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Terms And Conditions

There are different Terms and Conditions for the Doctations software (doctors/providers) and iMedicalHome software (patients). Please click the appropirate button below to view Terms and Conditions.


Doctors/Providers

Patients

Subscription Agreement

© 2007 Doctations, Inc.  All rights reserved.

Last Modified June 14, 2007

 

This Subscription Agreement (including any documents executed or accepted in connection therewith, the “Agreement”) is entered into by and between the person executing or electronically indicating the acceptance of the Agreement (the “Subscriber” or “you”) and Doctations, Inc., a Delaware corporation (“Doctations” or “we”). The Agreement governs the Subscriber’s subscription to, enrollment in, and usage of the Service (as defined herein). Doctations and you may sometimes each be referred to in the Agreement as a “Party”, and collectively as the “Parties”.

 

1. Introduction

The Site is owned and operated by Doctations, and constitutes part of a unique web-based communications, research and document management system, developed by Doctations, connecting medical professionals with their patients, colleagues and other Service Providers (the “Doctations System”). Doctations provides the Site and the Service (as defined herein) to you subject to the terms of the Agreement. By using the Site, you agree to be bound by the Agreement. The “Last Modified” date at the top of the Agreement will indicate when the latest changes were made.  By continuing to access and use the Site after the Agreement has been modified, you are agreeing to such modifications.  In addition, when using particular services or features or making purchases on the Site, you shall be subject to any posted guidelines or rules applicable to such services, features or purchases that may be posted from time to time.  All such guidelines or rules are hereby incorporated by reference into the Agreement.

 

2. Information You Provide

A.        You will be required to provide certain information in order to use the Service or to take advantage of certain other features of the Service. Whether you provide information online, by phone or by any other means, you agree to (a) provide true, accurate, current and complete information about yourself, and (b) as permitted, maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information to Doctations (or any such other party participating in the Service) that is false, inaccurate, outdated or incomplete, or Doctations has reasonable grounds to suspect that such information is false, inaccurate, outdated or incomplete, Doctations has the right to suspend or terminate any Doctations account you may have and prohibit any and all current or future use of the Service by you, in addition to any other legal remedies that Doctations may have against you.

B.        Any information you provide to Doctations is subject to our Privacy Policy. For more information, see our Privacy Policy for Patients. Our Privacy Policy is hereby incorporated into the Agreement by reference.

C.        Initial information you provide to Doctations in order to inquire about the Service does not constitute, and shall not be deemed, an application to subscribe to the Service or receive any components of the Service, and may not include all information required by Doctations to register you for the Service, or for any component thereof.

 

3. The Service

3.1            Description of Service

The Site provides a variety of communications tools, information, forums, resources and other services related to medical services and consultation. Patient Subscribers will have the ability to subscribe to one of five (5) membership Tiers. Each Tier allows access to certain components of the Service, and four (4) Tiers require payment of an annual subscription fee, as discussed in Section 3.8 hereof. Subscribers to certain Tiers will be able to purchase one or more additional services (“Additional Purchased Services”). Each component of the Service, as described above, shall be subject to such fees, including such yearly tiered subscriptions, as are delineated in the Pricing section of the Site and in the Agreement. Unless explicitly stated otherwise, any new features that augment or enhance the Service in the future shall be considered part of the Service and subject to the Agreement.

3.2            Availability

Subject to all terms hereof, you may use the Service seven (7) days a week, twenty-four (24) hours a day, except for any scheduled or unscheduled interruptions in the Service for maintenance, security or any other reason, as further described below.  We may, from time to time, perform maintenance upon the Service or experience hardware, software or other problems related to the Service, resulting in interrupted service, delays or errors in the Service.  We will attempt to provide prior notice of such interruptions, delays or errors but cannot guarantee that such notice will be provided.  We will not be liable for any such interruptions, delays or errors or any loss arising therefrom. 

3.3            Enrollment and Approval

In order to participate in the Service, Doctations will require you to complete and submit an account registration form, (“your Registration”).  Your submission of your Registration to Doctations does not constitute a binding agreement by Doctations to provide you with access to the Service.  Doctations may deny any person or entity the right to participate in the Service for any reason, in Doctations’ sole discretion.  Any approval granted by Doctations hereunder shall not release you from any obligations or liability hereunder and may be revoked by Doctations at any time.

3.4       Patient Information

A.            Doctor Subscriber’s Access to Patient’s Digital Medical Records

            1.            Upon a Doctor Subscriber’s request and a Patient Subscriber’s consent thereto, the Doctor shall gain access on this Site to digital medical records relating to such Patient Subscriber or any of such Patient Subscriber’s natural or adopted children under the age of eighteen (18) or whatever legal age is determined by the State of residence. These digital medical records may be supplied to Doctor Subscribers in any computer-based, legible and accessible format, including but not limited to, PDF, MS Word and ASCII, as deemed appropriate by the Doctor Subscriber and Doctations.

            2.            No Doctor Subscriber shall have access to a Patient Subscriber’s digital medical records unless a Doctor Subscriber requests, and the Patient Subscriber consents to, such access through this Site or otherwise, except where a Patient Subscriber’s mental or physical incapacitation necessitates such digital medical records access in order to administrate lifesaving medical care.

B.            Safeguarding of Patient’s Digital Medical Records.

Doctations will exercise commercially reasonable efforts to store, ensure the privacy of, back-up, encrypt and otherwise safeguard Patient’s digital medical records. Doctations’ employees, agents or third-party service providers will not have access to Patient’s digital medical records unless specifically granted access by Doctations in order to perform certain system-specific maintenance tasks. Notwithstanding the foregoing, Doctations may disclose Patient’s digital medical records if required to do so by law, or if Doctations, in good faith, believes that such disclosure is necessary to (i) comply with law or any requirements of Doctations pursuant to any lawsuit, order, decree or service of process, (ii) protect or defend the rights or property of Doctations, Providers or other Subscribers, or (iii) protect the personal safety of Subscribers or the general public.

C.            Emergency Disclosure.

Doctations, through the Site, will provide Doctor Subscribers with emergency access to Patient’s digital medical records of all of their Patient Subscribers subscribing to Basic+ Tier or greater, once such Patient Subscriber’s identity and the Doctor Subscriber’s identity has been confirmed through a telephone callback or similarly reliable means of verification.

3.5            Support; Queries

Doctations shall exercise commercially reasonable efforts to respond to Subscriber’s queries or requests for support with respect to the Service within twenty four (24) hours.

3.6            Disclaimers Regarding Other Providers

Doctations may attempt to verify that physicians, as well as specialists, medical imaging centers, therapy institutes, hospitals and other care facilities (collectively, “Providers”) participating in the Service, and any Providers listed on the Site whom you may choose to consult in connection with the Research Services, are reputable individuals, businesses or institutions that are legally permitted and otherwise qualified to provide the components of the Service that you are interested in receiving.  However, if we do attempt to perform any such verification, we will be relying primarily on information provided to us by such Providers.  Thus, we cannot guarantee, and we hereby disclaim any express or implied representation or warranty, that such Providers (i) are in good standing with applicable medical or health and human services boards or similar authorities, any business bureau or similar organization, or legally existing and doing business, in any local, state, federal or other jurisdiction, (ii) are not the subject of patient or other complaints, any regulatory or other governmental inquiry or investigation, or any litigation or other proceeding, (iii) are licensed, authorized or otherwise qualified to provide the products, services or medical treatments that they purport to provide, or (iv) are able to or will achieve the diagnostic or curative results they promise or anticipate, whether in good faith or otherwise.

3.7            Limited Role of Doctations

Doctations is not a medical provider or provider of any services other than the Service.  Doctations does not endorse or recommend the products or services of any particular Provider or evaluate or determine any Patient Subscriber’s need for any particular product, service or medical treatment.  Doctations is not an agent of either you or any Provider. Doctations’ services are administrative and informational only.  By providing the Service, Doctations is neither soliciting nor providing assistance to Patient Subscribers for any particular product, service or medical treatment. Nothing contained herein shall constitute an offer or promise for the provision to a Patient Subscriber of a treatment or course of treatments, diagnosis, cure, therapy or any other product or service.  We do not give medical, therapeutic or other medical-related advice or advocate any particular treatment or course of treatments, diagnosis, cure, therapy or other related product or service. 

3.8            Compensation and Payment

A.        Your Account.  Unless otherwise mutually agreed upon by the Parties, on the day you (i) obtain a username to utilize the Service and (ii) select a Tier which requires a subscription fee (the “Start Date”), you will designate a credit card account from which all amounts owed by you to Doctations hereunder shall be paid (your “Account”).  As soon as practicable after the Start Date, Doctations shall charge your Account for the annual fee, if any, associated with such Tier subject to Section 3.8(C) hereto.  Approximately thirty (30) days prior to each anniversary of the Start Date, you will receive a notice giving you the option to re-subscribe to your Tier or to choose a different Tier. Alternatively, you will have the option of having your subscription to a Tier renew automatically, in which case your Account will be charged on or about each anniversary of the Start Date.

B.            Interest; Late Fees.  If you fail to pay any amounts due to Doctations hereunder on the date such amounts are due, you will be liable to Doctations for an interest rate of the lesser of eighteen percent (18%) per annum or the then-current highest legal rate on all amounts owed, from the date of indebtedness until paid.  Doctations also reserves the right to charge you for all costs of collection, including collection agency and attorneys’ fees and court costs.      

C.            Credit Card. 

            1.            You hereby authorize Doctations to verify your credit card or other Account information and you agree to provide such further financial information and documentation as Doctations may request from time to time as a condition for your participation in the Service.

            2.            If you wish to purchase Tiers or any Additional Purchased Services online, you must provide valid credit card information on the Site’s order form.  By submitting such credit card information, you give us permission to charge your purchases to the card that you designate on the order form. 

D.        No Refund.  All fees for services or membership tiers paid to Doctations are binding and non-refundable, and you hereby agree to pay such amounts to Doctations.

E.         Taxes.  You shall pay any and all applicable federal, state and local sales, use, value added, excise and other taxes or duties of any nature assessed upon or with respect

to your use of the Service.

 

4. Your Representations and Warranties 

You represent, warrant and agree that:

A.        You have the full right and power to enter into this Agreement and to perform all of your obligations hereunder, and your performance of such obligations and grant of such rights does not and will not conflict with any obligation you may have to any other person or entity. 

B.        The information that you provide on your Application, and any other information that you provide to Doctations is, and will remain during the term hereof, true, complete, current and correct in all respects, and you will promptly notify Doctations in writing of any updates or other changes to such information.

 

5. Disclaimers

A.        THE SERVICE IS PROVIDED “AS IS”.  EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, DOCTATIONS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE) ABOUT THE SERVICE (OR ANY ELEMENT THEREOF), YOUR USE OF THE SERVICE AND ANY RESULTS THAT YOU MAY OBTAIN THEREFROM, OR THAT THE WEB SITE OR ANY OTHER ELEMENT OF THE SERVICE WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE.  THIS AGREEMENT IS NOT FOR A SALE OF GOODS.

 

6. Limitation of Liability

A. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE TERMS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT NONE OF THE DOCTATIONS PARTIES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE DOCTATIONS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE TREATMENTS, GOODS AND SERVICES RESULTING FROM ANY TREATMENTS, GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO, ALTERATION OF, OR LOSS OR DELETION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (v) WRONGFUL, INCOMPLETE OR FAULTY TRANSCRIPTION BY MEDICAL TRANSCRIPTIONISTS; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE. THIS LIMITATION OF LIABILITY SHALL BE EFFECTIVE NOTWITHSTANDING THAT YOUR AVAILABLE REMEDIES MAY FAIL OF THEIR ESSENTIAL PURPOSE.  YOU ACKNOWLEDGE AND AGREE THAT DOCTATIONS HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF WARRANTY AND LIABILITY CONTAINED IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN DOCTATIONS AND YOU.

B.        YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT MEDICAL TRANSCRIPTIONISTS ARE INDEPENDENT CONTRACTORS OF DOCTATIONS, AND ARE NOT EMPLOYEES, AGENTS, PARTNERS OR OTHERWISE AFFILIATED WITH DOCTATIONS. NONE OF THE DOCTATIONS PARTIES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES RESULTING FROM ANY DEALINGS WITH MEDICAL TRANSCRIPTIONISTS, INCLUDING WITHOUT LIMITATION, INCOMPLETE OR FAULTY TRANSCRIPTION AND LOSS OF TRANSCRIBED OR TO-BE-TRANSCRIBED DATA OR RECORDS.

 

7. Term and Termination

This Agreement will commence on the date on which Doctations notifies you that you have been accepted for participation in the Service and will end when terminated by either Party for any reason, with or without cause, by giving the other Party notice of termination in accordance with the terms hereof.  Upon any termination of this Agreement, you shall be responsible for any outstanding amounts owed by you to Doctations hereunder as of the date of such termination, and you authorize Doctations to charge your Account for all such amounts or otherwise invoice you for such amounts immediately following such termination. 

 

8. Indemnification 

You agree to indemnify, defend and hold Doctations and its parent, subsidiary and affiliated companies, and its and their respective officers, directors, employees and agents, harmless from and against any and all third party claims, damages, actions, proceedings, settlements and expenses arising out of or in connection with use of the Service.

 

9. Ownership

You acknowledge and agree that, Doctations owns all right, title and interest in and to the Site and all Patient digital medical records collected by Doctations in connection with the Service, and all other elements of the Service (including the copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent in the Service, and any proprietary rights in the know-how, methodologies, source code, object code, concepts, processes and general knowledge and techniques developed or used by Doctations in connection with the Service), and you shall not make any claims of ownership therein or thereto. 

 

10.  Links

Links on the Site to third-party websites are provided only as a convenience to you.  If you use these links, you will leave the Service.  Doctations does not control or endorse any such advertiser or other third-party websites, and your dealings with such third parties are solely between you and such third parties.  You agree that neither Doctations nor any Doctations Parties (as defined herein) will be responsible or liable for any loss or damage of any sort incurred as the result of any such Dealings or as the result of the presence of such advertiser or other third party links on the Service, for any content, goods or services provided on or through these outside websites or for your use or inability to use such websites.  You will use these links at your own risk.

 

11. Confidential Information

A.        Each Party agrees to treat all information and materials received from the other Party or such other Party’s affiliates, directors, employees, consultants, subcontractors or agents, as confidential and proprietary to, and trade secrets of, such other Party (such confidential and proprietary information and materials are hereinafter individually and collectively referred to as “Confidential Information”).  Each Party further agrees to hold all Confidential Information of the other Party in strict confidence, not to disclose it to any person or entity other than its employees, consultants, agents or other service providers on a need-to-know basis only, and not to use it in any way for its own or any third party’s benefit, without the prior written consent of the other Party.

B.            Notwithstanding the foregoing, “Confidential Information” shall not include information of a Party which (i) is in the public domain at the time of disclosure through no fault of the disclosing Party, (ii) becomes rightfully known to the disclosing Party from a third-party source under no obligation to maintain confidentiality, (iii) becomes publicly available through no fault of or failure to act by the disclosing Party in breach of this Agreement, or (iv) was already known by the disclosing Party prior to the Parties having access to one another. In addition, the provisions of Section 11(A) above shall not apply with respect to any Confidential Information that is required by court order or by governmental authority to be disclosed, provided that the disclosing Party uses reasonable efforts to make such disclosure subject to a protective order or confidentiality agreement.

 

12. Compliance Verification 

In order to verify your compliance with this Agreement, Doctations shall have the right to conduct reviews of your performance hereunder (“Compliance Verification”) if Doctations reasonably believes that you may be engaged in any activities that do not comply with this Agreement or may not be authorized by Doctations (such as disclosing Doctations’s Confidential Information or brokering or reselling any Patient digital medical records derived therefrom).  Doctations shall give you reasonable advance notice of any Compliance Verification request, and you shall cooperate with Doctations and shall provide Doctations or its designee with any relevant data and/or documents, as reasonably requested by Doctations in connection with its Compliance Verification.  If a Compliance Verification leads Doctations to conclude (in its sole discretion) that you have breached the provisions of this Agreement, or that any of your business practices related to your use of the Service are otherwise unsatisfactory, then you shall use your best efforts to promptly change such business practices to the reasonable satisfaction of Doctations.  Alternatively, at its option, Doctations may terminate this Agreement upon notice to you, in addition to pursuing any other remedies available to Doctations.

 

13. Termination

Doctations reserves the right, without notice and at its sole discretion, to suspend or terminate the Agreement and/or your ability to access or use the Service (or any part thereof), and to block or prevent future access to and use of the Service for any reason, including your breach of the Agreement or other conduct by you that Doctations considers inappropriate. Doctations reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.  Except as otherwise expressly stated in the Agreement, you agree that neither Doctations nor any of its affiliated companies shall be liable to you or to any third party for any modification, suspension or discontinuation of the Service.

 

14. Miscellaneous

A.        Service Providers. You acknowledge and agree that Doctations shall have the right to engage third-party vendors, subcontractors or other service providers to perform any part of the Service hereunder.  It is understood and agreed, however, that Doctations shall not be responsible for any failure of any such service provider to fulfill its obligations in the absence of any negligence on Doctations’s part.

B.        Non-Exclusivity.  You and Doctations agree that the relationship between you and Doctations will be non-exclusive and either Party may enter into any business relationships with third parties, whether or not competitive with this one. 

C.        Force Majeure.  Doctations shall not be liable for any non-performance, delays, interruptions or loss resulting from causes out of its reasonable control, including electronic or mechanical equipment malfunction, telephone problems, Internet problems, software problems, storms or other acts of God, fires, acts of government, terrorist acts, labor strikes, labor or materials shortage, hackers or acts or omissions of suppliers.

D.            Assignment.  This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective, successors and permitted assignees.  You may not assign this Agreement or any of your rights and obligations hereunder without the prior written consent of Doctations.

E.            Governing Law and Jurisdiction.  This Agreement, the rights and obligations of the Parties, and any claims or disputes thereto, shall be governed by and construed in accordance with the laws of the State of New York without reference to conflict of laws principles.  Doctations makes no representation that the Service or any part thereof is appropriate or available for use by any other party in jurisdictions outside the United States, or that this Agreement and the Service comply with the laws of any other country.  Subscribers who use the Service and are located outside the United States do so on their own initiative and at their sole risk and are responsible for compliance with local laws (in addition to all applicable United States laws), if and to the extent local laws are applicable. 

F.            Dispute Resolution. In the event of any dispute or controversy arising out of or relating to this Agreement or the breach hereof, the Parties shall use reasonable efforts to settle such dispute or controversy amicably in good faith negotiations, in order to reach a just and equitable solution satisfactory to both Parties. If, despite such efforts, the Parties fail to reach an amicable agreement within fifteen (15) days, the Parties shall submit the dispute or controversy to a binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall take place before a sole neutral arbitrator in the New York City metropolitan area, at a place and time mutually agreed upon by the Parties or, failing mutual agreement, selected by the arbitrator. The arbitrator shall have experience in the nature and subject matter of the dispute being arbitrated.  Each Party shall bear its own costs and expenses of arbitration, but the arbitrator may award attorneys’ fees and costs to the prevailing Party. Judgment may be entered on any award rendered by the arbitrator in any court having jurisdiction thereof.

G.            Integration.  This Agreement contains the complete agreement between the Parties with respect to the subject matter hereof and supersedes all prior proposals, negotiations, agreements and other representations or communications, whether oral or written between the Parties with respect thereto.

H.            Amendment.  ANY PROVISION OF THIS AGREEMENT, AND ANY ELEMENT OF THE SERVICE, MAY BE AMENDED OR MODIFIED BY DOCTATIONS AT ANY TIME, IN ITS SOLE DISCRETION. AMENDMENTS OR MODIFICATIONS MAY INCLUDE CHANGES IN BINDING TERMS AND PAYMENT PROCEDURES AND CHANGES TO THE WEB SITE.  DOCTATIONS WILL NOTIFY YOU OF ANY MATERIAL AMENDMENTS OR MODIFICATIONS IN ACCORDANCE WITH SECTION 14(M) HEREOF.  YOUR CONTINUED USE OF THE SERVICE AFTER NOTIFICATION OF SUCH CHANGES SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES.

I.            Waiver.  No term or condition of this Agreement shall be deemed waived, and no breach or omission excused, unless in writing and signed by the Party against whom enforcement of such waiver or consent is sought, regardless of any failure or delay by any Party in exercising any right, power or privilege hereunder.  A waiver of any condition or term of this Agreement, or right or remedy hereunder, shall not constitute a waiver thereof in the future.

J.            Independent Contractor.  The Parties to this Agreement shall be deemed independent contractors. In providing the Service, Doctations is not acting as your agent or representative, and nothing contained herein shall be construed as making either Party the agent of the other Party, as granting to either Party the right to enter into any contract on behalf of any other Party, or as establishing a partnership, joint venture or similar relationship between the Parties.

K.            Survival.  Any provision of this Agreement necessary to interpret or enforce the respective rights and obligations of the Parties hereunder, including but not limited to Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 shall survive the expiration or termination of this Agreement.

L.            Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.

M.       Notice.  Except as otherwise expressly provided herein, all notices under this Agreement shall be provided as set forth below.  Either Party may change its address for the purpose of receiving notices under this Agreement by giving notice to the other Party in the manner specified in this Section.

Notices to Doctations from you shall be in writing, and shall be delivered in person, by facsimile or by overnight courier. The address and facsimile number for Doctations is Doctations, Inc.600 Old Country Road, Suite 541, Garden City, NY 11530, Attn: President and CEO, facsimile 516-240-6165. Notices may also be sent by first-class United States mail, if properly addressed, postage prepaid, and registered or certified (return receipt requested). Notices shall be considered as delivered upon written confirmation of receipt or three days after mailing in the required manner.

Notices to you from Doctations shall be made in one or more of the following ways: (a) by written notice as provided above to your address, or facsimile number as specified in your Application; (b) by an e-mail to the e-mail address set forth in your Application; or (c) through a posting of the notice on the Site.

N.            Headings; Terms.  All headings used herein are for convenience of reference only and do not in any way define or interpret the intent of the Parties or modify or otherwise affect any of the provisions hereof, and shall not have any affect on the construction or interpretation of this Agreement.  All uses of “include” or “including” herein shall be understood to mean “include, or including, without limitation”.

Subscription Agreement   

© 2007 Doctations, Inc.  All rights reserved.

Last Modified June 14, 2007

 

This Subscription Agreement (including any documents executed or accepted in connection therewith, the “Agreement”) is entered into by and between the person executing or electronically indicating the acceptance of the Agreement (the “Subscriber” or “you”) and Doctations, Inc., a Delaware corporation (“Doctations” or “we”). The Agreement governs the Doctor Subscriber’s subscription of, enrollment in, and usage of the Service (as defined herein). Doctations and you may sometimes each be referred to in the Agreement as a “Party”, and collectively as the “Parties”.

1. Introduction

The Site is owned and operated by Doctations, and constitutes part of a unique web-based communications, research and document management system, developed by Doctations, connecting medical professionals with their patients, colleagues and other Service Providers (the “Doctations System”). Doctations provides the Site and the Service (as defined herein) to you subject to the terms of the Agreement. By using the Site, you agree to be bound by the Agreement. The “Last Modified” date at the top of the Agreement will indicate when the latest changes were made.  By continuing to access and use the Site after the Agreement has been modified, you are agreeing to such modifications.  In addition, when using particular services or features or making purchases on the Site, you shall be subject to any posted guidelines or rules applicable to such services, features or purchases that may be posted from time to time.  All such guidelines or rules are hereby incorporated by reference into the Agreement.

2. Information You Provide

A.        You will be required to provide certain information in order to use the Service or to take advantage of certain other features of the Service. Whether you provide information online, by phone or by any other means, you agree to (a) provide true, accurate, current and complete information about yourself, and (b) as permitted, maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information to Doctations (or any such other party participating in the Service) that is false, inaccurate, outdated or incomplete, or Doctations has reasonable grounds to suspect that such information is false, inaccurate, outdated or incomplete, Doctations has the right to suspend or terminate any Doctations account you may have and prohibit any and all current or future use of the Service (or any portion thereof) by you, in addition to any other legal remedies that Doctations may have against you.

B.        Any information you provide to Doctations is subject to our Privacy Policy. For more information, see our Privacy Policy for Providers. Our Privacy Policy is hereby incorporated into the Agreement by reference.

C.        Initial information you provide to Doctations in order to inquire about the Service does not constitute, and shall not be deemed, an application to subscribe to the Service or receive any components of the Service, and may not include all information required by Doctations to register you for the Service, or for any component thereof.

3. The Service

3.1            Description of Service

A.        The Site provides a variety of communications tools, information, forums, resources and other services related to medical services and consultation. Doctor Subscribers will have the ability to subscribe to one (1) of four (4) membership tiers. Each Tier allows access to certain components of the Service, and three (3) Tiers require payment of an annual or monthly fee, as discussed in Section 3.8 hereof. Subscribers to certain Tiers will be able to purchase one or more additional services (“Additional Purchased Services”). Doctors who submit an Application and consequently obtain a username to the Site (each a “Subscriber” and collectively “Subscribers”), depending on a Subscriber’s Tier and such Subscriber’s Additional Purchased Services, will have the ability to (i) send video, audio and text messages to patients (“Messaging Services”), (ii) dictate digital medical records into the Site’s computer system via microphone, enter digital medical records manually, or enter digital medical records via any combination of the foregoing, for storage as a sound file or for transmission to an independently contracted medical transcriptionist for transcription processing (“Transcription Services”), (iii) store, download, archive and transmit digital medical records (“Management Services”), (iv) receive alerts from the Doctations System if, upon a Patient Subscriber’s entry of digitally readable test results into the Doctation System, the Doctations System triggers an alert (“Alert Services”), (v) enter certain digital medical records into a component of the Doctations System that can in certain instances track, and consequently alert you to, ameliorations or deteriorations of certain of your patients’ quantifiable health factors and parameters (“Tracking Services”), (vi) transmit, inquire about the payment status of, organize and process patients’ bills and payments (“Billing Services”), (vii) research medical topics through databases, seminar video-archives and references guides (“Research Services”), and (viii) communicate with patients’ other Providers with respect to diagnostic, imaging or curative issues (“Inter-Provider Services”). Messaging Services, Transcription Services, Management Services, Alert Services, Tracking Services, Billing Services, Inter-Provider Services, the Site, any software used to operate the Site, and the content, services, features, subscriptions, products, merchandise and information that Doctations offers to Doctor Subscribers on the Site may be referred to herein collectively as the “Service”. Each component of the Service, as described above, shall be subject to such fees, including such yearly or monthly tiered subscriptions, as are delineated in the Pricing section of the Site and in the Agreement. Unless explicitly stated otherwise, any new features that augment or enhance the Service in the future shall be considered part of the Service and subject to the Agreement.

3.2            Availability

Subject to all terms hereof, you may use the Service seven (7) days a week, twenty-four (24) hours a day, except for any scheduled or unscheduled interruptions in the Service for maintenance, security or any other reason, as further described below.  We may, from time to time, perform maintenance upon the Service or experience hardware, software or other problems related to the Service, resulting in interrupted service, delays or errors in the Service.  We will attempt to provide prior notice of such interruptions, delays or errors but cannot guarantee that such notice will be provided.  We will not be liable for any such interruptions, delays or errors or any loss arising therefrom.  

3.3            Enrollment and Approval

In order to participate in the Service, Doctations will require you to complete and submit an account registration form, a certification form and/or any other information that Doctations deems necessary (collectively, your “Registration”).  Your submission of your Registration to Doctations does not constitute a binding agreement by Doctations to provide you with access to the Service.  Doctations may deny any person or entity the right to participate in the Service for any reason, in Doctations’ sole discretion.  Any approval granted by Doctations hereunder shall not release you from any obligations or liability hereunder and may be revoked by Doctations at any time. By submitting an Application to Doctations, you verify that you are licensed as a Provider in your jurisdiction.

3.4       Patient Information

A.            Doctor Subscriber’s Access to Patients’ Digital Medical Records.

            1.            Upon a Doctor Subscriber’s request and a Patient Subscriber’s consent thereto, the Doctor Subscriber shall gain access on this Site to digital medical records relating to such Patient Subscriber or any of such Patient Subscriber’s natural or adopted children under the age of eighteen (18) or whatever legal age is determined by the state of residence. Patients digital medical records may be supplied to Doctor Subscribers in any computer-based, legible and accessible format, including but not limited to, PDF, MS Word and ASCII, as deemed appropriate by the Doctor Subscriber and Doctations.

            2.            No Doctor Subscriber shall have access to a Patient Subscriber’s digital medical records unless a Doctor Subscriber requests, and the Patient Subscriber consents to, such access through this Site or otherwise, except  where a Patient Subscriber’s mental or physical incapacitation necessitates Patient digital medical records access in order to administrate lifesaving medical care.

B.            Safeguarding of Patients’ Digital Medical Records

Doctations will exercise commercially reasonable efforts to store, ensure the privacy of, back-up, encrypt and otherwise safeguard Patients’ digital medical records. Doctations’ employees, agents or third-party service providers will not have access to Patients’ digital medical records, unless specifically granted access by Doctations in order to perform certain system-specific maintenance tasks. Notwithstanding the foregoing, Doctations may disclose Patients’ digital medical records if required to do so by law, or if Doctations, in good faith, believes that such disclosure is necessary to (i) comply with law or any requirements of Doctations pursuant to any lawsuit, order, decree or service of process, (ii) protect or defend the rights or property of Doctations, Providers or other Subscribers, or (iii) protect the personal safety of Subscribers or the general public.

C.            Emergency Disclosure.

Doctations, through the Site, will provide Doctor Subscribers with emergency access to Patients’ digital medical records of all of their Patient Subscribers subscribing to Basic+ Tier or above, once such Patient Subscriber’s identity and the requesting Doctor Subscriber’s identity have been confirmed through a telephone callback or similarly reliable means of verification.

3.5            Support; Queries

Doctations shall exercise commercially reasonable efforts to respond to Subscriber’s queries or requests for support with respect to the Service within twenty-four (24) hours.

3.6            Disclaimers Regarding Other Providers

Doctations may attempt to verify that other physicians, as well as specialists, medical imaging centers, therapy institutes, hospitals and other care facilities (collectively, “Providers”) participating in the Service, and any Providers listed on the Site whom you may choose to consult in connection with the Research Services, are reputable individuals, businesses or institutions that are legally permitted and otherwise qualified to provide the components of the Service that you are interested in receiving.  However, if we do attempt to perform any such verification, we will be relying primarily on information provided to us by such Providers.  Thus, we cannot guarantee, and we hereby disclaim any express or implied representation or warranty, that such Providers (i) are in good standing with applicable medical or health and human services boards or similar authorities, any business bureau or similar organization, or legally existing and doing business, in any local, state, federal or other jurisdiction, (ii) are not the subject of patient or other complaints, any regulatory or other governmental inquiry or investigation, or any litigation or other proceeding, (iii) are licensed, authorized or otherwise qualified to provide the products, services or medical treatments that they purport to provide, or (iv) are able to or will achieve the diagnostic or curative results they promise or anticipate, whether in good faith or otherwise.

3.7            Limited Role of Doctations

A.            Doctations is not a medical provider or provider of any services other than the Service.  Doctations does not endorse or recommend the products or services of any particular Provider or evaluate or determine any Patient Subscriber’s need for any particular product, service or medical treatment.  Doctations is not an agent of either you or any other Provider. Doctations’ services are administrative and informational only.  By providing the Service, Doctations is neither soliciting nor providing assistance to Patient Subscribers for any particular product, service or medical treatment. Nothing contained herein shall constitute an offer or promise for the provision to a Patient Subscriber of, or assistance to a Provider with, a treatment or course of treatments, diagnosis, cure, therapy or any other product or service.  We do not give medical, therapeutic or other medical-related advice or advocate any particular treatment or course of treatments, diagnosis, cure, therapy or other related product or service.  

B.        Neither the Alert Services nor the Tracking Service constitutes Doctations’ practice of medicine. In making available the Alert Services and the Tracking Service, Doctations is not purporting to engage, and is not engaging in, the practice of medicine. You acknowledge hereby that the Alert Services are in no way a substitute for your direct examination of your Patient Subscribers with regard to any health problems they may have. You further acknowledge hereby that the Tracking Service is merely a mechanical aid in managing your medical practice, and is not a determinative and decisive tool in arriving at a diagnosis or treatment options.

C.        With respect to any advice you may receive from any other Provider in connection with the Service, Doctations makes no guarantee, and we hereby disclaim any express or implied warranty or representation, as to the quality, availability, cost, accuracy, effectiveness or any other aspect thereof or your satisfaction therewith.

D.        You agree that neither Doctations nor any Doctations Parties (as defined below) will be responsible or liable for any damages, costs, expenses or other loss or liability of any sort arising out of or in any way connected with (i) any Dealings or Collegial Medical Consultation you may have with or obtain from any Provider, (ii) any decisions you may make in connection therewith, (iii) your use of, inability or failure to use, or reliance on, any Dealings or Collegial Medical Consultation offered by any other Provider, (iv) the pathologic or curative outcome of your Dealings or Collegial Medical Consultations with any Provider, or (v) any other act or omission of any other Provider.  .

E.            Doctations, through this Site, does not provide any medical advice, diagnoses, consultations, treatments or recommendations for treatment. Any such information provided or made available in connection with the Research Services on the Site is provided for informational purposes.

3.8            Compensation and Payment

A.        Your Account.  Unless otherwise mutually agreed upon by the Parties, on the day you (i) obtain a username to utilize the Service and (ii) select a Tier which requires a subscription fee (the “Start Date”), you will designate a credit card account, from which all amounts owed by you to Doctations hereunder shall be paid (your “Account”).  As soon as practicable after the Start Date, Doctations shall charge your Account for the annual or monthly fee, if any, associated with such Tier subject to Section 3.8(C) hereto.  Approximately thirty (30) days prior to each anniversary of the Start Date, you will receive a notice giving you the option to re-subscribe to your Tier or to choose a different Tier. Alternatively, you will have the option of having your subscription to a Tier renew automatically, in which case your Account will be charged on or about each anniversary of the Start Date. In addition, as soon as practicable after the end of each one-month period following the Start Date, Doctations shall charge your Account for all Additional Purchased Services

B.            Interest; Late Fees.  

If you fail to pay any amounts due to Doctations hereunder on the date such amounts are due, you will be liable to Doctations for an interest rate of the lesser of eighteen percent (18%) per annum or the then-current highest legal rate on all amounts owed, from the date of indebtedness until paid. Doctations also reserves the right to charge you for all costs of collection, including collection agency and attorneys’ fees and court costs.      

C.            Credit Card.  

            1.            You hereby authorize Doctations to verify your credit card or other Account information, and you agree to provide such further financial information and documentation as Doctations may request from time to time as a condition for your participation in the Service.

            2.            If you wish to purchase Tiers or Additional Purchased Services online, you must provide valid credit card information on the Site’s order form.  By submitting such credit card information, you give us permission to charge your purchases to the card that you designate on the order form.  

D.        No Refund.  All fees for services or membership tiers paid to Doctations are binding and non-refundable, and you hereby agree to pay such amounts to Doctations. Cancellation of your subscription may incur a cancellation fee. Please see the Pricing Plan information for further details.

E.         Taxes.  You shall pay any and all applicable federal, state and local sales, use, value added, excise and other taxes or duties of any nature assessed upon or with respect to your use of the Service.

4. Your Representations and Warranties  

You represent, warrant and agree that:

A.        You have the full right and power to enter into this Agreement, perform all of your obligations and grant all of the rights granted by you hereunder, and your performance of such obligations and grant of such rights does not and will not conflict with any obligation you may have to any other person or entity. You have all licenses, qualifications, permits, registrations and other authorizations and have satisfied any other licensing or similar requirements (collectively, “Authorizations”) that are required in order for you to conduct your business and provide healthcare treatment, and practice medicine, if you are a medical provider.

B.        The information that you provide on your Application, and any other information that you provide to Doctations is, and will remain during the term hereof, true, complete, current and correct in all respects, and you will promptly notify Doctations in writing of any updates or other changes to such information.

C.        In performing all of your obligations under this Agreement, in conducting any and all communications, transactions, Dealings and Collegial Medical Consultations in connection with the Service, and in otherwise conducting your business, you shall comply in all respects with all applicable federal, state, local, international or other laws, regulations or rulings, including those concerning intellectual property, unfair competition, unfair trade practices, deceptive advertising, privacy, direct marketing, e-mail marketing and telemarketing (collectively, “laws”), and you shall not violate the proprietary, contractual or other rights of any person or entity.

D.         Your collection, sharing and other use of all Patients’ digital medical records and any information that you may collect directly through your Dealings in connection with the Service shall comply with (i) all laws, (ii) Doctations’ Privacy Policy (which you hereby acknowledge you have read and agree to abide by), and (iii) the terms of this Agreement.  

5. Disclaimers

A.        THE SERVICE IS PROVIDED “AS IS”.  EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, DOCTATIONS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE) ABOUT THE SERVICE (OR ANY ELEMENT THEREOF), YOUR USE OF THE SERVICE AND ANY RESULTS THAT YOU MAY OBTAIN THEREFROM, OR THAT THE WEB SITE OR ANY OTHER ELEMENT OF THE SERVICE WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE.  THIS AGREEMENT IS NOT FOR A SALE OF GOODS.

6. Limitation of Liability

A. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE TERMS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT NONE OF THE DOCTATIONS PARTIES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE DOCTATIONS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE TREATMENTS, GOODS AND SERVICES RESULTING FROM ANY TREATMENTS, GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO, ALTERATION OF, OR LOSS OR DELETION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (v) WRONGFUL, INCOMPLETE OR FAULTY TRANSCRIPTION BY MEDICAL TRANSCRIPTIONISTS; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE. THIS LIMITATION OF LIABILITY SHALL BE EFFECTIVE NOTWITHSTANDING THAT YOUR AVAILABLE REMEDIES MAY FAIL OF THEIR ESSENTIAL PURPOSE.  YOU ACKNOWLEDGE AND AGREE THAT DOCTATIONS HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF WARRANTY AND LIABILITY CONTAINED IN THIS AGREEMENT, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN DOCTATIONS AND YOU.

B.        YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT MEDICAL TRANSCRIPTIONISTS ARE INDEPENDENT CONTRACTORS OF DOCTATIONS, AND ARE NOT EMPLOYEES, AGENTS, PARTNERS OR OTHERWISE AFFILIATED WITH DOCTATIONS. NONE OF THE DOCTATIONS PARTIES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES RESULTING FROM ANY DEALINGS WITH MEDICAL TRANSCRIPTIONISTS, INCLUDING WITHOUT LIMITATION, INCOMPLETE OR FAULTY TRANSCRIPTION AND LOSS OF TRANSCRIBED OR TO-BE-TRANSCRIBED DATA OR RECORDS.

7. Term and Termination

This Agreement will commence on the date on which Doctations notifies you that you have been accepted for participation in the Service and will end when terminated by either Party for any reason, with or without cause, by giving the other Party notice of termination in accordance with the terms hereof.  Upon any termination of this Agreement, you shall be responsible for any outstanding amounts owed by you to Doctations hereunder as of the date of such termination, and you authorize Doctations to charge your Account for all such amounts or otherwise invoice you for such amounts immediately following such termination.  

8. Indemnification  

You agree to indemnify, defend and hold Doctations and its parent, subsidiary and affiliated companies, and its and their respective officers, directors, employees and agents  harmless from and against any and all third party claims, damages, actions, proceedings, settlements and expenses arising out of or in connection with use of the Service by you.  

9. Ownership

You acknowledge and agree that, as between you and Doctations, except with respect to any of your Marks (as defined below) that may be displayed through the Service, Doctations owns all right, title and interest in and to the Site and all Patient digital records collected by Doctations in connection with the Service, and all other elements of the Service (including the copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent in the Service, and any proprietary rights in the know-how, methodologies, source code, object code, concepts, processes and general knowledge and techniques developed or used by Doctations in connection with the Service), and you shall not make any claims of ownership therein or thereto.

 

10. Trademarks

              In the event that you upload to the Site or otherwise provide to Doctations any of your name, logos, trademarks service marks or other marks (collectively, “Marks”), or any Marks of any third party in connection with certain services or products that you may offer to any other party, such action shall be deemed a grant by you to Doctations of a non-exclusive, royalty-free, worldwide license to use such Marks (including the distinctive lettering and format of such Marks) on the Site. Within a reasonable time following a termination of this Agreement, unless otherwise mutually agreed, Doctations shall remove any of your Marks from the Site and shall discontinue any other uses of such Marks set forth above. You shall be deemed the owner of your Marks, subject to the license to Doctations hereunder.  

11. Links and Third Party Content

Links on the Site to third-party websites are provided only as a convenience to you.  If you use these links, you will leave the Service.  Doctations does not control or endorse any such advertiser or other third-party websites, and your Dealings with such third parties are solely between you and such third parties.  You agree that neither Doctations nor any Doctations Parties (as defined herein) will be responsible or liable for any loss or damage of any sort incurred as the result of any such Dealings or as the result of the presence of such advertiser or other third party links on the Service, for any content, goods or services provided on or through these outside websites or for your use or inability to use such websites.  You will use these links at your own risk.

 

12. Confidential Information

A.        Each Party agrees to treat all information and materials received from the other Party or such other Party’s affiliates, directors, employees, consultants, subcontractors or agents, as confidential and proprietary to, and trade secrets of, such other Party (such confidential and proprietary information and materials are hereinafter individually and collectively referred to as “Confidential Information”).  Each Party further agrees to hold all Confidential Information of the other Party in strict confidence, not to disclose it to any person or entity other than its employees, consultants, agents or other service providers on a need-to-know basis only, and not to use it in any way for its own or any third party’s benefit, without the prior written consent of the other Party.  

B.            Notwithstanding the foregoing, “Confidential Information” shall not include information of a Party which (i) is in the public domain at the time of disclosure through no fault of the disclosing Party, (ii) becomes rightfully known to the disclosing Party from a third-party source under no obligation to maintain confidentiality, (iii) becomes publicly available through no fault of or failure to act by the disclosing Party in breach of this Agreement, or (iv) was already known by the disclosing Party prior to the Parties having access to one another. In addition, the provisions of Section 14(A) above shall not apply with respect to any Confidential Information that is required by court order or by governmental authority to be disclosed, provided that the disclosing Party uses reasonable efforts to make such disclosure subject to a protective order or confidentiality agreement.

13. Compliance Verification  

In order to verify your compliance with this Agreement, Doctations shall have the right to conduct reviews of your performance hereunder (“Compliance Verification”) if Doctations reasonably believes that you may be engaged in any activities that do not comply with this Agreement or may not be authorized by Doctations (such as disclosing Doctations’s Confidential Information or brokering or reselling any Patient digital medical records derived therefrom, without the explicit consent of Doctations).  Doctations shall give you reasonable advance notice of any Compliance Verification request, and you shall cooperate with Doctations and shall provide Doctations or its designee with any relevant data and/or documents, and arrange any meetings with your personnel, as reasonably requested by Doctations in connection with its Compliance Verification.  If a Compliance Verification leads Doctations to conclude (in its sole discretion) that you have breached the provisions of this Agreement, or that any of your business practices related to your use of the Service are otherwise unsatisfactory, then you shall use your best efforts to promptly change such business practices to the reasonable satisfaction of Doctations.  Alternatively, at its option, Doctations may terminate this Agreement upon notice to you, in addition to pursuing any other remedies available to Doctations.

14. Termination

Doctations reserves the right, without notice and at its sole discretion, to suspend or terminate the Agreement and/or your ability to access or use the Service (or any part thereof), and to block or prevent future access to and use of the Service for any reason, including your breach of the Agreement or other conduct by you that Doctations considers inappropriate. Doctations reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.  Except as otherwise expressly stated in the Agreement, you agree that neither Doctations nor any of its affiliated companies shall be liable to you or to any third party for any modification, suspension or discontinuation of the Service.

15. Miscellaneous

A.        Service Providers. You acknowledge and agree that Doctations shall have the right to engage third-party vendors, subcontractors or other service providers to perform any part of the Service hereunder.  It is understood and agreed, however, that Doctations shall not be responsible for any failure of any such service provider to fulfill its obligations in the absence of any negligence on Doctations’s part.

B.        Non-Exclusivity.  You and Doctations agree that the relationship between you and Doctations will be non-exclusive and either Party may enter into any business relationships with third parties, whether or not competitive with this one.   

C.        Force Majeure.  Doctations shall not be liable for any non-performance, delays, interruptions or loss resulting from causes out of its reasonable control, including electronic or mechanical equipment malfunction, telephone problems, Internet problems, software problems, storms or other acts of God, fires, acts of government, terrorist acts, labor strikes, labor or materials shortage, hackers or acts or omissions of suppliers.

D.            Assignment.  This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective, successors and permitted assignees.  You may not assign this Agreement or any of your rights and obligations hereunder without the prior written consent of Doctations.

E.            Governing Law and Jurisdiction.  This Agreement, the rights and obligations of the Parties, and any claims or disputes thereto, shall be governed by and construed in accordance with the laws of the State of New York without reference to conflict of laws principles.  Doctations makes no representation that the Service or any part thereof is appropriate or available for use by any other party in jurisdictions outside the United States, or that this Agreement and the Service comply with the laws of any other country.  Subscribers who use the Service and are located outside the United States do so on their own initiative and at their sole risk and are responsible for compliance with local laws (in addition to all applicable United States laws), if and to the extent local laws are applicable.  

F.            Dispute Resolution. In the event of any dispute or controversy arising out of or relating to this Agreement or the breach hereof, the Parties shall use reasonable efforts to settle such dispute or controversy amicably in good faith negotiations, in order to reach a just and equitable solution satisfactory to both Parties. If, despite such efforts, the Parties fail to reach an amicable agreement within fifteen (15) days, the Parties shall submit the dispute or controversy to a binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall take place before a sole neutral arbitrator in the New York City metropolitan area, at a place and time mutually agreed upon by the Parties or, failing mutual agreement, selected by the arbitrator. The arbitrator shall have experience in the nature and subject matter of the dispute being arbitrated.  Each Party shall bear its own costs and expenses of arbitration, but the arbitrator may award attorneys’ fees and costs to the prevailing Party. Judgment may be entered on any award rendered by the arbitrator in any court having jurisdiction thereof.

G.            Integration.  This Agreement contains the complete agreement between the Parties with respect to the subject matter hereof and supersedes all prior proposals, negotiations, agreements and other representations or communications, whether oral or written between the Parties with respect thereto.

H.            Amendment.  ANY PROVISION OF THIS AGREEMENT, AND ANY ELEMENT OF THE SERVICE, MAY BE AMENDED OR MODIFIED BY DOCTATIONS AT ANY TIME, IN ITS SOLE DISCRETION. AMENDMENTS OR MODIFICATIONS MAY INCLUDE CHANGES IN BIDDING TERMS AND PAYMENT PROCEDURES AND CHANGES TO THE WEB SITE.  DOCTATIONS WILL NOTIFY YOU OF ANY MATERIAL AMENDMENTS OR MODIFICATIONS IN ACCORDANCE WITH SECTION 14(M) HEREOF.  YOUR CONTINUED USE OF THE SERVICE AFTER NOTIFICATION OF SUCH CHANGES SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES.

I.            Waiver.  No term or condition of this Agreement shall be deemed waived, and no breach or omission excused, unless in writing and signed by the Party against whom enforcement of such waiver or consent is sought, regardless of any failure or delay by any Party in exercising any right, power or privilege hereunder.  A waiver of any condition or term of this Agreement, or right or remedy hereunder, shall not constitute a waiver thereof in the future.

J.            Independent Contractor.  The Parties to this Agreement shall be deemed independent contractors. In providing the Service, Doctations is not acting as your agent or representative, and nothing contained herein shall be construed as making either Party the agent of the other Party, as granting to either Party the right to enter into any contract on behalf of any other Party, or as establishing a partnership, joint venture or similar relationship between the Parties.

K.            Survival.  Any provision of this Agreement necessary to interpret or enforce the respective rights and obligations of the Parties hereunder, including but not limited to Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 shall survive the expiration or termination of this Agreement.

L.            Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect.

M.       Notice.  Except as otherwise expressly provided herein, all notices under this Agreement shall be provided as set forth below.  Either Party may change its address for the purpose of receiving notices under this Agreement by giving notice to the other Party in the manner specified in this Section.

Notices to Doctations from you shall be in writing, and shall be delivered in person, by facsimile or by overnight courier. The address and facsimile number for Doctations is Doctations, Inc.600 Old Country Road, Suite 541, Garden City, NY 11530, Attn: President and CEO, facsimile 516-240-6165. Notices may also be sent by first-class United States mail, if properly addressed, postage prepaid, and registered or certified (return receipt requested). Notices shall be considered as delivered upon written confirmation of receipt or three days after mailing in the required manner.

Notices to you from Doctations shall be made in one or more of the following ways: (a) by written notice as provided above to your address, or facsimile number as specified in your Application; (b) by an e-mail to the e-mail address set forth in your Application; or (c) through a posting of the notice on the Site.

N.            Headings; Terms.  All headings used herein are for convenience of reference only and do not in any way define or interpret the intent of the Parties or modify or otherwise affect any of the provisions hereof, and shall not have any affect on the construction or interpretation of this Agreement.  All uses of “include” or “including” herein shall be understood to mean “include, or including, without limitation”.