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TopDoc User Agreement

This Top Doc User Agreement (“Agreement”) contains the terms and conditions that apply to the use by you (“User” or “You”), and the Practices and Practice Members (defined below) that you represent, of the Services (as defined in Section 1.a) offered by Top Doc, Inc. (“Top Doc”), including but not limited to at https://topdoc.com/ and all affiliated websites and applications and any Software (as defined in Section 2.a) owned and operated by Top Doc (collectively, the “Top Doc Site”), as well as on its partners’ websites, digital platforms and applications (“Partner Sites”).

As used in this Agreement, “Practice” shall mean the entity on behalf of which User has engaged Top Doc to provide the Services, and shall include the totality of all of doctors, dentists, and other healthcare specialists, professionals or providers, and staff members (each a “Practice Member”) located in the same office or affiliate offices, provided such affiliates are part of a single affiliated covered entity (as such terms are defined within HIPAA) or an organized health care arrangement or “OHCA” (as such term is defined under HIPAA), for whom an account is created on the Top Doc Site by User or who otherwise use the Services and/or the Top Doc Site for the purpose set forth in this Agreement.

In those instances where the Practice does not have a separate corporate parent entering into this Agreement on the Practice’s behalf as User, references to User herein shall also be construed to mean Practice and references to Practice herein shall be construed to mean User.

This Agreement hereby incorporates by reference any User account page accessible by User through the Services (the “User Account Page”) or other order form entered into by the parties (the User Account Page and any other order forms entered into by the parties shall collectively be referred to as the “Order Form”) and any addenda entered into by the parties, as if the terms of such Order Form or addenda, as applicable, were stated herein.

BY CLICKING ON THE “ACCEPT” BUTTON OR DOWNLOADING, ACCESSING OR OTHERWISE USING THE SERVICES AND/OR THE TOP DOC SITE, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO ENTER INTO AND BIND USER AND PRACTICE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ACKNOWLEDGE AND AGREE THAT ALL SUCH USE BY USER IS SUBJECT TO SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS OR ARE NOT AUTHORIZED TO BIND USER AND PRACTICE, THEN DO NOT CLICK THE “ACCEPT” BUTTON AND USER AND PRACTICE ARE NOT LICENSED OR PERMITTED TO USE THE SERVICES AND/OR THE TOP DOC SITE. ALL OTHER USES OF THE SERVICES AND/OR THE TOP DOC SITE ARE STRICTLY PROHIBITED.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT IN SECTION 16.f, BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU, PRACTICE AND TOP DOC WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

1. TOP DOC SERVICES

  1. Services. Subject to the terms and conditions of this Agreement and payment of the fees set forth in Section 6 and any Order Form or addendum to this Agreement (if applicable), Top Doc will provide a variety of services via the Top Doc Site and Partner Sites (“Services”), which are described in further detail on the Top Doc Site, which may be updated from time to time, and which services related to marketing (collectively, the “Marketing Services”); services related to scheduling and patient intake (collectively, the “Scheduling Technology Services”); and services related to billing and collections (collectively, the “Payment Services”); and other services relating to patient services, such as transcription, care coordination, and the like. User acknowledges and agrees that, while the Services described herein are provided for the benefit of User, individual scheduling requests are facilitated through the Services on behalf of the applicable Customer or other entity creating such scheduling request.

  2. User Access. During the Term, and subject to the terms and conditions of this Agreement, Top Doc grants User the right to access and use the Services and/or the Top Doc Site and to permit its Practice Members, agents and subcontractors the right to access and use the Services and/or the Top Doc Site solely on User’s behalf; provided, however, that User shall be responsible for any use of the Services and/or the Top Doc Site by such Practice Members, agents and subcontractors. During the Term and subject to the terms and conditions of this Agreement, User grants Top Doc the right to access and use User’s practice management system, calendar system and patient database (“User’s Systems”), and to copy, extract and use all data necessary to provide the Services. User acknowledges and agrees that Top Doc shall not be subject to any terms not set forth herein with respect to User’s Systems, including, but not limited to, any click-through agreements Top Doc may be required to accept in connection with its use thereof. User will furnish to Top Doc such cooperation, technical assistance, resources, and support as reasonably necessary or appropriate for Top Doc to implement and perform the Services.

  3. User Information. User acknowledges and agrees that Top Doc shall, and shall authorize its partners to, make certain Practice information available to Top Doc’s end users, including but not limited to individuals who have consented to Top Doc’s terms of use (“Customers”), including, without limitation: (i) the address, phone number, fax and email of the Practice and Practice Members; (ii) information regarding Practice Member appointment availability and National Provider Identifier (“NPI”); (iii) insurance plans in which each Practice Member participates; (iv) general Practice information; and (v) trademarks, logos and such other domains, images and materials that User provides to Top Doc (“User Logos”) (collectively, “User Information”). Top Doc and its partners may use, modify, display, and reproduce User Information in connection with providing the Services and promoting Top Doc, including but not limited to including User Information in press releases, presentation materials and/or on a list of Top Doc clients.

  4. Accounts. Each Practice Member shall create and maintain throughout the Term accounts and passwords (“Accounts”) to use the Services and/or the Top Doc Site, including uploading, reviewing, and updating User Information via the Top Doc Site. Account information shall be held in strict confidence by User and Practice Members and User will be solely responsible for any disclosures of its Account information or use thereof by any unauthorized party. User shall immediately notify Top Doc: (i) following any unauthorized use, access or other compromise of an Account (including any password); and when a Practice Member is no longer employed or otherwise ceases to be part of any Practices of User. Top Doc reserves the right to disable any Account upon its belief that the security with respect to that Account has been or likely will be compromised.

  5. Reviews. Except for User Sourced Reviews (defined below), Top Doc solicits and owns the feedback it receives from Customers and other patients who use the Top Doc Site regarding the Practice and/or Practice Members (“Reviews”), and Top Doc may, in its sole discretion, make these Reviews available through posting on the Top Doc Site and/or Partner Sites. While Top Doc may from time to time and in its sole discretion remove Reviews, Top Doc shall have no obligation to (i) review Reviews for veracity, accuracy or content, or (ii) remove any Reviews. Top Doc shall have no liability to User with respect to, and User hereby releases Top Doc from, all claims related to, arising from or in connection with Reviews, including without limitation claims that a Review is defamatory, libelous, false, misleading, unfair, deceptive, and/or disparaging.

  6. User Sourced Reviews. If applicable, Top Doc may also display through the Services certain reviews of Practice Members submitted by Non-Top Doc Patients directly to User or an agent of User (“User Sourced Reviews”). The parties agree and acknowledge that User Sourced Reviews may not conform to the standard form of reviews Top Doc customarily obtains from Customers, and accordingly, the parties agree to work in good faith to conform User Sourced Reviews to Top Doc’s standard form for publication through the Services. User agrees and acknowledges that Top Doc may, in its sole discretion, not publish or remove from display through the Services any User Sourced Review to the extent it violates Top Doc’s then-current policies or is in violation of applicable laws.

  7. Customer Personal Information. Top Doc will maintain Customer consent for the use and disclosure of a Customer’s health care or medical history, and other personal information (“Customer Personal Information”) in connection with the Services, whether in paper or electronic form. Customer Personal Information includes, without limitation, information that Customers provide directly to Top Doc by (i) creating an account, (ii) searching for healthcare providers, (iii) completing medical history forms, (iv) posting Reviews of Practice Members, or (v) utilizing Embedded Modules. User acknowledges and agrees that Customer Personal Information is not PHI (as defined in Section 14.e).

  8. Content. Top Doc shall develop, compile, modify or otherwise maintain all content on the Top Doc Site or as part of the Services. User hereby grants Top Doc a fully-paid, transferable, irrevocable and perpetual right and license to: (i) make content from the Top Doc Site available on Partner Sites and through marketing initiatives; and (ii) use Practice Member’s name and/or NPI to obtain certain insurance information. User shall obtain any necessary permission or consent from each Practice and Practice Member as may be required to share the User Information with Top Doc.

2. SOFTWARE

  1. Acceptance. You may choose to review, download or otherwise utilize certain software applications or other code and functionality from the Top Doc Site or otherwise provided by Top Doc (“Software”). As a condition to using the Software, you must review and agree to the terms of this Section 2 and any other terms that may be presented to you when you receive such Software (collectively, the “Software Terms”).

  2. Definitions.

    • “Embedded Module” means html and other code and functionality provided by Top Doc that is displayed on a User Website and that allows End Users to access and view Top Doc Content on the User Website.
    • “End User” means a visitor to the User Website.
    • “Top Doc Content” means all data, information and content provided or otherwise made available by or on behalf of Top Doc through or in connection with the Services and the Top Doc Site.
    • “Top Doc Marks” means the Top Doc name and any trade name, trademark, service mark, or logo of Top Doc.
    • “User Website” means the User URL(s), domain(s) or other web properties through which an Embedded Module is accessed or hosted by User.

  3. Licenses.

    • Software. Subject to the terms and conditions of this Agreement and during the Term hereof, Top Doc hereby grants User a limited, non-exclusive, non-sublicensable, non-transferable and revocable right and license to use the Software for its internal business purposes and solely in connection with the relevant Services.
    • Embedded Modules. Subject to the terms and conditions of this Agreement and during the Term hereof, Top Doc hereby grants to User a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to embed the html and other code provided by Top Doc on the User Website in order to display the Embedded Modules.
    • Top Doc Marks. Subject to the terms and conditions of this Agreement, User may display Top Doc Marks on the User Website in connection with the presentation of the Embedded Module and Top Doc Content.

  4. User Website Terms. User hereby agrees that User will provide the Embedded Modules and Top Doc Content to End Users subject to the same terms and conditions that End Users are subject to with respect to User’s own products or services on the User Website (“End User Terms”).

  5. Proprietary Rights and Restrictions.

    • Feedback. User may choose to provide Top Doc with comments concerning the Services or the Top Doc Site. User hereby assigns to Top Doc all rights, title, and interest to the Feedback, for any and all commercial and non-commercial purposes.
    • Restrictions. Except as expressly authorized under this Agreement, User may not copy, rent, lease, sell, license, transfer, assign, sublicense, redistribute, disassemble, aggregate, index, reverse engineer or decompile, derive source code or algorithms from, modify or alter, interfere with, defeat, avoid, disrupt, bypass, remove, or disable any part of the Top Doc Site.
    • Ownership. All data generated by Top Doc in connection with the Services or provided by or on behalf of Top Doc to User shall be owned exclusively by Top Doc.

3. TELEMEDICINE ENABLING SERVICES

  1. Telemedicine Encounters. Subject to the terms and conditions of this Agreement, Top Doc may provide services that will enable Customers or other patients to access health care encounters with Practice Members via telemedicine technology (“Telemedicine Encounters”), which may be conducted through either (i) the Practice’s existing telemedicine capabilities, or (ii) an interactive, two-way audio visual communications system that Top Doc will facilitate through its Software.

  2. Telemedicine Marketing and Scheduling. Top Doc’s services with regard to Telemedicine Encounters shall be limited to Marketing and Scheduling Services, and under no circumstances shall Top Doc be deemed to be the provider of Telemedicine Encounters.

  3. Telemedicine Facilitation Software. Top Doc may, in its sole discretion, choose to provide Telemedicine Facilitation Services using its own telemedicine technology or by partnering with a third-party technology provider.

  4. Telemedicine Representations and Warranties. User represents, warrants, and covenants that:

    • Each Practice Member who engages in Telemedicine Encounters possesses all valid, unexpired, unrevoked and unrestricted licenses, authorizations, and certifications.
    • Telemedicine Encounters will be provided by Practice Members in a manner that complies with all applicable state and federal laws and regulations.
    • Practices shall obtain informed consent and any other legally required documentation from Customers or other patients prior to engaging in Telemedicine Encounters.
    • User shall be responsible for assessing insurance coverage and billing requirements that apply to Telemedicine Encounters.
    • User shall be responsible for establishing policies and procedures in the event that a Customer requires emergency health care services during a Telemedicine Encounter.

4. USER RESPONSIBILITIES

  1. User Information. User will cooperate with Top Doc or its agents to verify the information specified in Section 8.b, User Information, and any other information that Top Doc in its sole discretion deems necessary to confirm Practice Members’ professional qualifications. User will promptly update and notify Top Doc of any change in User Information.

  2. Acceptance of Customers. User’s acceptance of an appointment scheduling request from Top Doc for a Customer constitutes User’s acceptance of such Customer as a patient. User is fully and solely responsible for all care rendered to Customer, and for collecting payment from Customer for all services rendered.

  3. Incorrect User Information. User agrees that any Customer who makes an appointment with User based on out-of-date or incorrect User Information shall not be charged for any fees disputed or not otherwise covered by the Customer’s insurance provider as a result of User’s failure to provide accurate User Information.

  4. Scheduling Requests. User will respond to scheduling requests within a reasonable amount of time, but in no event more than twenty-four (24) hours after receipt of Top Doc’s request for an appointment.

  5. Confirmation of Personal Information. If a Customer submits Customer Personal Information on the Top Doc Site and authorizes User to have access to such information in advance of an appointment, at the Customer’s appointment User will provide Customer with a copy and give Customer an opportunity to review and accept or revise such Customer Personal Information.

  6. Contact. User agrees that Top Doc may contact any Practice Member regarding the Services, the Software, and/or the Top Doc Site.

5. NON-TOP DOC PATIENTS

User may elect to use certain Services for patients of the User who are not Customers (“Non-Top Doc Patients”), including without limitation, booking appointments for, or having appointment reminders sent to, Non-Top Doc Patients. User shall be responsible for obtaining any required consents, permissions or authorizations from Non-Top Doc Patients for the use and provision of such Services. Top Doc may send information to Non-Top Doc Patients.

6. FEES AND PAYMENTS

  1. Services Fees. In consideration of the Services provided hereunder, User shall pay Top Doc any initial set up or recurring fees specified on User’s account page on the Top Doc Site (“User Account Page”) or elsewhere in an applicable Order Form. All invoices provided by Top Doc hereunder are due immediately, and Top Doc may charge User’s credit card, bank account, or other form of payment, on a recurring basis. User agrees to these recurring charges.

  2. Other Fees. In addition to those fees set forth in Section 6.a, User shall pay Top Doc the fees set forth in any addendum or Order Form entered into by the parties.

  3. Amounts Past Due and Fee Changes. All amounts due and owing hereunder by User that are not paid by the due date shall bear interest at the rate of the lesser of one and one half percent (1.5%) per month or the maximum amount permissible by law. Top Doc reserves the right to change from time to time the amount or structure of the fees for any of the Services. Top Doc will use reasonable efforts to notify User of any such fee changes at least thirty (30) days prior to becoming effective.

  4. Participation; Services. Top Doc will not exclude as a participant in the Services any individual or entity who meets the qualifications for participation as set forth herein.

7. LIMITATION OF LIABILITY FOR USE

  1. Disclaimer. The parties acknowledge and agree that Top Doc is not responsible for: (i) the accuracy, reliability, timeliness, or completeness of User Information, PHI, Benefit Information, Customer Personal Information, or any other data provided through the Services; (ii) any results that may be obtained from the use of the Services and/or the Top Doc Site; (iii) the provision of User’s services as a result of User’s reliance on any Customer Personal Information; (iv) the canceling or rescheduling of any appointment booked through the Services; (v) use of the Software after the Term; or (vi) losses or injury arising from User’s failure to implement and maintain appropriate safeguards.

  2. Health Care. User acknowledges and agrees that Top Doc is not a health care provider, licensed or otherwise. Top Doc cannot and will not assume responsibility for the health care of any Customers or other patients, which shall at all times remain the responsibility of User, Practice(s) and Practice Members.

  3. Benefit Information. User may receive certain insurance-related information of Customers or other patients (“Benefit Information”) through the Services. User agrees and acknowledges that Top Doc cannot and has no responsibility to confirm the accuracy of the data it receives from clearing houses, insurance providers, or Customers. TOP DOC MAKES NO GUARANTEES AND DISCLAIMS ALL WARRANTIES THAT SUCH BENEFIT INFORMATION IS ACCURATE, TIMELY, COMPLETE OR ERROR-FREE.

8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF USER

  1. Confidentiality. User represents, warrants and covenants that it will maintain the confidentiality of Customer Personal Information and shall only use Customer Personal Information or the healthcare and personal information of other patients as permitted in this Agreement and consistent with state and federal laws.

  2. Practice Member Information. User represents, warrants and covenants that at all times during the Term: User will provide Top Doc with complete and accurate information about Practice Members’ specialties, practice or hospital affiliations, association memberships, board certifications, insurance participation, and contact information; each Practice Member possesses valid, unexpired, unrevoked and unrestricted licenses, authorizations and certifications for all jurisdictions in which he or she practices.

  3. Competition. User acknowledges, represents, warrants and covenants that it will not engage or participate in any act or omission involving the use of the Services to establish or enforce any agreement or coordination of prices, kinds, frequencies or amounts of products or services, or customer categories, or otherwise engage in price fixing, output restriction, or customer or market allocation.

  4. Discount Reporting. User acknowledges, represents, warrants and covenants that it shall disclose to each applicable payor, to the extent required by applicable law or contract, the net amount User paid for the applicable non-Payment Services hereunder.

  5. Ownership Rights. User represents, warrants and covenants that it has all necessary right, title and interest in and to the content submitted by User to Top Doc.

  6. User Sourced Reviews. User represents and warrants that it has obtained all rights, titles, interests, consents and authorizations necessary for Top Doc to publish User Sourced Reviews through the Services.

9. INDEMNIFICATION

User will defend, indemnify and hold harmless Top Doc and its affiliates, directors, officers, employees, consultants and agents from any and all claims, actions, proceedings, losses, damages, liabilities and expenses, including reasonable attorneys’ fees, arising from or related to: (i) any services or treatment provided by User or a Practice Member to a Customer; (ii) any fees, costs or expenses in connection with any services or treatment provided by User; (iii) use of the Services by, or provision of the Services to, Non-Top Doc Patients; (iv) gross negligence, willful or intentional misconduct, or fraud by User, a Practice, or a Practice Member; (v) any breach of Sections 2.e, 3.d, 4.e, 8 or 10.a.ii; (vi) User Sourced Reviews; or (vii) User Information.

10. OTHER REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF WARRANTIES

  1. Mutual Warranties. Each party represents and warrants to the other party that it is duly organized, validly existing, and in good standing; it has the full power to enter into this Agreement and to perform its obligations hereunder.

  2. No Other Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, THE SERVICES, SOFTWARE AND THE TOP DOC SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOP DOC HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

11. LIMITATION OF LIABILITY

  1. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL TOP DOC OR ITS PARTNERS, SUPPLIERS, VENDORS OR LICENSORS BE LIABLE TO USER, THE PRACTICE OR A PRACTICE MEMBER FOR ANY LOSS OF PROFITS, LOST REVENUE, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES; LOSS OF DATA; LOSS OR INTERRUPTION OF USE OF THE SERVICES; PROVISION OF SERVICES, HEALTH CARE OR OTHERWISE, TO CUSTOMERS OR OTHER PATIENTS; OR USER SOURCED REVIEWS.

  2. Limitation. IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF TOP DOC EXCEED THE GREATER OF: THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID BY USER TO TOP DOC HEREUNDER DURING THE PREVIOUS SIX (6)-MONTH PERIOD, OR ONE HUNDRED DOLLARS ($100).

12. INTELLECTUAL PROPERTY; TOP DOC MARKS; NON-DISPARAGEMENT

  1. Intellectual Property. All right, title and interest, including without limitation all intellectual property rights, in and to the Services, Software and the Top Doc Site, shall remain the valuable and exclusive property of Top Doc.

  2. Top Doc Marks. Any use of a Top Doc Mark by User that is not expressly permitted hereunder will be subject to the prior written consent of Top Doc.

  3. Non-Disparagement. User acknowledges and agrees that it shall not make any comparative references to Top Doc, its pricing, or the Services or Top Doc Site; or disparage or otherwise denigrate Top Doc or the Services or Top Doc Site.

13. ADVERTISEMENTS

  1. Ad Services. Top Doc may offer User the ability to place advertisements including certain User Information (an “Ad”), which shall be mutually agreed upon by the parties in a written insertion order (“IO”).

  2. Insertion Orders. From time to time, User and Top Doc may execute IOs that may specify the Ad Services to be rendered, the Ad Fee, the start and end dates of the Ad Services, and other Ad placement details.

  3. Billing; Payment for Ad Fees. Top Doc will invoice User for the Ad Fees as specified in the IO.

  4. Termination of IO; Rejection/Retraction of an Ad. Either party may terminate an IO at any time if the other party is in material breach of its obligations under the IO or this Agreement.

14. CONFIDENTIALITY / HIPAA COMPLIANCE

  1. Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party disclosed to the other party. Confidential Information includes, without limitation, the terms and conditions of this Agreement, business and marketing plans, technology and technical information, product designs, and business processes.

  2. Non-Disclosure. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.

  3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure.

  4. Injunctive Relief. If the Receiving Party discloses or uses any Confidential Information in breach of the confidentiality obligations, the Disclosing Party shall have the right to seek injunctive relief.

  5. HIPAA. In the event that Top Doc creates, receives, maintains, or transmits Protected Health Information (“PHI”) from or on behalf of User or the Practice in order to perform the Services (“Practice PHI”), the parties agree that Top Doc is serving as a “Business Associate” of the Practice. The terms of the Business Associate Agreement set forth in Exhibit A of this Agreement are incorporated herein by reference.

15. TERM; TERMINATION

  1. Term. This Agreement will commence as of the date of User’s acceptance of the terms and conditions herein and shall continue in effect until terminated pursuant to Section 15.b.

  2. Termination. If no Order Form is then in effect, then either party may terminate this Agreement immediately upon notice to the other party. Either party may terminate this Agreement or any Order Form for any or no reason by providing at least ninety (90) days’ prior written notice to the other party.

  3. Suspension; Removal. Top Doc may immediately suspend or terminate this Agreement, with regard to User and/or any Practice Member, in the event that Top Doc believes in its sole good faith determination that a Practice Member has engaged in inappropriate or unprofessional conduct.

  4. Survival. Sections 2.e.i, 2.e.ii, 6 – 7, 9 – 12, 14 – 16, and all other terms which by their nature are reasonably intended to survive shall survive expiration or termination of this Agreement.

16. MISCELLANEOUS

  1. Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except that Top Doc has the unrestricted right to assign this Agreement to an affiliate or in the event of a sale, merger or acquisition.

  2. No Inducement. Nothing contained in this Agreement, including any compensation paid or payable, is intended or shall be construed to require, influence, or otherwise induce or solicit a party for referrals.

  3. Non-Competition. User acknowledges and agrees that User shall not purchase, use, or perform any services for any third party that develops, promotes, sells, licenses, distributes, or provides services that would compete directly with the Services being marketed, sold, licensed, distributed, provided or otherwise made available by Top Doc.

  4. Notices. All notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given if sent: (i) to Top Doc by overnight guaranteed delivery service addressed to 232 Mott Street, Unit 2, New York, NY 10012, Attn: Legal with a copy delivered via email to [email protected]; or (ii) to User via email to the designated billing contact.

  5. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without reference to the conflict of laws provisions thereof.

  6. Arbitration Agreement. User and Top Doc acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, Top Doc’s officers, directors, employees and independent contractors are third-party beneficiaries of this Agreement. The parties shall use their best efforts to settle any dispute directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York, New York, in accordance with the JAMS Streamlined Arbitration Rules and Procedures. USER AND TOP DOC WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. User has the right to opt out of the provisions of this Section by sending written notice within thirty (30) days of first accepting this Agreement.

  7. Force Majeure. Except for a party’s payment obligations, the performance of either party under this Agreement may be suspended to the extent and for the period that such party is prevented or delayed from fulfilling its obligations due to causes beyond its reasonable control.

  8. Modifications. No modification, amendment or waiver of this Agreement or any of its provisions shall be binding upon Top Doc unless made in writing and agreed to by Top Doc. Top Doc may amend the terms and conditions of this Agreement by posting a notice on the User Account Page or otherwise reasonably notifying User at least thirty (30) days prior to such change taking effect.

  9. Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired.

  10. Entire Agreement. This Agreement, any exhibits or addenda hereto, the policies referred to herein, and any Order Form, constitute the entire agreement between the parties and supersede all previous or contemporaneous agreements.

  11. Headings. The headings of the sections of this Agreement are for convenience only.

  12. Independent Contractors. The relationship of the parties shall be that of independent contractors.

  13. Third Party Beneficiaries. This Agreement is entered into solely between, and made for the sole benefit of, Top Doc and User.

  14. Remedies Cumulative. Unless expressly stated, no remedy afforded to a party under this Agreement shall preclude other remedies available under equity or law.

EXHIBIT A — BUSINESS ASSOCIATE AGREEMENT

  1. Definitions. Terms used in this Exhibit A but not otherwise defined in this Exhibit A or the Agreement shall have the meaning ascribed to them by HIPAA. For purposes of this Exhibit A only, when Top Doc is deemed to be a Business Associate of Practice and/or User, as applicable, Top Doc shall be referred to as “Business Associate,” and Practice and/or User, as applicable, shall be referred to as “Covered Entity.” In the event of an inconsistency between this Exhibit A and another term of the Agreement as it relates to PHI, this Exhibit A shall control.

  2. Use and Disclosure. Business Associate agrees not to use or disclose Practice PHI other than as permitted or required by this Exhibit A, the Agreement or as Required By Law. Business Associate shall comply with the provisions of this Exhibit A relating to privacy and security of PHI that are applicable to Business Associates.

  3. Appropriate Safeguards. Business Associate agrees to use appropriate safeguards to prevent the use or disclosure of Practice PHI other than as provided for by this Exhibit A, the Agreement or as Required By Law. Without limiting the generality of the foregoing sentence, Business Associate will: - Implement administrative, organizational, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of Electronic Protected Health Information contained within Practice PHI as required by the Security Rule. - Report to Covered Entity any Security Incident involving Electronic Practice PHI or involving systems in which Electronic Practice PHI is stored, maintained, or over which it is transmitted, of which Business Associate becomes aware. Any actual, successful Security Incident will be reported to Covered Entity in writing without unreasonable delay. With respect to attempted, unsuccessful Security Incidents, the parties acknowledge that this Exhibit A constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required. - Notify Covered Entity following the discovery of a Breach of Unsecured PHI that is Practice PHI in accordance with 45 C.F.R. § 164.410 without unreasonable delay and in no event later than sixty (60) days after discovery of the Breach. The notice shall include contact information for impacted individuals, a brief description of the Breach circumstances and date, a description of the types of Unsecured PHI involved, and a brief description of what the Business Associate has done or is doing to investigate the Breach and mitigate harm. - Report, without unreasonable delay, to Covered Entity any access, use or disclosure of Practice PHI by Business Associate or a third party to which Business Associate disclosed Practice PHI which is not permitted by this Agreement and of which Business Associate becomes aware. - Comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations, to the extent that Business Associate carries out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164.

  4. Mitigation. Business Associate agrees to take reasonable steps to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Practice PHI by Business Associate in violation of the requirements of this Exhibit A. Business Associate agrees to reasonably cooperate and coordinate with Covered Entity in the investigation of any violation, Security Incident, or Breach, and in the preparation of any required reports or notices.

  5. Minimum Necessary. To the extent required by HIPAA’s “minimum necessary” requirements, Business Associate shall only request, use and disclose the minimum amount of Practice PHI necessary to accomplish the purpose of the request, use or disclosure.

  6. Subcontractors. Business Associate shall enter into a written agreement meeting the requirements of 45 C.F.R. §§ 164.504(e) and 164.314(a)(2) with each Subcontractor that creates, receives, maintains or transmits Practice PHI on behalf of Business Associate. Business Associate shall ensure that the written agreement with each Subcontractor obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as those that apply to Business Associate through this Exhibit A.

  7. Access to Designated Record Sets. The parties do not anticipate that Business Associate will maintain Designated Record Sets on behalf of Covered Entity. If Covered Entity requests and Business Associate agrees to maintain one, Business Associate agrees to provide access within thirty (30) days of a request, in the manner designated by the Covered Entity, in order to meet HIPAA Regulations. If an Individual makes a request for access directly to Business Associate, Business Associate shall notify Covered Entity of the request within three (3) business days.

  8. Amendments to Designated Record Sets. If Covered Entity requests and Business Associate agrees to maintain a Designated Record Set, Business Associate agrees to provide information for amendment and to incorporate any such amendment(s) within thirty (30) days of a request, in the manner designated by the Covered Entity.

  9. Access to Books and Records. Business Associate agrees to make its internal practices, books, and records relating to the use and disclosure of Covered Entity’s PHI available to the Secretary for purposes of determining compliance with the Privacy Rule.

  10. Accountings. Business Associate agrees to document disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures in accordance with HIPAA. Business Associate will, within thirty (30) days of request from Covered Entity, make available such information as is in Business Associate’s possession. If Business Associate receives a request for an accounting directly from an Individual, Business Associate shall forward such request to Covered Entity within ten (10) business days.

  11. Permitted Uses and Disclosures by Business Associate. - Services. Business Associate may use or disclose PHI to perform the Services, provided that such use or disclosure would not violate HIPAA if done by Covered Entity. - Use for Administration of Business Associate. Business Associate may use Covered Entity’s PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate. Covered Entity acknowledges and agrees that proper management and administration of Business Associate includes, without limitation, improvements, modifications, upgrades, and the development of additional products, features, and functionality. - Disclosure for Administration of Business Associate. Business Associate may disclose Practice PHI for the proper management and administration of the Business Associate, provided that disclosures are Required By Law or Business Associate obtains reasonable written assurances from the third party to whom the information is disclosed. - Data Aggregation. Business Associate may use Practice PHI to provide Data Aggregation services relating to the Health Care Operations of Covered Entity. - De-Identified Information. Business Associate may use Practice PHI to create de-identified health information in accordance with the HIPAA de-identification requirements. Business Associate shall own any de-identified health information it creates. - Authorization. Business Associate may present Customers or other patients with a valid HIPAA Authorization to obtain their authorizations for Business Associate to be able to use and disclose Practice PHI for the purposes set forth in the Authorization.

  12. Obligations of Covered Entity. - Permissible Requests by Covered Entity. Covered Entity shall not request Business Associate to use or disclose Covered Entity’s PHI in any manner that would not be permissible under the Privacy Rule if done by Covered Entity. - Minimum Necessary PHI. When Covered Entity discloses PHI to Business Associate, Covered Entity shall provide the minimum amount of PHI necessary. - Permissions; Restrictions. Covered Entity warrants that it has obtained and will obtain any consents, authorizations and/or other legal permissions required for the disclosure of PHI to Business Associate. - Notice of Privacy Practices. Covered Entity shall not include any limitation in its notice of privacy practices that limits Business Associate’s use or disclosure of Covered Entity’s PHI under this Exhibit A or the Agreement.

  13. Compliance with HIPAA Transaction Standards. When providing Services, and to the extent applicable, Business Associate shall comply with all applicable HIPAA standards and requirements with respect to the transmission of health information in electronic form for any transaction for which the Secretary has adopted a standard under HIPAA.

  14. Termination Upon Breach. Either party, upon knowledge of a material breach of this Exhibit A relating to Practice PHI by the other party, shall provide an opportunity for the Breaching Party to cure the breach. If Breaching Party does not cure the breach within thirty (30) days, the Non-Breaching Party may terminate this Exhibit A or the relevant provisions of the Agreement.

  15. Effect of Termination. - Return of PHI. Upon termination of this Exhibit A or the Agreement, for any reason, Business Associate, in its sole discretion, shall return or destroy, without unreasonable delay, all Practice PHI received from Covered Entity or created or received by Business Associate on behalf of Covered Entity. - Infeasibility. If Business Associate determines in its sole reasonable discretion that returning or destroying the Practice PHI is infeasible, Business Associate shall extend the protections of this Exhibit A to such PHI and limit further uses and disclosures of Practice PHI for so long as Business Associate maintains Practice PHI. The parties acknowledge that it is infeasible for Business Associate to delete Practice PHI from backup tapes or other backup systems and that temporarily retaining certain Practice PHI may be necessary for an ongoing Security Incident or Breach investigation.

DOSESPOT AGREEMENT

This is a legal agreement between you and PRN Software, Inc. dba DoseSpot (“DoseSpot”). Before submitting any data or information to DoseSpot as part of the ePrescribing service enrollment process, you must carefully read and agree to the terms and conditions contained in this ePrescribing Authorization. By signing below, you represent that you are acting on behalf of yourself, as an individual, and your employer (collectively, “You”), and that you agree to be bound by this Agreement.

  1. Representations and Warranties; Data Submission, Collection and Use. You represent and warrant that (a) all of the information and data submitted to DoseSpot as part of the ePrescribing enrollment process (collectively, the “Data”) is accurate, complete, and timely; and (b) You have the authority to submit all such Data. You acknowledge and agree that DoseSpot has the right to take all steps necessary to confirm Your identity and otherwise verify such Data, including the right to submit Data to third parties for verification purposes; otherwise use such Data in the course of the ePrescribing enrollment process or the ePrescribing service for any legal purpose (including sharing such Data with third parties); and use such Data to contact you regarding the ePrescribing enrollment process, the ePrescribing service, or any other product or service that we believe might be of interest to You.

  2. Indemnification. You agree to defend, indemnify, and hold DoseSpot, its officers, directors, employees, agents, licensors, and suppliers harmless from and against any claims, actions or demands, liabilities and settlements including reasonable legal and accounting fees, resulting from or alleged to result from, the provision, receipt or use of any Data submitted to DoseSpot hereunder. DoseSpot reserves the right, in its sole discretion, to determine eligibility for the ePrescribing service. You understand that entering into this Agreement or submitting Data hereunder is no guarantee that You will be approved for participation in the ePrescribing service.

  3. No Warranties; Disclaimer. DoseSpot, on its own behalf and on behalf of its licensors, contractors, suppliers and any other parties who may be associated with the ePrescribing service, to the maximum extent permitted by law, disclaims all warranties, express or implied. In no event shall DoseSpot, its licensors, suppliers or any third parties be liable for any indirect, consequential, special, punitive or incidental damages (including damages for personal injury, sickness, death, business interruption, or loss of business information) or damages for loss of profits or revenues that may result from or in connection with the submission, receipt or use of Data hereunder. DoseSpot shall be liable only to the extent of actual damages incurred by You, not to exceed one hundred dollars ($100).

  4. General. You expressly agree and consent to the DoseSpot Terms of Service, which is expressly incorporated herein, available for review at https://www.dosespot.com/dosespot-legal-documentation and may be revised by DoseSpot from time to time. You further expressly agree that exclusive jurisdiction for any dispute with DoseSpot resides in the courts of the State of Massachusetts. This Agreement is governed by the internal substantive laws of the State of Massachusetts.

  5. Term. This Agreement shall be effective for an initial term from and after the Effective Date (the date you begin using any services or technology provided to you by DoseSpot) and continue while you continue to use any services or technology provided to you by DoseSpot.

  6. Termination. DoseSpot may terminate this agreement for any reason upon thirty (30) days prior written notice.