Last Updated: May 1, 2018
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Conversion Whale, LLC (“Conversion Whale”) will provide to the Practice the Services selected by the Practice (the “Services”) on the Conversion Whale Services Agreement (the “Services Agreement”), which is incorporated herein by reference, through Conversion Whale and/or its affiliates and/or designees. Conversion Whale may change the Services offered (whether adding additional Services or cancelling Services) at any time upon delivery of a revised Services Agreement. The Practice, may, but shall not be required to, add additional or any new Services during the Term of the Agreement.
The Term of the Services Agreement shall begin on the date of execution by the Practice and shall be either a month to month or annual term, depending on the election by the Practice. The Practice shall provide all necessary and required information to Conversion Whale as required to provide the Services, and the Services shall commence within forty-five (45) business days of receipt of the required information. Unless otherwise terminated as provided in these Terms and Conditions or the Services Agreement, month-to-month contracts will automatically renew on a month-to-month basis, and quarterly contracts will automatically renew for successive quarterly terms unless written notice of non-renewal is provided by either Party to the other Party at least 30 days prior to the expiration of the then-current annual term. The initial Term and all renewal terms are referred to herein as the “Term”. Either Party may terminate the Service Agreement for any or no reason by providing 30 days prior written notice to the other Party. Conversion Whale may also terminate the Services Agreement and immediately cease providing all Services to the Practice, without notice, if the Practice fails to pay any amounts due under the Services Agreement within ten (10) days of the due date.
In consideration for Conversion Whale’s Services, Practice will pay Conversion Whale, or its designees, the amounts corresponding to the Practice’s elections of Services on the Services Agreement.
The Practice may be required to enter into third party vendor agreements with Conversion Whale vendors. Any such contract does not change or amend these Terms and Conditions or the Services Agreement. The Practice should not pay any service fees to any vendor unless specifically noted and agreed to by the Parties in writing.
Notwithstanding any provision contained herein or in the Services Agreement to the contrary, the Practice and Conversion Whale each understand and agree that the Parties hereto are independent contractors and that therefore neither the Practice nor Conversion Whale is an employee, partner, joint venturer, or agent of the other. Neither Party shall have the right to make any promises, warranties or representations, or to assume or create any obligations, on behalf of the other Party.
THE PRACTICE AGREES TO INDEMNIFY, DEFEND AND HOLD CONVERSION WHALE, AND ITS AFFLIATES, OFFICERS, DIRECTORS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY CLAIMS ASSERTED BY ANY THIRD PARTIES AGAINST CONVERSION WHALE ARISING FROM CONVERSION WHALE’S RELATIONSHIP WITH THE PRACTICE PURSUANT TO THE SERVICES AGREEMENT. THE PRACTICE AGREES TO FURTHER INDEMNIFY, DEFEND AND HOLD HARMLESS CONVERSION WHALE, AND ITS AFFLIATES, OFFICERS, DIRECTORS, AND EMPLOYEES FROM ANY AND ALL LIABILITY, LOSS, DAMAGE, CLAIM OR EXPENSE OF ANY KIND, INCLUDING COSTS AND ATTORNEYS’ FEES WHICH RESULT FROM THE ACTS OR OMISSIONS BY THE PRACTICE, ITS AGENTS OR EMPLOYEES, REGARDING THE DUTIES AND OBLIGATIONS OF THE PRACTICE UNDER THE SERVICES AGREEMENT OR THESE TERMS AND CONDITIONS. CONVERSION WHALE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AGREEMENT OR THESE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR REVENUES. IN NO EVENT SHALL DAMAGES FOR EITHER PARTY EXCEED THE VALUE OF THE TERM OF THE SERVICES AGREEMENT.
Notwithstanding the expiration or termination of the Services Agreement, Section 3 (as it relates to unpaid Conversion Whale Service Fees), 7 (Indemnity, Release and Waiver of Liability), 8 (Survival), 10 (Governing Law; Venue), 16 (Attorneys’ Fees), 18 (HIPAA Compliance), 19 (No Referral Arrangements), and 20 (Access to Records, if applicable) will survive.
Each Party shall carry out all activities undertaken by it pursuant to the Services Agreement or these Terms and Conditions in conformance with all applicable federal, state, and local laws, rules, and regulations.
The Services Agreement, these Terms and Conditions and all actions arising, in whole or in part, under or in connection with the Services Agreement or these Terms and Conditions shall be governed by and construed in accordance with the domestic substantive laws of the State of Florida, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. The Parties hereby agree that venue for any and all disputes arising from or relating to the Services Agreement or these Terms and Conditions shall be in the state or federal court of competent jurisdiction located in Broward County, Florida, and each of the Parties hereby consent to the exclusive jurisdiction of such courts.
The Services Agreement and these Terms and Conditions constitute the entire final agreement between the Parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements between the Parties hereto, both oral and written, concerning the subject matter hereof. Except as provided in Section 1 for the amendment of Services to be provided, the Services Agreement and these Terms and Conditions may not be amended or modified except by a writing signed by all of the Parties hereto.
Conversion Whale may transfer and assign the Services Agreement and these Terms and Conditions without the prior consent of the Practice. The Practice shall not assign the Services Agreement or these Terms and Conditions without Conversion Whale’s prior written consent. The term “assign” as used in this Section 12 shall include without limitation, any dissolution, merger, consolidation or other reorganization of a Party; any sale of all or substantially all of the assets of a Party; any issuance, sale, gift, transfer or redemption of any equity ownership of a Party or other interest in a Party (whether voluntary, involuntary or by operation of law, or any combination of the foregoing) of any of the direct or indirect power to affect the management or policies of a Party; or any direct or indirect change in fifty percent (50%) or more of the ownership interest of the Practice.
If any provision of the Services Agreement or these Terms and Conditions shall be held to be invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision and shall not in any way affect or render invalid or unenforceable any other provision of the Services Agreement and these Terms and Conditions, and the Services Agreement and these Terms and Conditions shall be carried out as if such invalid or unenforceable provision were not contained herein. It is the intention of the Parties that if any such provision is held to be illegal, invalid or unenforceable, there will be added in lieu thereof a provision as similar in terms to such provision as possible and be legal, valid and enforceable.
The waiver by either Party of any breach of any provision of the Services Agreement and these Terms and Conditions shall not be construed as a waiver of any subsequent breach of the same or other provision.
The Parties shall execute and deliver all documents, provide all information and take or refrain from all such action as may be necessary or appropriate to carry out the stated purposes of the Services Agreement and these Terms and Conditions.
If any litigation arises as a result of the terms, conditions or provisions of the Services Agreement or these Terms and Conditions, the prevailing Party shall be entitled to recover reasonable attorneys’ fees at all pre-trial, trial and appellate levels, as well as all costs and expenses. In addition, the prevailing Party shall be entitled to recover reasonable attorney’s fees and costs incurred in enforcing any judgment arising from a suit under the Services Agreement or these Terms and Conditions. This post-judgment attorney’s fees and costs provision shall be severable from the other provisions of these Terms and Conditions and shall survive any judgment on such suit and is not to be deemed merged into the judgment.
The section headings contained herein are for reference purposes only and are not to be deemed a part of these Terms and Conditions. Whenever the context hereof requires, the gender of all words shall include the masculine, feminine and neuter, and all words shall include the singular and plural.
Notwithstanding anything in the Services Agreement or these Terms and Conditions to the contrary, the Parties agree to enter into a Business Associate Agreement executed to be effective as of the Effective Date. The Parties further agree to comply with any state law and regulations that govern or pertain to the confidentiality, privacy, security of, and electronic transactions and code sets pertaining to, information related to patients.
The Parties hereby acknowledge and agree that no benefits to the Parties hereunder require or are in any way contingent upon the admission, recommendation, referral or any other arrangement for the provision of any item or service offered by the Practice or any of its affiliates, to any patients of the Practice, or the Practice’s employees or agents. Conversion Whale shall neither have nor exercise any control or direction over the number, type or recipient of patient referrals made by physicians, and nothing in the Services Agreement or these Terms and Conditions shall be construed as directing or influencing such referrals. None of Conversion Whale’s activities contemplated under the Services Agreement or these Terms and Conditions or otherwise shall constitute obligations of Conversion Whale to generate patient flow or business to the Practice in a manner that is in violation of any applicable health care laws. Further, there is absolutely no intent for Conversion Whale in any manner to be compensated to generate patients for the Practice. Rather, the Practice has engaged Conversion Whale to provide the Services in order to enable the Practice to focus on delivering the highest quality of patient care.
THE PRACTICE AND CONVERSION WHALE HEREBY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN CONNECTION WITH THE ENFORCEMENT OR INTERPRETATION BY JUDICIAL PROCESS OF ANY PROVISION OF THE SERVICES AGREEMENT OR THESE TERMS AND CONDITIONS, AND IN CONNECTION WITH ALLEGATIONS OF STATE OR FEDERAL STATUTORY VIOLATIONS, FRAUD, MISREPRESENTATION OR SIMILAR CAUSES OF ACTION OR ANY LEGAL ACTION INITIATED FOR THE RECOVERY OF DAMAGES FOR ANY CLAIMS ARISING OUT OF THE SERVICES AGREEMENT, THESE TERMS AND CONDITIONS OR THE RELATIONS BETWEEN THE PARTIES, WHETHER NOW EXISTING OR ARISING IN THE FUTURE.
You and we agree that the relationship contemplated by our marketing Agreement is a unique and individual relationship between the parties and will be characterized by unique circumstances, actions and experiences that relate only to you and your relationship with us. Therefore, you and we agree that any litigation between or among the parties to our marketing Agreement and any of their Related Parties will be conducted on an individual basis and not on a consolidated, group, or class-wide basis.