Terms of Use
HEALTHCARE PROVIDER AGREEMENT |
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BACKGROUND
A. Verilogue provides certain market research to its clients, and has developed a research program ("Program") under which patients with certain Specified Conditions agree to provide certain information to Verilogue through their treating healthcare providers.
B. Healthcare provider is a licensed medical practitioner who consults with and treats his or her patients with the Specified Conditions.
C. Verilogue desires to engage Healthcare Provider to provide Audio Recordings and Patient Medical Data for Patients with the Specified Conditions, and Healthcare Provider desires to be so engaged by Verilogue, all upon the terms and subject to the conditions more fully set forth below.
NOW, THEREFORE, in consideration of the foregoing background recitals and the mutual obligations set forth herein, the Parties hereto, intending to be legally bound, hereby agree as follows:
1.
Engagement.
(a) General. Verilogue hereby engages Healthcare Provider to provide, and Healthcare Provider hereby agrees to provide audio recordings of consultations ("Audio Recordings") between Healthcare Provider and his or her patients who consent in writing to participate ("Patients") and who are being treated for certain conditions identified by a member of the Verilogue Panel Management Group in a separate written communication which is incorporated by reference herein and may be revised periodically during the course of the engagement (the "Specified Conditions").
(b) Patient Medical Data. Healthcare Provider shall provide Verilogue with the vital statistics, symptoms, health history, treatment history, medications currently being taken, and other related information ("Patient Medical Data") for each patient participating in an Audio Recording in form and content acceptable to Verilogue. Healthcare Provider shall provide the Patient Medical Data using the form located on the Verilogue Website, which form may be revised by Verilogue from time to time.
(c) Delivery. Healthcare Provider shall deliver to Verilogue the number required by a member of the Verilogue Panel Management Group ("Required Number") of Audio Recordings of different Patients and the related Patient Medical Data for each Patient each [[${physicianAgreement.period}]] during the Term of this Agreement. The Required Number of Audio Recordings will be set forth in a separate written communication which is incorporated by reference herein and may be revised periodically during the course of the engagement. Each Audio Recording and the associated Patient Medical Data shall be uploaded to a secure website maintained by Verilogue (the "Verilogue Website") within seven days after the completion of such Audio Recording. Healthcare Provider may satisfy his or her obligations hereunder by uploading more than one Audio Recording with any individual Patient in any month, provided these Audio Recordings occurred on different days of that month.
(d)
Research
Honorarium.
(i) For each [[${physicianAgreement.period}]] in which Healthcare Provider successfully uploads the Required Number of Audio Recordings and related Patient Medical Data to the Verilogue Website and complied with the other obligations of Healthcare Provider under this Agreement, and as full compensation for performance by Healthcare Provider hereunder, Verilogue shall pay Healthcare Provider the applicable research honorarium in the amount and according to the schedule set forth by a member of the Verilogue Panel Management Group in a separate written communication which is incorporated by reference herein and may be revised periodically during the course of the engagement ("Honorarium"). Verilogue shall pay the Honorarium within thirty (30) days following the end of each month in which the Honorarium was earned.
(ii) Healthcare Provider shall not be entitled to any additional Honorarium in the event Healthcare Provider submits more than the Required Number of Audio Recordings and related Patient Medical Data per month, without the prior written agreement of Verilogue.
(iii) All payments made under this Agreement are subject to adjustment in the event of an error affecting such payment. Appropriate adjustments will be made within thirty (30) days after receipt of written notice of the error.
(iv) The Parties acknowledge that the Honorarium set forth in this Section represents the fair market value of the research and related services provided by Healthcare Provider to Verilogue; has not been determined in a manner which takes into account the volume or value of any referrals or business otherwise generated between Verilogue and any of its clients, on the one hand, and Healthcare Provider, on the other; and does not require Verilogue, any of its clients, or Healthcare Provider to recommend or arrange for the use of any product or service.
2.
Relationship
and Status of Parties.
(a) Independent Contractors. Each Party hereto shall be deemed to be an independent contractor as to the other for all purposes. This Agreement shall not be construed (i) to create the relationship of employer and employee between the Parties hereto or between either Party and any of the officers, directors, employees, or representatives of the other Party, (ii) to create a partnership or joint venture between the Parties, or (iii) to authorize either Party to act as a general or special agent of the other, except as may be specifically set forth herein.
(b) No Third-Party Beneficiaries. This Agreement is solely between the Parties hereto, and is not intended to create any right or legal relationship between the Parties hereto or any of their respective affiliates, employees, agents, or representatives, on the one hand, and any third party, including, without limitation, any Patient, on the other hand.
3.
Responsibilities
of Healthcare Provider.
(a)
Consent;
Verilogue Protocols. In
connection with obtaining Audio Recordings and Patient Medical Data under this
Agreement, Healthcare Provider shall:
(i) provide to each Patient exhibiting a Specified Condition a brochure describing the Program ("Brochure"), which brochure shall be provided by Verilogue to Healthcare Provider;
(ii) answer patient questions with respect to the Program in accordance with instructions and training materials provided by Verilogue ("Verilogue Protocols");
(iii) obtain and forward to Verilogue the written consent and/or participation agreement for each Patient, in form and content as required by the Verilogue Protocols;
(iv) collect the Patient Medical Data for each Patient consultation that is the subject of an Audio Recording, including:
(1) identification of all parties being recorded;
(2) the stage of Patient's consultation (e.g., initial consultation, follow-up consultation, etc.);
(v) in accordance with Verilogue procedures, read to each Patient the introduction to the consultation as set forth on the Verilogue Website; and
(vi)
make an Audio Recording of the Patient's
consultation using only the Verilogue Equipment and in accordance with the Verilogue
Protocols.
(b) Licensing. At all times during the term of this Agreement, Healthcare Provider shall:
(i) be duly licensed and in good standing in accordance with applicable state law to perform its obligations under this Agreement as a licensed Healthcare Provider;
(ii) maintain certification and/or training in Healthcare Provider's practice area as required by applicable law;
(iii) meet all other appropriate requirements with respect to Healthcare Provider's ability to perform his or her obligations under this Agreement as required by law or any applicable governmental authority, or as may be agreed to by Healthcare Provider and Verilogue from time to time in writing; and
(iv) not be subject to an exclusion, debarment or other limitation under applicable law that would preclude Healthcare Provider from performing its obligations under this Agreement. In the event that Healthcare Provider fails at any time to satisfy any one or more of the requirements set forth in this Section 3(b), Healthcare Provider shall immediately notify Verilogue and Verilogue may then, in its sole discretion, (1) immediately terminate this Agreement or (2) suspend this Agreement until Healthcare Provider shall again be in compliance with the requirements of this Section 3(b) and all other provisions of this Agreement.
(c) Communications. Except as expressly provided in this Agreement, Healthcare Provider shall not make any oral or written communication or representation to any person, including any Patient or governmental agency, relating in any way to Verilogue without obtaining the prior written consent of Verilogue. Healthcare Provider shall not make or originate any publicity, news release, technical article or other public statement or announcement, written or oral, to any person or entity relating to this Agreement or performance thereunder or relating to Verilogue without the prior written consent of Verilogue, except when a statement or announcement is required by law; provided, however, that Healthcare Provider shall, prior to making any statement or announcement required by law, consult with Verilogue prior to making and such statement or announcement and provide Verilogue with a copy of the statement or announce within a reasonable time before Healthcare Provider makes the statement or announcement.
(d) Nondiscrimination. Healthcare Provider will not discriminate because of age, sex, race, religion, color or national origin in its operations and performance of its duties and obligations under this Agreement.
(e) Compliance with law. Healthcare Provider will perform its obligations under this Agreement in accordance with applicable law.
(f) Representations and Warranties. Healthcare Provider represents and warrants that: (i) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; and (ii) its execution and performance of this Agreement will not violate the terms of any existing agreement to which Healthcare Provider is a party.
4. Responsibilities of Verilogue. Verilogue shall:
(a) provide Healthcare Provider with the Brochure for distribution by Healthcare Provider to his or her Patients, which shall include the consent and/or participation agreement to be executed by each Patient; and
(b) perform its obligations under this Agreement in accordance with applicable law.
5.
Term
and Termination.
(a) Duration. This Agreement shall commence on the Effective Date and, shall continue until either Party delivers 30 days prior written notice of its intent to terminate this Agreement.
(b) Surviving Obligations. Termination or expiration of this Agreement for any reason will not affect or negate any obligations of the Parties that arose prior to the effective date of such termination or expiration; provided, however, that if this Agreement is terminated by Verilogue due to breach by Healthcare Provider of this Agreement, Verilogue shall have no further obligation to Healthcare Provider, including, without limitation, payment of any Honorarium.
(c)
Termination
Not Exclusive Remedy.
Termination of this Agreement by either Party hereto is not intended to
be exclusive of any other remedy, and each and every such remedy shall be
cumulative and in addition to every other remedy now or hereafter existing at
law or in equity or by statute or otherwise.
6.
Proprietary
Information; Confidentiality.
(a) Ownership and Use of Recording and Patient Medical Data. Upon the uploading of any Audio Recording and/or Patient Medical Data to the Verilogue Website, Verilogue shall be the exclusive owner of all such recordings and data. Healthcare Provider shall not make or retain any copies of any Audio Recording or Patient Medical Data (other than data and records about the Patient maintained by Healthcare Provider in the ordinary course of Healthcare Provider's practices, which will at all times, as between the Parties, be the sole and exclusive property of Healthcare Provider). No Audio Recording or Patient Medical Data shall be used by any Party in any legal dispute instituted by a Party.
(b) Proprietary Information. Each of the Parties and their agents, employees, and representatives may obtain or have access to certain proprietary information of the other (the "Proprietary Information"). Except as otherwise expressly set forth in this Agreement, each Party shall, on behalf of itself, its affiliates, and their respective agents, officers, directors, employees and representatives: (a) keep the Proprietary Information confidential; (b) use the Proprietary Information only as is necessary to carry out the terms and conditions of this Agreement and not use the Proprietary Information for any other purpose; (c) not disclose the Proprietary Information to any person without prior written consent of the other, except as may be required by law; and (d) prevent unauthorized disclosure of the Proprietary Information, including, without limitation, notifying employees and agents who may have access to such Proprietary Information of their confidentiality obligations. If a Party is required to comply with an order issued by a court or government authority to disclose the Proprietary Information or a subpoena seeking disclosure of such information, such Party shall provide the other Party timely prior notice of the contemplated disclosure so that the other Party may have the opportunity to intervene to preserve the confidentiality of the Proprietary Information.
(c) Return of Proprietary Information. Upon termination of this Agreement for any reason or upon the request of the disclosing Party, the receiving Party shall promptly return to the disclosing Party, all originals and copies of documents and materials constituting or containing Proprietary Information of the disclosing Party. Upon termination of this Agreement, Healthcare Provider shall return to Verilogue all of the Verilogue Equipment in Healthcare Provider's possession. For the sake of clarity, Verilogue shall not be required to return to Healthcare Provider any Audio Recording or Patient Medical Data.
(d) Privacy. During the term of this Agreement, Verilogue will obtain or have access to certain confidential medical information regarding Patients (the "Confidential Patient Information"). Verilogue shall maintain the Confidential Patient Information on a strictly confidential basis and will use it solely in connection with providing research to its clients and for other purposes as authorized or directed by the Patient or the Patient's personal representative. In connection with the Program, Verilogue may disclose Confidential Patient Information to Verilogue's officers, employees, agents and representatives, including independent contractors, who require such for the performance of Verilogue's duties and obligations under this Agreement or other agreements between Verilogue and such persons. Verilogue may use and disclose Confidential Patient Information as required by law. After all information that would be likely to identify a Patient to a third party has been removed from an Audio Recording and Patient Medical Data, such Audio Recording and Patient Medical Data shall no longer be considered Confidential Patient Information.
(e) Surviving Obligations; Enforcement. The obligations contained in this Section shall survive termination or expiration of this Agreement. The Parties stipulate and acknowledge that a breach by either of them or their respective employees, agents, or representatives of the obligations and conditions set out under this Section 6 will cause immediate and irreparable harm. Accordingly, in addition to any other rights and remedies available at law, the aggrieved party shall be entitled to injunctive relief to restrain and enjoin such violations.
7.
Miscellaneous.
(a) Dispute Resolution. If any dispute shall arise between the Parties in any way related to this Agreement or the transactions contemplated herein, the dispute shall be settled by arbitration in accordance with the rules of the American Arbitration Association. The dispute shall be referred to three disinterested arbitrators. One arbitrator shall be chosen by each Party and the two chosen shall promptly select a third arbitrator. If either Party refuses or neglects to appoint an arbitrator within 30 days after the receipt of written notice from the other Party requesting arbitration and naming its arbitrators, the requesting Party may name an arbitrator for the other Party. Each Party shall submit its case to the three (3) arbitrators within thirty (30) days of the appointment of the third arbitrator unless such time is extended by the arbitrators or a majority of them or by agreement between the Parties. The decision of a majority of the arbitrators shall be final and binding on both Parties. The arbitrators shall not award either Party punitive, exemplary, multiplied or consequential damages. Each of the Parties shall each bear the expense of the arbitrator appointed by that Party, or one-half of the expense of two (2) arbitrators if both are appointed by the requesting Party as provided above, and shall jointly bear and equally bear with the other the expense of the third arbitrator and of the arbitration. Any such arbitration shall take place in Philadelphia, Pennsylvania. This Article shall survive termination of this Agreement.
(b) Notice of Regulatory Inquiries or Litigation. If either Party receives notice of, or otherwise becomes aware of, any regulatory inquiry, proceeding or investigation, or of any demand letter, summons, complaint, petition or notice of litigation, arbitration, or other dispute resolution proceeding, relating to this Agreement, the services provided hereunder, or the subject matter hereof, such Party shall promptly notify the other thereof, whereupon the Parties shall cooperate in good faith and use their respective commercially reasonable efforts to resolve such matter in a mutually satisfactory manner, in light of all the relevant business, regulatory and legal facts and circumstances.
(c) Notice. All notices or other communications required to be given hereunder shall be in writing, shall be effective when receipt is confirmed in writing, and must be given in one of the following ways: (i) by hand delivery, (ii) by certified mail, (iii) by overnight or express mail, or (iv) by facsimile, to the parties at the addresses set forth below: If to Verilogue:
Verilogue, a division of Publicis Health
If to Healthcare Provider:
[[${physicianAgreement.physician?.firstName}]] [[${physicianAgreement.physician?.lastName}]]
(d) Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to the choice or conflicts of law provisions of that or any other jurisdiction.
(e) Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law or is determined by a court of competent jurisdiction to be unenforceable, and if the rights or obligations of the Parties under this Agreement will not be materially and adversely affected thereby, such provision shall be fully severable, and this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom.
(f)
Amendment
and Waiver. No amendment of this
Agreement and no waiver of one or more of its terms may be effected unless set
forth in writing and signed by the Party to be bound. Any waiver of strict compliance with this Agreement
shall not operate as a waiver of, or estoppel with respect to, any subsequent
or other failure to so comply.
(g) Entire Agreement. This Agreement constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements and writings, whether oral or written.
(h) Assignment; Binding Effect. This Agreement shall be binding upon, and inure to the benefit of the Parties hereto, their respective successors and permitted assigns. Except as expressly provided herein, Healthcare Provider may not assign or transfer any right, or obligation hereunder without the prior written consent of Verilogue, and any such assignment or transfer shall be void.
(i) Fees and Expenses. Each party hereto shall be responsible for all fees, costs and expenses incurred by that party in connection with the preparation of and performance under this Agreement.
(j) Headings and Exhibits. The Section headings used herein have been included for convenience only and shall not be considered in interpreting this Agreement. The Exhibits to this Agreement are incorporated herein by reference.
(k) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. A facsimile transmission or other electronic transmission (such as a pdf file) of an executed counterpart of this Agreement shall have the same binding effect as an executed and delivered original thereof.
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