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 Caregiver Agreement 

THIS AGREEMENT (THE “AGREEMENT”) IS ENTERED INTO BY AND BETWEEN ONEHEALTHYCOMMUNITY, LLC (THE “COMPANY”) AND THE CAREGIVER ESTABLISHING AN ACCOUNT ON ONEHEALTHYCOMMUNITY.COM (THE “CLIENT”), AS OF THE DATE OF THE CREATION OF SUCH ACCOUNT. THIS AGREEMENT AND THE ACCOMPANYING OHC.COM SITE TERM AND CONDITIONS AND POLICIES SET FORTH THE TERMS WITH RESPECT TO THE COMPANY’S SERVICES. ACCORDINGLY, THE COMPANY AND CLIENT JOINTLY AGREE TO THE FOLLOWING TERMS AND CONDITIONS:
  1. SERVICES.
    Per the terms of this Agreement, the Company shall use commercially reasonable efforts to (i) provide OHC Members with access to information about Client and Client’s services and medical practice based on the information provided by Client and the OHC Members, respectively, including but not limited to the inquiries of the OHC Members, (ii) provide OHC Members with the means to contact and/or schedule an appointment with the Client via the OHC.com site and/or the OHC Mobile Device App (together “OHC”) (each action by an OHC Member to contact and/or schedule an appointment with the Client shall constitute a “Prospective Patient Contact”); (iii) enable Client and any Prospective Patient Contacts to communicate and interact directly with each other using OHC, and (iv) such additional services as the Company may provide and the Client authorizes the use of such services.

  2. PROSPECTIVE PATIENT CONTACT.
    Any “Prospective Patient Contact” shall mean contact information for an OHC Member (whether or not such OHC Member becomes an actual customer of Client), including but not limited to any OHC Member who is a current patient of the Client or any person utilizing the OHC SOS network, if the Client is a participant in such network. The Company shall use commercially reasonable efforts to include the following information for each Prospective Patient Contact: name and phone number, as of the time such information is supplied and submitted to the Company. Any Prospective Patient Contact provided to Client, shall be on a non-exclusive basis and Client understands that an OHC Member may contact other providers of the same and/or different health care services as Client.

  3. PRICING.
    (a) The Company shall supply Prospective Patient Contacts, and other services hereunder to Client, at the Company’s sole discretion, provided Client’s account balance with the Company is current (the “Client Account Balance”).

    (b) The applicable Transaction Fee for each Prospective Patient Contact and the other services provided by the Company shall be as set forth on the Fee Schedule. The Client Account Balance shall be modified to reflect the Transaction Fee incurred for the services provided to Client.

    (c) Client shall pay the Company the applicable Transaction & Service Fees, as set forth in the Pricing Plan posted on the OHC web site. In the event of a dispute with respect to the number and types of services the Company has provided to Client, the Company’s tracking and computer systems shall control and be solely determinative.

  4. PAYMENT & INVOICING.
    (a) The Company shall invoice Client, once per month, requesting payment of such unpaid Transaction & Service Fees incurred during the applicable period. Client shall pay the Company the unpaid Transaction & Service Fees upon receipt of such invoices, unless another payment date is set forth in writing by Company and Client.

    (b) In the event that any payment due Company is delinquent thirty (30) days after the due date of any invoice, interest shall accrue on any overdue amount and be charged against Client at the rate of five percent (5%) per month or the maximum rate permitted by law, whichever is more.

    (c) The Company reserves the right to withhold its performance under this Agreement or deactivate the Client’s account if the Company has not been paid in accordance with the terms set forth herein.

  5. MODIFICATION.
    Company may modify the applicable Transaction & Service Fees from time to time, via (i) the Company’s online client portal or (ii) by a Confirmed Communication. In each instance, such modification shall be deemed to be an amendment to and incorporated into this Agreement, as applicable, and the Company shall be permitted to make such modification to Client’s service account.

  6. CLIENT REPRESENTATIONS & COVENANTS.
    (a) Client represents and warrants that it has full power, right and authority to enter into and carry out its obligations and grant the rights and licenses under this Agreement and that this Agreement constitutes a valid and binding obligation of the Client, enforceable against Client in accordance with its terms.

    (b) Client shall ensure that all Prospective Patient Contacts (and all corresponding underlying Prospective Patient Contact information) provided hereunder are used, contacted (via direct mail, email or telephone), maintained and accessed by Client and/or Client’s affiliates in compliance with applicable law, including without limitation, the Telemarketing Sales Rule (as amended), the Telephone Consumer Protection Act of 1991 and the CAN-SPAM Act of 2003.

    (c) Client (1) represents and warrants that it has all applicable licenses, applicable insurance, certifications and accreditation, required to perform the work intended for the Prospective Patient Contacts and (2) shall bear the obligation to make all filings and obtain and maintain any and all necessary and/or applicable governmental approvals or licenses relating to Client’s business and for the use of the Prospective Patient Contacts in all such jurisdictions.

    (d) Client shall provide and maintain accurate profile data, especially their email, phone number, license number and license state information. Client shall use the OHC website to correct and/or update any information included in its profile. The Company is not liable for any erroneous, incorrect and/or expired information provided by Client.

  7. DISCLAIMER.
    EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE PROSPECTIVE PATIENT CONTACTS AND THE COMPANY’S SERVICES HEREUNDER ARE PROVIDED “AS IS.”
    COMPANY AND ITS LICENSORS, SUBCONTRACTORS, AND SUPPLIERS, TO THE FULLEST EXTENT ALLOWED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, COMPANY AND ITS LICENSORS, SUBCONTRACTORS, AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE ACCESS TO OR USE OF OHC OR THE SERVICES PROVIDED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN ANY OF THE FOREGOING WILL BE CORRECTED, OR THAT THE FOREGOING WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. THE COMPANY DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY, RELIABILTY, COMPLETENESS OR CURRENTNESS OF ANY CONTENT CONTAINED ON OHC, INCLUDING BUT NOT LIMITED TO ANY REVIEWS AND/OR EVALUATION OF CLIENT BY A THIRD PARTY PUBLISHED ON OHC.

    EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED, OR IMPLIED, WHETHER OR NOT STATUTORY, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING, USAGE, OR TRADE. THE PROVISIONS OF THIS SECTION 7 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.

    FURTHERMORE, THE COMPANY PROVIDES NO WARRANTIES REGARDING (A) THE ACCURACY OF ANY PROSPECTIVE PATIENT CONTACT DATA, (B) WHETHER THE PROSPECTIVE PATIENT CONTACTS AND THE COMPANY’S SERVICES WILL RESULT IN ADDITIONAL SALES, BUSINESS OR REVENUE TO CLIENT OR CLIENT’S AFFILIATES, OR (C) THE NUMBER PROSPECTIVE PATIENT CONTACTS THE CLIENT MAY RECEIVE.

  8. INTELLECTUAL PROPERTY.
    The Company hereby grants to Client for the term of this Agreement a non-exclusive, non-transferable, limited license to use OHC and access the Prospective Patient Contacts in connection with Client’s products/services only. Client shall have no rights to grant sub-licenses or transfer Prospective Patient Contacts to any third parties without the prior express written approval of the Company. For the avoidance of doubt, the Prospective Patient Contacts are for the benefit of the Client and Client shall not re-sell or otherwise transfer any Prospective Patient Contacts to any third party without the prior express written approval of the Company. Such license shall terminate immediately upon termination of this Agreement for any reason.

  9. CREDIT CARD AUTHORIZATION.
    Client agrees to the payment conditions set forth in OHC. Client authorizes the Company to bill the credit card provided by Client for any and all charges and fees, including recurring payments, related to the services in this Agreement. Client agrees not to initiate a chargeback with respect to any Transaction & Service Fees with the credit card issuer unless Client has exhausted all attempts to resolve any disputes directly with the Company. Client further understands that initiating a chargeback does not extinguish your obligation to pay. Client shall indemnify and hold the Company harmless against any liability pursuant to this credit card authorization.

  10. INDEMNIFICATION.
    (a) Client hereby agrees to defend and indemnify the Company against, and hold the Company harmless from any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including court costs and reasonable fees of attorneys and other professionals, whether or not involving a third party claim, which arise out of or relate to (1) any failure of Client to perform its material obligations under this Agreement or any failure of Client to perform its obligations under this Agreement in accordance with all applicable state and federal laws, rules and regulations, (2) any work (including, without limitation, marketing, installation and maintenance work) performed by Client, its agents, employees, subsidiaries and/or affiliates in connection with any Prospective Patient Contacts provided by the Company, or (3) any grossly negligent, or intentionally wrongful acts or material omissions on the part of Client.

    (b) The Company hereby agrees to defend and indemnify the Client against, and hold Client harmless from any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including court costs and reasonable fees of attorneys and other professionals claimed by third parties which arise out of or relate to (a) any failure of the Company to perform its material obligations under this Agreement or (b) any grossly negligent, or intentionally wrongful acts or material omissions on the part of the Company.

    (c) The indemnified party shall provide notice promptly to indemnifying party of any actual or threatened claim of which the indemnified party becomes aware (“Claim Notice”). The indemnifying party shall have sole control of such defense unless the indemnifying party fails or refuses to assume the defense of the Claim within five (5) business days of receiving the Claim Notice, in which case the indemnified party may assume defense of the claim without the indemnifying party’s participation. If indemnified party assumes control of the defense, indemnifying party shall remain responsible to indemnified party for any Losses, as applicable, indemnified under this Section and any expenses incurred by indemnified party. No settlement may be consummated without the express written authorization of the indemnified party unless such settlement, compromise or consent: (i) includes an unconditional release of indemnified party from all liability arising out of such claim; (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of indemnified party; and (c) does not contain any equitable order, judgment or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains or interferes with the business of indemnified party or any of indemnified party’s affiliates.
  11. TERMINATION.
    This Agreement may be terminated upon two (2) days written notice to the other party; however, such termination shall not relieve the parties of any obligation accruing prior to the effective termination date. This Agreement shall terminate automatically upon the earlier of the bankruptcy, cessation of business, or dissolution of either party. For the avoidance of doubt, Client shall pay the Company for any Prospective Patient Contacts and other services during the termination notice period. Except as otherwise provided herein, termination of this Agreement shall terminate all further rights and obligations of the Company and Client hereunder provided that if such termination is based on a breach by a party hereto, the other party shall be entitled to pursue any and all rights it has to redress such breach in law or equity. The provisions as set forth in Sections 6, 7, 10 and 12 herein shall survive the termination and expiration of this Agreement.

  12. MISCELLANEOUS.
    (a) Independent Contractor. The relationship between the Company and Client established by this Agreement is that of independent contractor and shall each conduct its respective business at its own initiative, responsibility and expense. Furthermore, the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations.

    (b) Logo Usage. Client agrees that the Company may include Client’s name, including any trade name, then-current trademark or service mark, and logo on the Company’s (i) publicly available customer list and (ii) marketing materials.

    (c) Forum and Choice of Law. This Agreement, all claims or causes of action (whether in contract or tort) that may be based upon or arise out of or relate to this Agreement or relate to the negotiation, execution or performance of the Agreement (including an representation or warranty made in connection with this Agreement), and any additional or subsequent agreements between the Company and Client hereunder shall be governed by, construed and interpreted in accordance with the laws of the State of Georgia. This Agreement shall be deemed to have been entered into and performed in Atlanta, GA, U.S.A.

    (c) Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Fulton County, GA before one arbitrator who shall be a retired judge. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules and the Federal Arbitration Act (“FAA”). Judgment on the any Arbitration Award may be entered in any court having jurisdiction over the matter arbitrated. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The Client hereby irrevocably waives any rights to participate as a plaintiff or a member of a class in connection with any class action and agrees to reimburse the Company for any and all fees, costs, and expenses incurred in any class action against the Company in which the Client participates as a plaintiff or a member of a class, in violation of this Agreement.

    (d) Limitation of Liability. EXCEPT IN CONNECTION WITH AN OBLIGATION OF INDEMNIFICATION AND CLIENT’S PAYMENT OBLIGATIONS SET FORTH HEREIN AND TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTIES’ AGGREGATE LIABILITY TO THE OTHER PARTY AND ALL THIRD PARTIES, INCLUDING ATTORNEY’S FEES, IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED AN AGGREGATE LIMIT OF THE TOTAL SUM OF SERVICE FEES ACTUALLY PAID TO THE COMPANY BY CLIENT PURSUANT TO THE TERMS OF THIS AGREEMENT IN THE THREE (3) MONTHS PRECEDING THE CLAIM GIVING RISE TO ANY SUCH LIABILITY, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED.
    EXCEPT IN CONNECTION WITH AN OBLIGATION OF INDEMNIFICATION AND CLIENT’S PAYMENT OBLIGATIONS SET FORTH HEREIN AND TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE DAMAGES, OR LOST PROFITS, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED, EVEN IF EITHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE DAMAGES WERE FORESEEABLE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY PURSUANT TO OR BASED ON THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE EARLIER OF (X) DATE OF LAST PROVISIONING OF PROSPECTIVE PATIENT CONTACT SERVICES OR (Y) THE TERMINATION OF THIS AGREEMENT.

    (e) Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes all previous agreements and proposals, oral or written, and all negotiations, representations, warranties, conversations, or discussions between the parties related to the Company’s services. Client acknowledges it has not relied on any representations or statements by the Company not included in this written Agreement. The parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the Company’s services exclusively in contract pursuant to the express terms and provisions of this Agreement and the parties hereto expressly disclaim that they are entitled to any remedies not expressly set forth in this Agreement.

    (f) Amendment. The terms of this Agreement may be amended and revised, from time to time, by the Company with at least 30 days’ prior written notice. Terms of this Agreement are available anytime online at http://www. OneHealthyCommunity.com (see “Caregiver Agreement”).

    (g) Conflict. In the event of a conflict between the OHC.com site terms and conditions and/or policies (including subsequent any written modifications or changes via the Company’s online client portal) and this Agreement, the terms of this Agreement shall govern. OHC.com site terms and conditions and/or policies (including subsequent any written modifications or changes via the Company’s online client portal) shall take precedence over the Agreement ONLY where an OHC.com site terms and conditions and/or policies, as revised, specifically references the Agreement section to be modified.

    (h) Waiver. The failure of any party hereunder to insist upon strict performance of any terms or provisions of this Agreement shall not be construed as a waiver or relinquishment for the future of any such terms or provisions. Rather such terms and provisions shall continue and remain in full force and effect. No waiver shall be deemed to have been made unless the waiver is made in writing and signed by the party making the waiver.

    (i) Severability. If any term or provision is held to be unenforceable or invalid to any extent, the remainder of this Agreement shall not be affected and each other term or provision of this Agreement shall be valid to the fullest extent permitted by law.

    (j) Force Majeure. Each party shall be excused from performance and shall not be considered to be in default with respect to any obligation hereunder, except for Client’s obligation to pay money in a timely manner for services delivered to Client or other liabilities actually incurred by the Company, if and to the extent that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event.

    (k) Notices. All notices relating to this Agreement shall be made in writing and deemed effective : (a) upon transmission when delivered by email to Client’s email address on file and such email is not returned to the sending Party as undeliverable; or (b) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service: (i) to Client at the address provided during registration; and (ii) to Company at OneHealthyCommunity.com, LLC, 3391 Glenrose Dr., Atlanta, GA 30341.
LAST UPDATED: August 5, 2016
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