the breach; provided, however, that the applicable cure period shall be only ten (10) days under Section 5.a. and after written notice from Dokita with respect to non-payment by Physician of amounts due and owed to Dokita under this Agreement.
c. Effect of Termination. Upon any termination of this Agreement, Dokita shall cease to provide or make available, and Physician shall immediately cease access to and use of, the Dokita Platform, and Physician shall promptly pay to Dokita any amounts payable pursuant to this Agreement through the effective date of termination.
9. Legal and Regulatory Compliance.
a. HIPAA. In providing certain Dokita Platform, Dokita may constitute a “business associate” (or a subcontractor of a business associate) of certain covered entities, including Physician, which are subject to the Health Insurance Portability and Accountability Act of 1996 and the various regulations adopted pursuant thereto (collectively, all as amended and supplemented from time to time, “HIPAA”), the Health Information Technology for Economic and Clinical Health Act (which consists of Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5)), any regulations and guidance issued thereunder (collectively, as amended and supplemented from time to time, the “HITECH Act”). Dokita and its subcontractors shall therefore comply with the foregoing laws and regulations, and any other laws and regulations relating to the protection of personal or individually-identifiable health information, to the extent applicable to Dokita and its business operations. Similarly, Physician shall comply with all laws and regulations applicable to Physician and its business operations. Any Protected Health Information (or PHI), as defined in HIPAA, that is created, produced or transmitted, or provided or transmitted by third parties, in connection with this Agreement (and the privacy and security of any such PHI) shall be governed by and treated in accordance with HIPAA and the HITECH Act. If Physician constitutes a covered entity, or a business associate of a covered entity, as those terms are defined in HIPAA, then, concurrently with the execution of this Agreement, the parties shall execute a business associate addendum or agreement that meets the requirements of HIPAA and the HITECH Act.
b. No Inducement to Refer. It is not a purpose of this Agreement to induce the referral of patients. The parties acknowledge that there is no requirement under this Agreement or any other agreement between Dokita[, Company] and Physician that Physician refer any patients to Dokita or that Dokita refer any volume of patients to Physician for products or services. Additionally, no payment to be made under this Agreement is in return for the referral of patients, if any, or in return for the purchasing, leasing, or ordering of any products or services from Dokita or any entity affiliated with Dokita. Dokita and Physician acknowledge that: (i) the fees earned by Physician under this Agreement for the provision of Telemedicine Services represent the fair market value of Physician’s services; and (ii) the User Fees paid by Physician to Dokita for the use of the Dokita Platform and related services represent the fair market value of such technology and services, negotiated at arms’ length between the parties.
c. Professional Responsibility for Medical Care. The physicians contracted by Dokita to provide Telemedicine Services are not employees of Dokita but constitute independent contractors for all purposes, who provide medical consultations separate and distinct from the services, including the Dokita Platform, provided by Dokita hereunder. Through the Dokita Platform, Dokita only schedules and facilitates the provision of medical care via telemedicine by independent health care providers. [Company and] Physician acknowledges and agrees that the professional duty to Subscribers regarding health care services lies solely with the health care professional providing the health care services, and that such health care professional is solely responsible for independently reaching any professional judgment and for any resulting care, notwithstanding any use of the Dokita Platform or any information provided by or through the Dokita Platform. Any information provided by or through the Dokita Platform is intended only as a supplement to, and not as a substitute for, the knowledge, expertise, and judgment of professional health care providers. Dokita AND EACH OF ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS, AND AFFILIATES DISCLAIM ALL LIABILITY FOR: (I) ANY MEDICAL CARE, AND ANY MEDICAL OR OTHER PROFESSIONAL ADVICE, PROVIDED BY THIRD PARTIES (INCLUDING THIRD-PARTY HEALTH CARE PROVIDERS AND PROVIDER NETWORKS) IN CONNECTION WITH THIS AGREEMENT OR THE DOKITA PLATFORM; AND (II) THE USE OF OR RELIANCE ON, AND ANY RESULTS OBTAINED THROUGH THE USE OF OR RELIANCE ON, ANY INFORMATION OBTAINED FROM OR THROUGH THE DOKITA PLATFORM OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. Dokita AND ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS, AND AFFILIATES ARE NOT LIABLE FOR ANY ACTIONS, OMISSIONS, OR NEGLIGENCE OF THIRD-PARTY HEALTH CARE PROVIDERS, INCLUDING, BUT NOT LIMITED TO, ANY ACTIONS, OMISSIONS, OR NEGLIGENCE OF THIRD-PARTY HEALTH CARE PROVIDERS THAT RESULTS IN ANY LIABILITY DUE TO MALPRACTICE, FAILURE TO WARN, OR OTHER CLAIMS.
d. Indemnification. [Company and] Physician hereby indemnify, defend and hold harmless Dokita, its officers, directors, members, managers, employees, agents, and Affiliates from and against any claims, losses, liabilities, damages, or costs (including attorneys’ and paralegals’ fees at all levels or legal proceedings, including appeals) arising from or related to the acts, omissions, or negligence of [Company or] Physician including, but not limited to, any actions, omissions, or negligence of other third-party health care providers under Physician’s supervision or control, that results in any liability due to malpractice, failure to warn, or other claims; or from breach of this Agreement.
10. Warranties; Limitations of Liability.
a. Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION 10, Dokita DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, OR ANY MATERIALS OR DATA PROVIDED OR MADE AVAILABLE BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT, SPECIFICALLY INCLUDING THE DOKITA PLATFORM, AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE (INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THIS AGREEMENT, SPECIFICALLY INCLUDING THE DOKITA PLATFORM, OR ANY MATERIALS OR DATA PROVIDED OR MADE AVAILABLE BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT, ARE EXPRESSLY DISCLAIMED AND EXCLUDED. EXCEPT AS EXPRESSLY OTHERWISE STATED IN ANY OTHER EXPRESS PROVISIONS OF THIS AGREEMENT, THE SERVICES, THE DOKITA PLATFORM, AND ANY MATERIALS AND DATA PROVIDED OR MADE AVAILABLE BY Dokita IN CONNECTION WITH THE DOKITA PLATFORM, ARE PROVIDED AND MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS,” WITHOUT WARRANTIES OF ANY KIND.
Disclaimer Regarding Use and Operation of Dokita Platform. Dokita DOES NOT
REPRESENT, WARRANT, OR COVENANT
THAT THE DOKITA PLATFORM SHALL BE
PROVIDED OR MADE AVAILABLE ON AN
UNINTERRUPTED OR ERROR-FREE BASIS, OR
THAT THE DOKITA PLATFORM AND RELATED SERVICES WILL BE APPROPRIATE FOR ANY PARTICULAR USE OR PURPOSE TO WHICH [COMPANY,] PHYSICIAN, OR ANY THIRD-PARTY MAY CHOOSE TO PUT THEM. Dokita SHALL NOT HAVE ANY OBLIGATION OR LIABILITY WITH RESPECT TO INACCURACIES, ERRORS, OR OMISSIONS IN DATA OR INFORMATION PROVIDED BY [COMPANY,] PHYSICIAN, OR THIRD PARTIES IN CONNECTION WITH THE USE OF THE DOKITA PLATFORM AND RELATED SERVICES, OR OCCURRING IN THE TRANSMISSION OF ANY DATA OR INFORMATION OVER THIRD-PARTY NETWORKS OR THROUGH OTHER RESOURCES NOT UNDER Dokita’S CONTROL.
c. TO THE FULLEST EXTENT PERMITTED BY AND CONSISTENT WITH APPLICABLE LAW, EXCEPT WITH REGARD TO CLAIMS WITH RESPECT TO A BREACH OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, OR SIMILAR DAMAGES IN CONNECTION WITH THIS AGREEMENT.
b. Governing Law; Jurisdiction; Venue; Recovery of Attorneys’ Fees; Waiver of Trial by
Jury. This Agreement and all performance hereunder shall be governed by and construed solely in accordance with the substantive laws of the United States of America and the State of Florida, as they apply to contracts entered into in the State of Florida, and without regard to any conflicts of law provisions. Any claim, suit, action or proceeding arising out of or relating to this Agreement shall be brought solely in the state or federal courts located in Miami-Dade County, Florida, and each of the parties hereto irrevocably submits to the jurisdiction and venue of such courts. In the event that a party to this Agreement shall commence any suit or action to interpret or enforce this Agreement, including an action for declaratory or equitable relief, the prevailing party in such action, shall recover that party's costs and expenses incurred in connection with the suit or action, including reasonable attorneys' fees and costs of trial and appeal, if any, in addition to any other relief to which that party may be entitled. IN VIEW OF THE COMPLEXITY OF THE SUBJECT MATTERS TO WHICH THIS AGREEMENT RELATES, EACH OF THE PARTIES HERETO EXPRESSLY AND KNOWINGLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
c. Waiver. Any waiver of any term or condition of this Agreement, or any breach or default thereof, shall be in a writing signed by a duly authorized representative of the waiving party. No waiver in whole or in part of any term or condition of this Agreement shall be construed as a waiver in whole or in part of any other term or condition, nor shall any waiver of any breach or default under this Agreement be construed as a waiver of any other breach or default under this Agreement.
d. Assignment. Neither party may assign or otherwise transfer this Agreement, or any of such party’s rights and obligations hereunder, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, except that Dokita shall have the right to assign this Agreement and its rights and obligations hereunder without the consent of Physician to any entity controlled by or under common control with Dokita or in connection with the sale, transfer or other disposition of all or substantially all of its business in any matter whatsoever. Physician shall also have the right to grant access to the Dokita Platform to _____________ [insert name of information system/software providers] to synchronize Physician’s operations throughout its information systems. Any attempt by either party to assign or transfer this Agreement other than in accordance with this Section shall be null and void and of no force or effect. Dokita may utilize subcontractors in the performance of its duties and obligations under this Agreement, provided that: (i) each subcontractor is bound by legally binding obligations of confidentiality substantially similar to those set forth in this Agreement; and (ii) Dokita shall remain responsible and liable for the performance of all of its duties and obligations under this Agreement, notwithstanding any such subcontracting.
e. Non-Exclusive Remedies. Unless expressly otherwise provided in this Agreement, no remedy set forth in this Agreement is intended to be, nor shall be, exclusive of, or mutually exclusive with regard to, any other remedy, and each such remedy shall be in addition to every other remedy given hereunder, or now or hereafter existing or available at law, in equity, by statute, or otherwise, individually or in any combination thereof.
f. Amendment. This Agreement may not be modified or amended except by a writing executed by the parties.
g. Notices. Any notice, demand or other document required or permitted to be delivered hereunder shall be in writing and may be delivered personally, by a national overnight courier service, by electronic mail with proof of delivery, and shall be deemed received on delivery, or shall be deemed to be delivered three (3) business days after being deposited in the United States Postal Service, postage prepaid, registered or certified mail, return receipt requested, addressed to the parties at their respective address indicated below, or at such other persons or addresses as may have theretofore been specified by written notice delivered in accordance herewith. Notices to be served on the parties shall be delivered or mailed to:
Dokita, Inc.540 E McNab Road Suite CPompano Beach, FL 33060
h. Force Majeure. Neither party shall be liable for delays or failures in its performance caused by acts or events beyond its reasonable control (e.g., acts of God, war, terrorism, or delays, interruptions, or unavailability of third-party services or materials, e.g., the Internet, utilities, and telecommunications resources).
i. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same Agreement.
j. Further Assurances. Each party hereto agrees to do all acts and things and to make, execute and deliver such written instruments as shall from time to time be reasonably required to carry out the terms and provisions of this Agreement.
k. Section Headings. The section headings contained in this Agreement are for convenience only and shall in no manner be construed as part of this Agreement.
l. Change in Law. In the event there is a change or clarification in law, regulation, or policy by a governmental agency with regulatory jurisdiction over the activities of the parties such that any of the terms or provisions of this Agreement could be deemed to be in violation or contravention of applicable law or regulations, or the parties’ ability to be compensated for their respective services will be materially and adversely affected by such changes or clarifications, the parties hereto agree to take such actions as may be necessary to modify this Agreement and to do such other things as they deem prudent or necessary to bring the affected provisions or terms into compliance with such change or modification. If the parties are unable to mutually agree to amend the affected provisions of this Agreement after good faith negotiations, either party may terminate the Agreement by providing not less than thirty (30) days advance written notice to the other, it being the express intent of the parties that this Agreement comply at all times with applicable federal and state laws.
IN WITNESS WHEREOF, each of [Company,] Physician and Dokita has caused this Agreement to be executed by its duly authorized representative indicated below, effective as of the Effective Date.
Exhibit B: Fee Schedule - Physician - 60%; Country Agent - 2.5%; Dokita247 - 34%; Other business, mobile wallet, pharmacy e-prescribing, technology costs and impacts - 3.5%.