This PROVIDER AGREEMENT ("Agreement") and the policies referred to herein contain the complete terms and conditions that apply to your use of the Services (as defined in Section 1.e below) being offered at the URL: http://www.SleepSolutionDoctors.com and all affiliated websites owned and operated solely by Sleep Solution Doctors (collectively, the "Sleep Solution Doctors Site"). As used in this Agreement, "PROVIDER" or "you" refers to you and “Practice” shall mean all medical or dental practitioners and staff members (each a “Practice Member”) located in the same office or affiliate offices for whom an account is created on the Sleep Solution Doctors’ Site or who otherwise use the Sleep Solution Doctors Site or the Services for the purpose set forth in this Agreement. This Agreement hereby incorporates by reference any order form or Provider Account Information page (collectively, “Order Form”) agreed to by Provider as if the terms of such Order Form were stated herein.
BY CLICKING ON THE "I ACCEPT" BUTTON OR DOWNLOADING, ACCESSING OR OTHERWISE USING THE SERVICES AND/OR THE Sleep Solution Doctors SITE, YOU ACKNOWLEDGE AND AGREE THAT ALL SUCH USE IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT LICENSED OR PERMITTED TO USE THE Sleep Solution Doctors SITE OR THE SERVICES. ALL OTHER USES OF THE Sleep Solution Doctors SITE OR THE SERVICES ARE PROHIBITED.
1. Responsibilities of Sleep Solution Doctors.
a. Sleep Solution Doctors will provide certain services via the Sleep Solution Doctors Site for the benefit of Providers, including, but not limited to, increasing public awareness of sleep disorders and the treatments available, marketing practitioners' services, appointment scheduling services, training, integration to Provider's practice management system, automated appointment reminders, hosting practice and practitioner profile web pages (collectively, "Services") subject to the availability of such Services, and payment of the fees set forth in section 5a.
b. In order to provide the Services, Sleep Solution Doctors shall make information for each practitioner practice profile, including, without limitation, (i) the address, phone number, fax and email, (ii) provider or practice photographs, (iii) information regarding appointment availability, (iv) types of insurance accepted and (v) general practice information provided by Provider (collectively, "Provider Information") available to Providers of the Sleep Solution Doctors Site ("Customers"), so that Customers may select Providers for their health care needs.
c. Sleep Solution Doctors will assign Provider-selected passwords ("Passwords") to each Provider profile so that Provider may upload, review, and update Provider Information via the Sleep Solution Doctors Site throughout the Term of this Agreement. Passwords shall be held in strict confidence by Provider and Provider will be solely responsible for any disclosures of its Passwords or use thereof by any unauthorized third party. Sleep Solution Doctors reserves the right to disable any Password upon its reasonable belief that the security with respect to that Password has been or will be compromised.
d. Sleep Solution Doctors may periodically present promotional offers to Customers and may ask Providers to participate in such promotional offers. Providers may, but are not obligated to, participate in promotional offers.
e. Sleep Solution Doctors will maintain all Customer authorizations for the use of Customer's health care and personal information ("Customer Personal Information") and the Services whether in paper or electronic form.
f. Additionally, Sleep Solution Doctors will validate Customer phone numbers, serve as a communication vehicle between Customer and Provider, gather Customer Personal Information and assist in scheduling.
2. Provider Responsibilities.
a. Provider will cooperate with Sleep Solution Doctors or its agents to verify the information specified in Section 6.b, and any other information that Sleep Solution Doctors in its sole discretion deems necessary to confirm Provider's qualifications to provide the care offered to Sleep Solution Doctors Customers. Provider will notify Sleep Solution Doctors immediately of any change in licensure status or in the information required to be provided under Section 5.b.
b. Provider's scheduling of a Customer for an appointment constitutes Provider's acceptance of the Customer as a patient. Provider is fully and solely responsible for all services rendered to Customer by Provider and for collecting payment from Customer for all services rendered by Provider. Repeated cancellation by Provider of appointments booked by Customers through the Site constitutes a material breach of this Agreement by Provider. Sleep Solution Doctors will have no responsibility for collection or any liability whatsoever for fees for services due to Provider that are unpaid by Customer.
c. Provider will maintain and update his or her Provider Information as necessary in order to ensure its completeness and accuracy at all times. Provider is solely responsible for any liability or expense resulting from outdated or inaccurate Provider Information.
3. Website Content.
a. Sleep Solution Doctors shall develop and/or compile all content on the Sleep Solution Doctors Site, including, without limitation, any content provided by Provider or any Customers.
b. Provider may request that Sleep Solution Doctors modify the Provider Information with additional information, links or services. Sleep Solution Doctors will incorporate such modifications and additional information into Provider's profile posted on the Sleep Solution Doctors Site in its sole discretion.
c. If Sleep Solution Doctors becomes aware that a Provider is knowingly and willfully using any Customer Personal Information provided via the Sleep Solution Doctors Site in a manner that is inconsistent with the terms of this Agreement or applicable law, Sleep Solution Doctors may, without limiting any of its other remedies available at law or in equity, request that Provider immediately cease such inconsistent use or terminate such Provider's rights with respect to the Sleep Solution Doctors Site. Sleep Solution Doctors may delete any content that Sleep Solution Doctors, in its sole discretion, deems inappropriate for inclusion on the Sleep Solution Doctors Site.
d. Provider acknowledges and agrees that Sleep Solution Doctors may make content from the Sleep Solution Doctors Site, including Provider Information, available on the websites of its partners or collaborators either via a direct content feed or a hyperlink from such other website to the Sleep Solution Doctors Site.
4. Limitation of Liability for Use.
The parties acknowledge and agree that Sleep Solution Doctors is not responsible for (i) the accuracy, reliability, timeliness, or completeness of the Provider Information, data provided by Customers, or any other data or information provided or received through the Services, or (ii) the results that may be obtained from the use of the Sleep Solution Doctors Site.
5. Fees and Payments
a. In consideration of the Services provided herein, Provider shall pay Sleep Solution Doctors any initial set up or recurring fees (if any) as further specified in the Sleep Solution Doctors Order Form. Sleep Solution Doctors will invoice Provider for the first payment in advance, at the time of sign up, and in advance for each subsequent period based. Invoices are due immediately and Sleep Solution Doctors will charge Provider credit card, bank account, or other form of payment, on a recurring basis, in advance of the period of service. Provider agrees to this recurring charge. Except as otherwise may be agreed in an applicable Order Form, Sleep Solution Doctors reserves the right to change the amount of the fees from time to time. Provider will be notified of any fee changes on the Provider Account Information Page at least thirty (30) days prior to becoming effective. If Provider does not wish to pay the revised fees, then Provider’s sole option is to terminate this Agreement by notifying Sleep Solution Doctors in writing prior to the revised fees becoming effective. If Provider does not notify Sleep Solution Doctors by that date, then Provider will be deemed to have accepted the fee changes and the revised fee amounts will be automatically incorporated into this Agreement by this reference.
b. Upon termination of this Agreement for any reason, Provider shall pay to Sleep Solution Doctors all fees due for Services rendered up to and including the effective date of termination. Sleep Solution Doctors shall not refund to Provider any fees due and payable or paid prior to any change in Services or expiration or termination of this Agreement.
c. Sleep Solution Doctors will not exclude as a participant in the Services any individual or entity who meets the qualifications for participation as set forth herein. Any Provider payments are only based on the cost of operating the Services, and not on the volume or value of any referrals to or business otherwise generated by either Sleep Solution Doctors or the Provider for the Services for which payment may be made in whole or in part under Medicare, Medicaid or any other federal health care program. The Services impose no requirements on the manner in which the Provider provides services to a referred Customer, except that Sleep Solution Doctors may require that the Provider charge the Customer at the same rate as it charges other persons not referred by the Services.
6. Representations and Warranties of Provider.
a. Provider represents and warrants that it will maintain the confidentiality of Customer Personal Information and shall only use such information as permitted in this Agreement and consistent with state and federal privacy laws.
b. Provider will at all times during the Term of this Agreement: (i) possess a valid and unrestricted license for all jurisdictions in which he or she practices medicine; (ii) be a member in good standing on the medical staff of any hospitals in which he or she practices with appropriate clinical privileges (if Provider is a physician); (iii) be board certified or board eligible in his or her specialty if Provider is a physician; (iv) possess valid and unrestricted state and federal narcotic and controlled substances numbers as applicable; (v) be and remain a participating provider in the Medicare and Medicaid programs (Titles XVIII and XIX of the Social Security Act, respectively) or be qualified to participate therein, but in any event not be excluded therefrom; (vi) obtain and maintain professional liability insurance coverage and other insurance of the types and in the amounts that are consistent with industry standard and applicable law for Provider's practice; and (vii) treat all patients presenting themselves for treatment without regard to such patients' race, religion, gender, sexual orientation, disability, payer source or other unlawful considerations.
c. Provider acknowledges that Sleep Solution Doctors is not a health care provider, licensed or otherwise. Sleep Solution Doctors cannot and will not assume responsibility for the direct care of any patient, which shall, at all times remain the responsibility of the Provider. Sleep Solution Doctors will not be responsible for the assignment of staff to treat Customers or any other activity that involves the practice of medicine.
Provider will defend, indemnify and hold Sleep Solution Doctors and its affiliates, directors, officers, employees, consultants and agents (each, a "Sleep Solution Doctors Indemnified Party") harmless from any and all claims, actions, proceedings, losses, damages, liabilities and expenses, including reasonable attorneys' fees and amounts awarded by a court or paid in settlement, arising from or related to any services or treatment provided by Provider to a Customer resulting from Provider's use of the Services.
8. Mutual Representations and Warranties, Disclaimer of Warranties
a. Each party represents and warrants to the other party that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized, it has the full power to enter into this Agreement and to perform its obligations hereunder.
b. Each party represents and warrants to the other party that the party is not currently the subject of a voluntary or involuntary petition in bankruptcy, does not currently contemplate filing any such voluntary petition, and is not aware of any basis for the filing of an involuntary petition.
c. Each party represents and warrants that its signatory hereto is authorized to execute this Agreement on such party's behalf.
d. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE Sleep Solution Doctors SITE, SERVICES AND SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Sleep Solution Doctors HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.
9. Limitation of Liability.
a. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL Sleep Solution Doctors OR ITS SUPPLIERS, VENDORS OR LICENSORS BE LIABLE TO PROVIDER FOR ANY LOSS OF PROFITS, LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF DATA, INCURRED BY PROVIDER, WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY, EVEN IF Sleep Solution Doctors HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF Sleep Solution Doctors OR ITS VENDORS, SUPPLIERS OR LICENSORS FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER FORM OF ACTION, EXCEED $100.
10. Trademarks; Publicity.
Any use of the name or any trade name, trademark or service mark of Sleep Solution Doctors (each a "Mark") by Provider in any promotion, advertising or other similar materials or in any publicity or news releases will, in each case, be subject to the prior written approval of Sleep Solution Doctors. Such written approval will not be unreasonably withheld. In addition, any such use of a Mark will be subject to Sleep Solution Doctors's quality control guidelines and trademark usage policies provided to Provider from time to time. Sleep Solution Doctors reserves the right to terminate Provider's right to use any Mark, immediately upon the issuance of written notice, if Sleep Solution Doctors determines Provider to be in violation of such policies or guidelines.
11. Intellectual Property.
a. All right, title and interest, including without limitation all intellectual property rights, in and to the Services and the Sleep Solution Doctors Site, including all content submitted by Provider thereto (other than Provider Information), shall remain the valuable and exclusive property of Sleep Solution Doctors.
b. Sleep Solution Doctors retains all proprietary rights, title, and interest, including, without limitation, all patents, copyrights, trademarks, service marks and trade secrets embodied therein in and to any inventions, data, information, know-how, logos, ideas, concepts, technology, software and documentation related to or resulting from the utilization of the Services.
The parties agree not to disclose the terms and conditions of this Agreement to third parties unless both parties have approved and mutually agreed in writing to the content, form and forum of any such disclosure.
13. Term; Termination.
a. Unless terminated earlier in accordance with the provisions of this Agreement, the Agreement will commence as of the date of your acceptance of the terms and conditions herein, whether by clicking on the "I Accept" button or downloading, accessing or otherwise using the Services and/ or the Sleep Solution Doctors Site, and shall continue in effect for a period of one (1) year. The term of the agreement will automatically renew for successive one (1) year periods unless either party notifies the other in writing at least thirty (30) days prior to the end of the initial term, or any renewal period, of its election not to renew the Agreement. The initial one (1) year term and any renewal periods will collectively be referred to as the "Term."
b. Either party shall have the right to terminate this Agreement upon thirty (30) days written notice following a material breach or default by the other party that is not cured to the reasonable satisfaction of the non-breaching party within such thirty (30) day notice period.
c. Either party shall have the right to terminate this Agreement without cause by providing the other party with sixty (60) days advance written notice of their intent to terminate.
d. This Agreement will terminate immediately in the event that Provider loses his or her license to practice or otherwise becomes unable to fulfill the requirements set forth in Section 5.b.
a. Assignment. Neither party may assign this Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of the other, except that Sleep Solution Doctors has the unrestricted right to assign this Agreement to an affiliate or in the event of a sale, merger or acquisition or reorganization of its business, assets or stock.
b. No Inducement. Nothing contained in this Agreement is intended or shall be construed: (i) to require, influence or otherwise induce or solicit a party or any of its affiliates regarding referrals of business, or recommending the ordering of any items or services, of any kind whatsoever to any of the other parties or their affiliates, or to any other person; or (ii) to interfere with a patient's right to choose his or her own health care provider, or with a provider's judgment regarding the ordering of any items or health care services.
d. Notices. Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be sufficiently given if: (i) sent by overnight guaranteed delivery service and addressed to such address or addressee as either party may from time to time designate to the other by written notice, or (ii) sent by confirmed electronic mail or facsimile to such electronic mail address or fax number as either party may from time to time designate to the other by written notice. Any such notice or other communication shall be deemed to be given as of the date it is delivered to the recipient or, if delivered on a non-business day, on the next business day.
e. Governing Law; Dispute Resolution. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without reference to the conflict of laws provisions thereof. Any controversy, dispute or claim arising out of or related to this Agreement that cannot be resolved by informal and good-faith negotiations between authorized representatives of the parties, shall be settled by final and binding arbitration to be conducted by an arbitration tribunal in the State, City and County of New York, pursuant to the rules of the American Arbitration Association. The arbitration tribunal shall consist of one arbitrator. The decision or award of the arbitrator shall be final, and judgment upon such decision or award may be entered in any competent court or application may be made to any competent court for judicial acceptance of such decision or award and an order of enforcement. The parties agree that the arbitrator shall have the authority to impose equitable and injunctive relief as well as to award monetary relief, as the arbitrator deems appropriate.
f. Force Majeure. The performance of either party under this Agreement may be suspended to the extent and for the period of time that such party is prevented or delayed from fulfilling its obligations due to causes beyond its reasonable control (including, without limitations, acts of God, acts of civil or military authority including government priorities, new legislation or regulatory requirements, strikes or other labor disturbances, fires, floods, epidemics, wars or riots). After thirty (30) cumulative days of suspension on the part of one party, the other party may, at its sole discretion, terminate its obligations without further liability.
g. Modifications. No modification, amendment, supplement to or waiver of this Agreement or any of its provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties. A failure or delay of either party to: (i) insist upon the performance of any terms or conditions of this Agreement; or (ii) exercise any rights or privileges conferred in this Agreement shall not be construed as waiving any such terms, conditions, rights or privileges and the same shall continue and remain in full force and effect.
h. Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
j. Independent Contractors. The relationship of the parties shall be that of independent contractors. Any employee, servant, subcontractor or agent of Sleep Solution Doctors who is assigned to provide services under this Agreement shall remain at all times under the exclusive direction and control of Sleep Solution Doctors and shall not be deemed to be an employee, servant, subcontractor or agent of Provider. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party as agent, employee, or in any other capacity, except as specifically provided herein.
k. Remedies Cumulative. Unless expressly stated, no remedy afforded to a party under this Agreement shall preclude other remedies available under equity or law.
15. Electronic Contracting and Notices.
The Provider agrees that by clicking on the "I accept" button or downloading, accessing or otherwise using the Services and/or the Sleep Solution Doctors Site constitutes (i) the Provider's electronic signature to this Agreement, (ii) a Business Associate agreement between Sleep Solution Doctors and the Provider for purposes of complying with applicable law and (iii) the Provider's consent to enter into agreements with Sleep Solution Doctors electronically.
Stated Purpose for Which Sleep Solution Doctors May Use or Disclose PHI
Obligations and Activities of Sleep Solution Doctors
a. Sleep Solution Doctors agrees to not use or further disclose PHI other than as permitted or required by this Agreement or as Required By Law.
b. Sleep Solution Doctors agrees to use appropriate safeguards, including without limitation administrative, physical, and technical safeguards, to prevent use or disclosure of the PHI other than as provided for by this Agreement and to reasonably and appropriately protect the confidentiality, integrity, and availability of any electronic PHI that it may receive, maintain, or transmit on behalf of Provider.
c. Sleep Solution Doctors agrees to mitigate, to the extent practicable, any harmful effect that is known to Sleep Solution Doctors of a use or disclosure of PHI by Sleep Solution Doctors in violation of the requirements of this Agreement.
d. Sleep Solution Doctors agrees to report to Provider any use or disclosure of the PHI not provided for by this Agreement or any security incident of which it becomes aware involving PHI of Provider.
e. Sleep Solution Doctors agrees to ensure that any agent, including a subcontractor, to whom it provides PHI received from, or created or received by Sleep Solution Doctors on behalf of Provider agrees to the same restrictions and conditions that apply through this Agreement to Sleep Solution Doctors with respect to such information.
f. Sleep Solution Doctors agrees to provide access, at the request of Provider, and in the time and manner designated by Provider, to PHI in a Designated Record Set, to Provider or, as directed by Provider, to an Individual in order to meet the requirements under 45 CFR 164.524.
g. Sleep Solution Doctors agrees to make any amendment(s) to PHI in a Designated Record Set that Provider directs or agrees to pursuant to 45 CFR 164.526 at the request of Provider or an Individual, and in the time and manner designated by Provider.
h. Sleep Solution Doctors agrees to make internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received by Sleep Solution Doctors on behalf of Provider available to Provider, or at the request of Provider to the Secretary, in a time and manner designated by Provider or the Secretary, for purposes of the Secretary determining Provider's compliance with the Privacy & Security Rules.
i. Sleep Solution Doctors agrees to document such disclosures of PHI and information related to such disclosures as would be required for Provider to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR 164.528.
j. Sleep Solution Doctors agrees to provide to Provider or an Individual, in time and manner designated by Provider, information collected in accordance with this Agreement, to permit Provider to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR 164.528.
k. Sleep Solution Doctors hereby acknowledges and agrees that Provider has notified Sleep Solution Doctors that it is required to comply with the confidentiality, disclosure and redisclosure requirements of 10 NYCRR Part 63 to the extent such requirements may be applicable.
Permitted Uses and Disclosures by Sleep Solution Doctors
Except as otherwise limited in this Agreement, Sleep Solution Doctors may use or disclose PHI to perform functions, activities, or services for, or on behalf of, Provider as specified in this Agreement, provided that such use or disclosure would not violate the Privacy & Security Rules if done by Provider.
a. Except as otherwise limited in this Agreement, Sleep Solution Doctors may use PHI for the proper management and administration of Sleep Solution Doctors or to carry out the legal responsibilities of Sleep Solution Doctors.
b. Except as otherwise limited in this Agreement, Sleep Solution Doctors may disclose PHI for the proper management and administration of Sleep Solution Doctors, provided that disclosures are required by law, or Sleep Solution Doctors obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as required by law or for the purpose for which it was disclosed to the person, and the person notifies Sleep Solution Doctors of any instances of which it is aware in which the confidentiality of the information has been breached.
Obligations of Provider
a. Provider shall provide Sleep Solution Doctors with the notice of privacy practices that Provider produces in accordance with 45 CFR 164.520, as well as any changes to such notice.
b. Provider shall provide Sleep Solution Doctors with any changes in, or revocation of, permission by Individual to use or disclose PHI, if such changes affect Sleep Solution Doctors's permitted or required uses and disclosures.
c. Provider shall notify Sleep Solution Doctors of any restriction to the use or disclosure of PHI that Provider has agreed to in accordance with 45 CFR 164.522.
Permissible Requests by Provider
Provider shall not request Sleep Solution Doctors to use or disclose PHI in any manner that would not be permissible under the Privacy & Security Rules if done by Provider.
Term of Obligations of this Appendix A
The obligations of this Appendix A shall terminate when all of the PHI provided by Provider to Sleep Solution Doctors, or created or received by Sleep Solution Doctors on behalf of Provider, is destroyed or returned to Provider, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with the termination provisions in this Appendix. Upon Provider's knowledge of a material breach by Sleep Solution Doctors, Provider may, in its sole discretion, either (1) provide Sleep Solution Doctors with an opportunity to cure the breach and then terminate this Agreement if Sleep Solution Doctors does not cure the breach within time period specified by Provider or (2) terminate the Agreement immediately. Upon termination of this Appendix or the Agreement for any reason, Sleep Solution Doctors shall return or destroy all PHI received from Provider, or created or received by Sleep Solution Doctors on behalf of Provider. This provision shall apply to PHI that is in the possession of subcontractors or agents of Sleep Solution Doctors. Sleep Solution Doctors shall retain no copies of the PHI. In the event that Sleep Solution Doctors determines that returning or destroying the PHI is infeasible, Sleep Solution Doctors shall provide to Provider notification of the conditions that make return or destruction infeasible. Upon mutual agreement of Sleep Solution Doctors and Provider that return or destruction of PHI is infeasible, Sleep Solution Doctors shall extend the protections of this Appendix to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Sleep Solution Doctors maintains such PHI.