Service Agreement
Parties; Program
Reference to “we”, “us”, “our” or the like is deemed to include LabFinder, LLC and its assignees and successors. Reference to “you”, “your”, “subscriber” or the like is for all purposes deemed to include the undersigned entity below and its owners, employees, agents, affiliates (by common ownership to any extent including parents and subsidiaries) and permitted successors or assigns. The term “Program” includes our website(s) including labfinder.com (and any additional and successor websites), software applications (mobile and Internet-based), instructions, materials (whether housed online, on a server/cloud or downloadable), content, layout, tables, data, consumer lead database (our registered users/consumers/subscribers) and any service, product or functionality we offer, as well as all associated intellectual property including trademarks, patents and copyrights, all now or hereafter existing. References to “including” means “including but not limited to” and “including without limitation”. In the absence of a specified term, this Agreement is deemed to remain in effect for thirty days, with automatic renewal for successive thirty day periods.
Program Functionality
The Program functionality available to you is the same as that available to all participating listing providers of the same type, and includes, among other then-available functionality, a listing of your patient service centers/radiology service locations (as subscribed to by you) searchable by the user based on his/her location; the ability of end users to schedule a visit; the ability to create a listing profile for service sites including description, business hours, photos, your logo and insurance participation; access by you to a lab user dashboard containing scheduling information (along with the ability to adjust scheduling) and scheduled user demographics including payment information; and your ability to upload test results for immediate end user access. You must upload test results (for concurrent access by consumers and the ordering practitioner) and accept electronic orders as a condition of participation (failure to do so may result in suspension of your Program functionality without any refund due for the remainder of your subscription term). You further agree to participate in our program for self-pay as well as our Widget program, each at all times during the term hereof. You must use the Widget at all times. If you do not use the Widget at any given time, do not accept electronic orders and/or provide test results through our Program for access by patients and their doctors, and/or do not participate in our self-pay program, this will not constitute any suspension of your continuing payment obligations during the term, but we can nevertheless suspend your participation in the directory until the foregoing criteria for a directory listing are re-instituted. We retain the right to update and modify functionality on a consistent basis for all users of the same type with the goal of ensuring an efficient experience for both end users and listed providers.
Payment Terms
All pricing is subject to change upon 30 days’ prior notice, except for any pricing expressly stated as locked-in during the initial 12-month period of the term. This Agreement is deemed to incorporate the payment terms of your listing/subscription/participation as if fully set forth at length herein. The amounts payable by you hereunder are exclusive of any applicable sales, use and other taxes. Late payment will accrue interest at the rate of 1.5% per month or the highest rate permitted by law, whichever is lower. Payment is due within 10 days of invoice. Any invoice over 30 days past due may result in the stoppage of service. Your payment rate will increase by 5% each contract year unless otherwise agreed.
Independent Contractors; Compliance with Law
We are independent contractors. Each party shall be solely responsible for its (including its owners’, employees’, agents’ and affiliates’) own acts and omissions and breach of this Agreement (including any adverse change in any representation and/or warranty hereunder and compliance with Applicable Law), and, to the extent not covered by insurance, you shall indemnify and hold us harmless from and against all allegations, investigations, audits, claims, costs, penalties, fines, losses and liabilities associated with the foregoing, your provision of services, operations and business and your covenants and obligations herein, including your breach hereof, adverse changes in any representations and warranties hereunder and all other acts and omissions of yours, including reasonable attorneys’ fees, including following termination. You acknowledge that we are not responsible for ensuring payment for your services by patients and third party payors (private or governmental), and you shall look solely to them and any credit card merchant or third party payment processing vendor for same. You will be solely responsible for licensure/permits/registration and the conduct of your business, billing, services, testing and practice as required by all applicable Federal and State laws, rules, regulations and third party payor (private and governmental) requirements, including, without limitation, HIPAA and state privacy and patient disclosure laws (collectively, such laws, rules regulations and payor requirements are referred to herein as “Applicable Law”) and are further solely responsible for verifying the accuracy of information provided by patients including via our Program and violation of Applicable Law by you. You represent and warrant that you shall at all times conduct your business, testing and practice in compliance with Applicable Law and have at all times done so in the past. You further represent and warrant that you have never been excluded or debarred from participation in any governmental healthcare benefit payment program, including but not limited to Medicare and Medicaid and you have not been convicted of any crime relating to the conduct of your business or practice or the provision of or billing for healthcare services or supplies. You assume the sole risk and liability for privacy breaches associated with your violation of Applicable Law and transmission of information to inaccurate e-mail addresses. You represent that the execution of this Agreement has been duly authorized and that you are duly organized and a validly existing entity with such licenses, registration and permits in the states in which you do business and with respect to the state residents you service to assure your compliance with Applicable Law, and will provide proof of same promptly upon request. You are under no contractual or other restriction or obligation which is inconsistent with the execution of this Agreement, the performance of your duties hereunder, or the rights granted to us hereunder. This Section 4 shall survive termination of this Agreement.
Termination
This Agreement commences upon acceptance and may be terminated upon the following events, at the terminating party’s option (and we can suspend access to the Program during the pendency of any cure by you but which will not affect any amounts still owing pursuant to any locked-in term or remaining notice or cure period): (i) the mutual written agreement of the parties; (ii) by us without cause at any time upon thirty (30) days’ prior written notice; (iii) notice of non-renewal by you at least thirty (30) days prior to the expiration of the initial twelve (12) month period of the term; (iv) following the expiration of the initial 12 month period of the term, thereafter by you without cause at any time upon ninety (90) days’ prior written notice; (v) if you fail to pay the amounts owed hereunder when due; or (vi) if you fail to observe or perform or otherwise breach any of your obligations, covenants or warranties hereunder. No refund is available for amounts paid-to-date and accruing, as applicable, through the expiration of your elected subscription period as a result of termination. For the avoidance of doubt, this means that payment is still owing for the remainder of any locked-in term during which you cannot terminate (i.e. the initial 12 month period of the term) or remaining period after notice is given of termination without cause.
Confidentiality
The parties covenant and agree that all information which is of a confidential or proprietary nature, whether disclosed orally or in writing (and whether or not marked confidential) (“Confidential Information”), are confidential trade secrets and proprietary information of, and are of great value to, the respective parties. This confidential and proprietary information includes, without limitation, that concerning or relating to know-how, trade secrets, protocols, procedures, forms, marketing, lists, reports, information concerning the other’s and its clients’/licensees’ business, practice, costs, fees, agreements, financial arrangements, business plans, surveys, professional relationships and arrangements, and information concerning operations, strategy and financial condition (including books and records), and further with respect to us, our Program. At all times during the term of this Agreement (except as necessary to fulfill its obligations hereunder and render services hereunder) and following its expiration or termination for any reason, the parties agree not to disclose to any third parties any Confidential Information of the other or any affiliate, without the other’s express prior written consent in each instance. The parties shall at all times (a) use due care to protect all Confidential Information against public disclosure, and (b) shall disclose Confidential Information only to those who need to know such Confidential Information for the purposes of its business and practice hereunder. Notwithstanding the forgoing, a party shall not have any obligation with respect to any information which is generally available to the public (through no fault of a party) or any Confidential Information that a party is legally obligated to disclose to a third party; provided that prior to making any such legally required disclosure, you shall give us prompt written notice, and to the extent the disclosure is legally mandated, limit the extent of the disclosure to the minimum amount necessary to comply with the legal requirements. Information shall be deemed publicly available if it becomes a matter of public knowledge, is in the public domain, is contained in materials available to the public or is obtained by a party from any source other than the other party (or the other party’s agents or outside advisors), provided that such source is not, to the knowledge of such party, bound by a confidentiality agreement with the other party with respect to such information.
Program Ownership
You acknowledge that our Program whether or not marked as “confidential” is special and unique proprietary assets and trade secrets of ours (individually and collectively, part of the “Confidential Information” proprietary to us). You agree that at all times during the term of this Agreement and following its termination that you will not, either directly or indirectly, disclose, share, use, reproduce, derive materials from, reverse engineer or in any manner divulge to any person or entity, any such Confidential Information, except for purposes of use of the Program for the purposes intended (though patient information for patients treated by you shall also belong to you). This Agreement merely constitutes a revocable non-exclusive and non-transferable license to use and participate in the Program on the terms and conditions herein. The license granted does not include any right to use the Program for purposes other than for use by those individuals authorized by you under this Agreement with respect to services rendered by you or to copy, reproduce, sell, assign, transfer, lease, sublease or sublicense the Program for any purpose or to any third party, in whole or in part. The above license rights granted will not affect the exclusive ownership of the Program by us. If you devise any revisions, enhancements, or improvements in the Program, you will promptly disclose such improvements to us, and such improvements will be our sole property, and you will have no rights whatsoever in same. You will cause each authorized user accessing the Program to abide by the terms and conditions of this Agreement as if each were a party hereto. This Section 7 and Section 6 above shall survive termination of this Agreement.
Costs of Connectivity; Downtime
You are solely responsible, at your own cost and expense, for acquiring, installing and maintaining any connectivity equipment, hardware, software and other equipment as may be necessary for you and your authorized users to connect to and use the Program functionality or receive the information derived therefrom. We will make commercially reasonable efforts to restore functionality when down time is caused by us, and the Agreement remains subject to the termination rights herein without fee abatement or other offset or penalty. Our sole responsibility for any allegation of infringement of a third party’s intellectual property shall be to replace the functionality with equivalent functionality so long as we desire to continue to offer such functionality for all such similarly situated users, and this Agreement remains subject to your termination rights herein.
Data
You acknowledge that we retain independent possession and ownership of, and may share with other persons and entities the data and information from utilization of the Program (including any patient information which is de-identified if required under HIPAA as then-applicable) (e.g., including, without limitation, for statistical purposes, data aggregation, research study, analysis, warehousing, sale or otherwise). This Section 9 shall survive termination of this Agreement.
Name and Likeness
You hereby grant us the non-exclusive, worldwide right and license to publish your company name, photos and logo (along with any additional content you provide us) on our website and for purposes of otherwise advertising/marketing and promoting the Program and your participation, for so long as you remain a participating listed provider, for no consideration due to you for same. This further includes our right to issue a press release concerning your participation. Termination of your participation shall not affect publications already disseminated prior to the effective termination date.
NO WARRANTY
CONSUMERS (OUR USERS/INDIVIDUAL SUBSCRIBERS) CHOOSE LAB SERVICES ON THEIR OWN. WE MAKE NO GUARANTY, PROMISE OR WARRANTY WHATSOEVER AS TO WHETHER USERS WILL CHOOSE TO SEEK SERVICES WITH YOU OR FIND YOU OR WHETHER SEARCH ENGINE PLACEMENT OF OUR WEBSITE OR OTHERWISE WILL RESULT IN THE SELECTION OF YOUR SERVICES. YOU PARTICIPATE IN OUR LISTINGS AND SERVICES AND AGREE TO THE FEES HEREUNDER AT YOUR SOLE RISK AND PAYMENT OF AMOUNTS DUE BY YOU TO US ARE NOT CONTINGENT ON ANY SEARCH ENGINE PLACEMENT OF OUR WEBSITE, LISTING PLACEMENT OF YOUR LOCATION WITHIN OUR RESULTS, SUCCESS OR UTILIZATION OF YOUR SERVICES. MARKETING, ADVERTISING AND PROMOTIONAL OR SALES MATERIALS OR COMMUNICATIONS OF ANY NATURE DO NOT CONSTITUTE ANY REPRESENTATION OR WARRANTY AND ARE NOT INCORPORATED INTO THIS AGREEMENT, AND YOU WILL NOT RELY ON SAME. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, WE UNDERTAKE NO OBLIGATION TO PROVIDE ERROR-FREE OR FAULT-FREE PROGRAM(S), WEBSITE ACTIVITY OR AVAILABILITY, DATA, INFORMATION, ITEMS, SUPPLIES OR EQUIPMENT. ALL PROGRAMS, SUPPLIES, ITEMS, SERVICES AND EQUIPMENT PROVIDED OR ARRANGED FOR BY US ARE PROVIDED “AS IS”. WE DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO ANY PROGRAMS, SUPPLIES, EQUIPMENT, SERVICES OR ITEMS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, TITLE, DESIGN, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM CONDUCT, COURSE OF DEALING, CUSTOM, OR USAGE IN TRADE. This Section 11 shall survive termination of this Agreement.
LIMITATION OF LIABILITY
IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, INCURRED BY YOU OR SUCCESSORS, WHETHER IN AN ACTION IN CONTRACT (INCLUDING PURSUANT TO ANY INDEMNITY GIVEN BY US IN THIS AGREEMENT), TORT OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. ADDITIONALLY, IN NO EVENT SHALL WE BE LIABLE FOR DAMAGES IN AN AMOUNT MORE THAN THE AMOUNT ACTUALLY PAID BY YOU TO US OVER THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING NOTICE OF THE BREACH. THE FOREGOING LIMITATIONS OF THIS SECTION WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. This Section 12 shall survive termination of this Agreement.
Non-Competition
You expressly agree that you shall not, directly or indirectly, during the period of your registration/participation and for a period of one (1) year after the effective date of cancellation thereof other than on behalf of yourself only (which includes affiliates as defined above): (i) operate, manage, market, own or have any financial or contractual relationship in or with any website or mobile software application (app) that serves as a search engine and/or scheduling system for, whether alone or in combination with any of the following, clinical laboratories, laboratory patient service centers (PSCs) and/or diagnostic radiology practices and facilities, or (ii) purchase, use, perform, or agree to perform, any services for any third party that develops, promotes, sells, licenses, distributes, or provides services, or has plans to do any of the foregoing, that would compete directly with the technology or functionality being marketed, sold, licensed, distributed, provided or otherwise made available by us to you and to patients in the Program and website.
Non-Disparagement
At all times during the term of this Agreement and following its expiration or termination for any reason, the parties agree to not, directly or indirectly, in public or private, whether in oral, written, electronic or other format, disparage, deprecate, impugn or otherwise make any statements or remarks that would tend to or be construed to defame or slander the personal or professional reputations, professional qualifications, services, website/application, Program, functionality and/or business of the other party, including its owner(s), parents, subsidiaries, affiliates and/or its/his/her/their owners, independent contractors, employees, agents, affiliates, subsidiaries, parents and/or successors and/or clients/licensees/subscribers, nor shall such party in any manner assist or encourage any third party in doing so. This shall not prohibit the making of claims and the enforcement of rights and remedies arising under this Agreement, testifying truthfully under oath, nor shall it or any other provision in this Agreement prohibit or preclude cooperation with investigations or inquiries by governmental authorities. This Section 14 shall survive termination of this Agreement.
Remedies
In the event of a breach or threatened breach of any of the covenants herein, in addition to any other rights or remedies which the party may have at law and in equity which shall be cumulative and not alternative, such party shall further be entitled to such equitable and injunctive relief (including a temporary and permanent injunction, without the requirement of the posting of a bond) as may be available from a court of competent jurisdiction to restrain the other party (and their respective owners, affiliates and successors) from any violation or continued violation of such covenant. The affected party shall not, as a result of the time involved in obtaining such relief, be deprived of the benefit of the full period of the covenant. Accordingly, the covenant shall be deemed to have the duration specified herein, computed from the date the relief is granted, but reduced by the time between the period when the covenant began to run and the date of the first violation of the covenant. If any restriction or any other provision contained in this Agreement shall be deemed to be invalid, illegal or unenforceable by reason of the extent, duration or scope thereof, or otherwise, then the court making such determination shall reduce such extent, duration, scope or other provision hereof, and in its reduced form, such restriction or provision shall then be enforceable in the manner contemplated hereby. This Section 15 shall survive termination of this Agreement.
Miscellaneous
We may amend this agreement at any time, and you will be required to accept or otherwise acknowledge your agreement to the changes in order to maintain your listing/subscription and access to our services (other than any locked-in pricing). If you fail to acknowledge your acceptance of any such change then your listing will expire immediately at our option and you will not be entitled to any refund for payments to-date or those accruing during the remaining subscription/listing period. Notices hereunder may be given by e-mail to the registered contact of the party (deemed given immediately), by overnight mail to the party’s last known principal address (deemed delivered the next day), or first class mail to such address (deemed given three days later). The Agreement is not assignable by you without our written consent, though we may delegate our rights and obligations and assign this Agreement to any transferee, assignee or successor to our business or assets to which this Agreement relates. If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held to be legally invalid, inoperative or unenforceable, the remainder of this Agreement shall not be affected unless the invalid provision substantially impairs the benefits of the remaining portions of this Agreement to the other party. Any consent or waiver executed in writing by a party shall be binding upon such party from and after the date of execution thereof unless a later or earlier date is specified therein. Any delay or failure to exercise any remedy or right under this Agreement (whether a default exists or not) shall not be construed as a waiver of such remedy or right, or an acquiescence in such default, nor shall it affect any subsequent default of the same or a different nature. Any reference to termination herein shall similarly apply to expiration, non-renewal or cancellation of a listing or subscription. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement is governed by the laws of the State of New York without reference to its conflicts of law provisions. Each party hereby agrees and consents that any legal action or proceedings with respect to this Agreement shall only be brought in the courts of the State of New York in New York County. By execution and delivery of this Agreement, each such party hereby (i) accepts the jurisdiction of the aforesaid courts; (ii) waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the venue set forth above; and (iii) further waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each party hereby acknowledges personal jurisdiction in New York for purposes hereof. Notwithstanding any other rights a party may have under law or equity, any cause of action you may have arising out of or related to this Agreement must commence within one (1) year after the cause of action arises. Otherwise, the cause of action is permanently barred. In the event that any party brings litigation at law or in equity arising out of this Agreement, if we are the substantially prevailing party, then we shall be entitled to all expenses incurred, including but not limited to, reasonable attorneys’ fees, collection and court costs incurred in and leading up to such proceeding, and the costs of collection on any judgment. This Agreement shall not be modified, except by a writing signed by all of the parties hereto. Any provision of this Agreement which by its express terms or by reasonable implication must survive expiration or termination in order to be effectuated shall so survive expiration or termination.
Widget description:
LabsThe Widget is a clickable logo that you will at all times during the term place prominently at the top of your homepage enabling your website visitors to search for and schedule testing with your patient service centers (PSCs; it only shows your PSC locations as results).
Radiology
The Widget is a clickable logo that you will at all times during the term place prominently at the top of your homepage enabling your website visitors to search for and schedule testing with your radiology centers (it only shows your locations as results).
Prior Authorization (for Radiology only)
You further agree as follows, which are deemed fully incorporated into the Terms and Conditions as if a part thereof:
You must participate in the Prior Authorization program at all times. If you do not participate in such program at any given time, this will not constitute any suspension of your continuing subscription payment obligations during the term, but we can nevertheless suspend your participation in the directory until this criteria for maintaining a directory listing is re-instituted.
“Prior authorization” means any practice implemented by a carrier or payor in which coverage of a health care service is dependent upon a covered person or a health care practitioner obtaining approval prior to the service being performed.
In rendering the services, LabFinder is relying solely on information provided by the patient and/or ordering and/or rendering healthcare providers and suppliers, and does not represent or warrant that it will take steps to verify the information provided to it for the conduct of the services hereunder. As such, LabFinder cannot guaranty the accuracy, current state of the information, or completeness of the information at the time of the request for authorization. LabFinder does not conduct utilization review or make any determination or assessment of medical necessity. LabFinder will not be liable for any damages of any nature attributable to participation in this program, including with respect to any failure to obtain reimbursement from and/or refunds or offsets by carriers/payors, or costs associated therewith. Participants including subscriber assume the sole and absolute risk of participation including of any liability to carriers/payors and patients. Subscriber will look solely to the patient and carrier/payor for ultimate payment/reimbursement including with respect to any dispute regarding payment and/or care, and will be solely responsible for having patients sign any necessary agreements allowing for subscriber to enforce same against such third party. Subscriber acknowledges that prior authorizations are not a guaranty of payment or a verification of patient eligibility under the applicable carrier/payor plan, and payment/reimbursement eligibility is ultimately subject to the terms and conditions of participation of the patient and subscriber with the applicable carrier or payor plan. Carriers and other payors retain the right to review the medical necessity of services, eligibility for services, and benefit limitations and exclusions even after a patient receives the services. IN NO EVENT SHALL LABFINDER BE LIABLE TO SUBSCRIBER FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS PRIOR AUTHORIZATION PROGRAM, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT OR IN CONTRACT. SUBSCRIBER MAY NOT ASSERT ANY CLAIM AGAINST LABFINDER RELATED TO THESE SERVICES MORE THAN ONE (1) YEAR AFTER SUCH CLAIM ACCRUED.