Independent Contractors; Compliance with Law
We are independent contracting parties. 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, practice, 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 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 assume the sole risk of and liability for privacy breaches by you as well as for any associated with transmission of information to inaccurate e-mail addresses. You represent that the execution of this Agreement has been duly authorized (with the accepting individual having the full power and authority to execute this Agreement on behalf of the practice) 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. 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 2 shall survive termination of this Agreement.
This Agreement commences upon acceptance and may be terminated by either party at any time upon immediate written notice. We may store information for your de-activated portal even after termination by either party for so long as required by law/regulation or permitted by law/regulation.
You acknowledge that our Program whether or not marked as “confidential” is special and unique proprietary assets and trade secrets of ours (further constituting our “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 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. 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. This Section 4 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 penalty to us.
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). For the avoidance of doubt, LabFinder, LLC is hereby authorized to use and exploit de-identified data and healthcare information derived by it from your use of and integration with the LabFinder website and associated mobile app, for any purpose, including for data aggregation, analysis, research, study and sale, and you have no rights in or to any proceeds relating thereto. This Section 6 shall survive termination of this Agreement. You acknowledge that you will be required to sync your electronic medical record (EMR) patient demographic data with us in order to enable auto-completion of your patient’s demographic information into our registration system when scheduling tests/imaging through us. At such time that we sync such information, we will concurrently on your behalf (through your e-mail domain) notify all of your patients in such EMR system of your participation in our Program, as well as periodically thereafter at our option.
Name and Likeness
You hereby grant us the non-exclusive, worldwide right and license to publish your name, 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, for so long as you remain a participating user, and further authorize us to share the identity and payor mix of your practice and professionals with current and potential clinical laboratory and radiology subscribers, for no consideration due to you for same. If you are a physician or other professional practice or facility with in-office phlebotomy and are participating in the search engine listing for your office/facility phlebotomy services on LabFinder.com or its associated mobile app, your listing will appear for each clinical laboratory you utilize for those payor plans in which the patient participates, subject to exceptions for private payment and as otherwise determined by us. Termination of your participation shall not affect publications already disseminated prior to the effective termination date.
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, REPORTS, RECORDS, 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 DATA, INFORMATION, REPORTS, 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 8 shall survive termination of this Agreement.
LIMITATION OF LIABILITY
IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, INCURRED BY YOU OR SUCCESSORS, WHETHER IN AN ACTION IN CONTRACT, 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, IF ANY, 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 9 shall survive termination of this Agreement.
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: (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, patient service centers 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. This Section 10 shall survive termination of this Agreement.
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 11 shall survive termination of this Agreement.
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 12 shall survive termination of this Agreement.
Prior Authorization Program
As a LabFinder user, you can enjoy the benefit of prior authorization services offered by LabFinder. We do, however, retain the right to terminate your participation in this program at any time, for any or no reason. “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, including you, 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. You are solely responsible for all determinations of medical necessity for any order you provide a patient, and for the accuracy and completeness of the information you provide to us. LabFinder will not be liable for any damages of any nature attributable to your participation in this program, including with respect to any allegation or audit disputing medical necessity and/or with respect to allegations or findings of violation of law, regulation and/or payor requirements as attributable to this program and the services being rendered hereunder. You acknowledge that prior authorizations are not a guaranty of verification of patient eligibility under the applicable carrier/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. The limitation of liability under this Section 13 shall survive termination of services under the program and termination of this Agreement.
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 access to our services. If you fail to acknowledge your acceptance of any such change then your access will expire immediately or at any time thereafter at our option. 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 access. 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. 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.