TERMS AND CONDITIONS
These Terms and Conditions (the “Terms”) shall govern the Marketing Services Agreement (the “MSA”) Healthcare Call Center, Inc. (“Healthcare Call Center”) into which it is incorporated. The Terms and the MSA are collectively, this “Agreement.” The counterparty to the Agreement is referred to below as the “Client”
- SERVICE.
Subject to the terms of this Agreement, Healthcare Call Center will provide the Client with the marketing services (the “Services”), described in the MSA. Healthcare Call Center shall use commercially reasonable efforts to provide the Services. Healthcare Call Center shall provide 2 hours of interactive consulting (e.g., face-to-face, online, telephone or revision assistance) to Client as part of the base Services. Any Services in excess of these hours shall be subject to additional fees to be quoted and agreed to in writing by the Parties. Client acknowledges that Healthcare Call Center may perform Services for other companies and nothing in this Agreement shall restrict such activities.
- PLACE WHERE SERVICES WILL BE PERFORMED
Healthcare Call Center will perform most of the Services at Healthcare Call Center’ offices and/or virtually. In addition, Healthcare Call Center will perform the Services on the telephone, via email, or at such other place(s) as necessary to perform the Services.
- INDEPENDENT CONTRACTOR
Both Client and Healthcare Call Center agree that Healthcare Call Center will act as an independent contractor in the performance of its duties under this Agreement. Nothing contained in this Agreement shall be construed to imply that Healthcare Call Center, or any employee, agent or other authorized representative of Healthcare Call Center, is a partner, joint venturer, agent, officer or employee of Client.
- CONFIDENTIAL INFORMATION
Each party (the “Receiving Party”) will treat as confidential and properly safeguard any and all information, documents, papers, programs and ideas relating to the other party (the “Disclosing Party”), its clients, operations, finances and products, disclosed to the Receiving Party and designated by the Disclosing Party as confidential or which should be reasonably understood to be confidential (“Confidential Information”), except that information that (a) is or falls into the public domain without violation of this Agreement, (b) is required to be disclosed under the legal process, (c) is disclosed to the Receiving Party by a third party which is not under an obligation of confidentiality to the Disclosing Party, (d) was already known to the Receiving Party through proper legal channels and/or (e) is independently developed by the Receiving Party without reference to the Confidential Information shall not be deemed Confidential Information. The Receiving Party shall inform the Disclosing Party of all requests for or inquiries into the Disclosing Party’s Confidential Information by third parties and shall only provide same when legally compelled to do so after notice to the Disclosing Party and providing the Disclosing Party with sufficient time to permit the Disclosing Party to seek a protective order.
- REPRESENTATIONS, WARRANTIES AND COVENANTS
The Client hereby represents, warrants and covenants that: (i) it is the owner of the Media Properties or legally authorized to act on behalf of the owner of such Media Properties for the purposes of this Agreement; (ii) it has all necessary rights and authority to enter into this Agreement; and (iii) it will act in accordance with all applicable laws and covering its contractual obligations hereunder. Healthcare Call Center hereby represents, warrants and covenants that: (i) it will perform the Services in a professional manner and will act in accordance with all applicable laws covering its contractual obligations hereunder; and (ii) it has all necessary rights and authority to enter into this Agreement. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE CONSULTING SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. CHIROQUEENS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS. CHIROQUEENS MAKES NO WARRANTY THAT (I) THE CONSULTING SERVICES WILL MEET COMPANY’S REQUIREMENTS OR EXPECTATIONS, (II) THE CONSULTING SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE CONSULTING SERVICES WILL BE ACCURATE, RELIABLE, OR MEET COMPANY’S EXPECTATIONS, OR (IV) ANY ERRORS IN THE CONSULTING SERVICES WILL BE CORRECTED. COMPANY ACKNOWLEDGES THAT CHIROQUEENS DOES NOT WARRANT OR GUARANTEE ANY PARTICULAR OUTCOME, RESULT, OR BENEFIT FROM THE SERVICES
- LIMITATION OF LIABILTY
Healthcare Call Center and its owners, officers, employees, agents, sub-contractors or licensors, shall not be liable to Client or its owners, officers, employees, agents, sub-contractors or licensors for claims for incidental, indirect, punitive, exemplary, consequential, or special damages, including any damages for loss of profits, loss of use or revenue, loss of savings, or losses by reason of cost of capital, connected with, or arising or resulting from, any performance or lack of performance under or other breach of this agreement, even if such damages were foreseeable or a Party advised of the possibility of such damages, and regardless of whether a claim is based on contract, warranty, tort (including negligence or strict liability), or any other legal or equitable principle. The foregoing disclaimer shall not apply to the extent prohibited by applicable law. Healthcare Call Center’ total liability for all damages, losses, and causes of action (whether in contract, tort (including negligence), or otherwise) to Client shall not exceed the lesser of (1) the average monthly billing to Client by Healthcare Call Center or (2) $2000.
- GOVERNING LAW AND DISPUTE RESOLUTION
(a) This Agreement and the rights of the Parties hereunder shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to the principles of conflict of laws.
(b) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules. The arbitration shall be conducted in Baltimore, Maryland, and shall be governed by Maryland law without regard to conflict of law principles. The arbitration shall be conducted by a single arbitrator selected in accordance with the AAA rules. The costs of the arbitrator shall be shared equally by the Parties. The prevailing Party in any arbitration or legal proceeding related to this Agreement shall be entitled to recover from the non-prevailing Party all reasonable attorneys’ fees, arbitrator fees, costs and expenses incurred by the prevailing Party. The arbitrator’s decision shall be final and binding on the Parties, and judgment on the arbitration award may be entered in any court having jurisdiction thereof.
- FAILURE TO MAKE PAYMENT
(In the event of late or nonpayment by Client to Healthcare Call Center, Healthcare Call Center may immediately suspend or terminate all services upon written notice to Client, and Client shall be responsible for all costs of collection, including reasonable attorneys’ fees.
- MISCELLANEOUS
(a) Assignment, This Agreement shall inure to the benefit of the Parties hereto, their administrators and successors in interest. This Agreement shall not be assignable by either Party hereto without the prior written consent of the other.
(b) Rights to Work Product. Healthcare Call Center shall have the right to use any advertisements or marketing materials created under this Agreement as samples or examples of its work, provided that Client’s confidential information is appropriately protected and Client’s prior written approval (which may be given by email) is obtained for each such use.
(c) Entire Agreement. This Agreement, together with the Exhibits referred to herein which are incorporated herein by this reference, constitutes the entire agreement between the Parties hereto with respect to the transactions contemplated hereby and supersedes all prior verbal and written agreements and understandings related thereto. Healthcare Call Center reserves the right to modify or amend these Terms at any time by providing Client with fifteen (15) days prior written notice (which may be given by email) of such changes. Client’s continued use of the Services following such notice period shall constitute acceptance of the modified Terms.
(d) Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligations), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (i) acts of God; (ii) flood, fire, earthquake, epidemic, pandemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities. The affected party shall give notice within 5 business days of the Force Majeure event to the other party, stating the period of time the occurrence is expected to continue.
(e) Amendment and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing (which may include email) by the Parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing (which may include email) by the Party making the waiver.
(f) Partial Invalidity. If any provision hereof is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance wherefrom. Furthermore, in lieu of such illegal, invalid or unenforceable provision there shall be added automatically by Client as a part hereof a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and legal, valid and enforceable.
(g) Interpretation. The headings and captions contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement, and shall not be referred to in connection with the construction or interpretation of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(h) Non-Disparagement. Client agrees not to disparage or denigrate Healthcare Call Center orally or in writing, and that neither you nor anyone acting on your behalf will publish, post, or otherwise release any material in written or electronic format, make speeches, gain interviews, or make public statements that mentioned the company, its operations, clients, employees, products, or services without the prior written consent of the company.
(i) Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been sufficiently given if delivered personally, by courier service, or sent by email, to the addresses set forth in the MSA or to such other address as either party may have furnished to the other in writing. Notices shall be deemed received (i) if delivered personally or by courier, upon delivery, or (ii) if sent by email, immediately.
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