Thea Health Practice Partner Program Service Agreement

THIS SERVICE AGREEMENT (the “Agreement”) incorporates the corresponding Order Form and constitutes a binding agreement by and between the entity, including any medical practice group or other health care provider organization, on whose behalf this Agreement is entered into (“Partner”) and Thea Health Inc., a Delaware corporation whose principal place of business is: 221 Locust Avenue, San Rafael, California 94901 (“Thea”). Partner and Thea are sometimes referred to herein individually as a “Party,” or together as the “Parties.” This Agreement shall be effective on the date on which Partner accepts this Agreement (the “Effective Date”). Thea has agreed to authorize Partner to participate in Thea’s Partner Program and offer Thea services under the terms and conditions (“Terms”) of this Agreement. By clicking on the checkbox titled “I Agree To the Terms of Service” Partner expressly agrees to and consents to be bound by the all of the Terms of this Agreement.

 

1. DEFINITIONS.

(a) COMMUNICATION OCCURRING THROUGH THE THEA PLATFORM OR ENABLED BY THE THEA PLATFORM SHOULD NOT BE USED FOR EMERGENCIES; AND

(b) ANY INFORMATION SHARED WITH PARTNER OR THEIR END USERS ON THE THEA PLATFORM IS SOLEY INFORMATIONAL. PARTNER AND ITS CLINCIAL END USERS ARE SOLEY RESPONSIBLE FOR MANAGING THE TREATMENT OF THEIR PATIENTS INCLUDING APPROPRIATE USE OF ANY INFORMATION OBTAINED THROUGH THE THEA PLATFORM.

2.5 Compliance with Laws. Partner shall comply with all applicable federal, state and local laws, statutes, regulations, including without limitation, HIPAA, data protection laws and regulations, and where necessary has provided all notices, and obtained all rights, permissions, and consents for Thea (and where applicable its subcontractors) to process, access, use and display End User data for the purpose of providing the Thea Service under the Terms, as requested by Partner. The foregoing compliance obligation shall include responsibility for compliance with any medical or health care guidelines or regulations in any aspect of the treatment of patients by physicians and other medical providers.

2.6 Verification. Partner’s use of the Thea Service is subject to verification by Thea of each Clinical End User’s identity and credentials and to his or her ongoing qualification as such. Partner shall cooperate with Thea’s verification processes by disclosing to Thea information reasonably required by Thea to verify each Clinical End User’s identity and credentials, which may include by way of example the clinician’s state of licensure and licensure number, Drug Enforcement Agency or similar prescribing number and National Provider Identifiers (“NPIs”). Thea may use and disclose Clinical End User personal information for verification purposes, including making inquiry of third parties concerning the End User’s identity and professional and practice credentials. Partner authorize such third parties to disclose to Thea such information as Thea may request for such purposes, and Partner shall hold them and Thea harmless from any claim or liability arising from the request for or disclosure of such information. In addition to Thea’s termination and suspension rights under this Agreement, Thea may terminate a Clinical End User’s access to or use of the Thea Service at any time if Thea is unable at any time to determine or verify the Clinical End User’s qualifications or credentials.

2.7 Representations, Warranties and Covenants. Partner represents, warrants, and covenants to Thea that upon execution and throughout the term of this Agreement:

(a) Partner is not bound by any agreement or arrangement which would preclude Partner from entering into, or from fully performing the services required under, this Agreement.

(c) Each Clinical End User’s medical staff privileges at any health care facility have never been denied, suspended, revoked, terminated, voluntarily relinquished under threat of disciplinary action, or made subject to terms of probation or any other restriction.

(d) No Clinical End User has in the past conducted, and is not presently conducting, a medical practice in such a manner as to cause the Clinical End User to be suspended, excluded, debarred or sanctioned under the Medicare or Medicaid Programs or any government licensing agency, and has never been convicted of an offense related to health care, or listed by a federal agency as debarred, excluded or otherwise ineligible for federal program participation.

(e) Each Clinical End User has, and shall maintain throughout the term of this Agreement, an unrestricted license to practice medicine in the state or states in which they are treating patients.

 

3. CUSTOMER SERVICE AND SUPPORT.

3.1  Support of End Users. Partner shall at its sole expense provide End User support.

3.2  Thea Support and Service Levels. Thea agrees to provide Partner with the support and service levels for the Thea Service that Thea determines in its sole discretion are necessary and advisable for the use of the Thea Services and Thea Platform. Partner acknowledges and agrees that Partner’s sole remedy for Thea’s failure to meet service levels determined by Thea shall be termination of this Agreement for a material breach as set forth in Section 6.2. In no event shall Partner seek to recover, and Partner hereby waives in full, any monetary damages for breach or default by Thea pursuant to this Agreement.

 

4. COMPENSATION.

4.1 Expenses. Each Party, unless otherwise arranged in writing, will be responsible for all of its own costs and expenses, including without limitation, any fees imposed by U.S. or State laws, regulations or rules, incurred by such Party in performing its obligations or exercising its rights under this Agreement.

4.2 Taxes and Related Local Regulations. Each party shall be responsible for, collect and pay (and indemnify and hold harmless the other party and its affiliates from) any sales, use, excise, import or export, value-added or similar tax or duty not based on the other party’s revenue or net income, including any penalties and interest, as well as any costs associated with the collection or withholding thereof, including attorneys’ fees, arising from the operation of, or any transaction or transmission contemplated hereby. If required by the applicable tax authority, Thea shall collect taxes on behalf of Partner with an invoice including a subtotal, applicable tax amount, and grand total.

4.3 Fees. Partner shall pay to Thea some combination of a subscription fee, payable in advance, for each Clinical End User’s participation in Thea’s Practice Partner program and a per-consult fee for each specialist consulted (collectively “Fees”) as set forth in the Order Form. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon ten (10) days prior notice to Customer (which may be sent by email). Partner’s Administrator can add, remove, or change Clinical End Users from within the Account Settings page on the Thea Platform. When Clinical End Users are added to Partner’s Practice, Partner will be billed for such Clinical End Users for the entirety of the current subscription term and at Partner’s next subscription renewal unless they have been removed by an Administrator prior to the end of the current subscription Term or no longer have an account as of the end of the current subscription Term. If Customer believes that Company has billed Partner incorrectly, Partner must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

 

5. CONFIDENTIALITY

5.1 Confidential Information. During the term of this Agreement, each party hereto may disclose (the “Disclosing Party”) to the other party (the “Receiving Party”) certain non-public information in connection with the performance of this Agreement, including without limitation technical data, trade secrets, plans for products or services, customer or supplier lists, marketing plans, software, source code for software, financial documents or data, inventions, processes, methods, technology, and designs, or other information which by its nature or manner of disclosure reasonably ought to be considered confidential, whether disclosed orally or in writing (including electronic formats), and whether or not marked as confidential, proprietary or with a similar legend (collectively, the “Confidential Information”).

5.2 Treatment of Confidential Information. The Receiving Party shall only use Confidential Information of the Disclosing Party in the performance of its duties hereunder, holding such Confidential Information in strictest confidence and only disclosing such Confidential Information to those employees of the Receiving Party to whom disclosure is necessary. The Receiving Party agrees to protect and care for the Confidential Information of the Disclosing Party as it protects and cares for its own Confidential Information of a similar nature, and in any event using no less than a reasonable degree of care. Confidential Information disclosed hereunder shall remain the property of the Disclosing Party. The Receiving party agrees that it shall not make disclosure of the Confidential Information of the Disclosing Party during the Term hereof and for a period of five (5) years thereafter, without the express written consent of the Disclosing Party. Notwithstanding the foregoing, trade secrets of the Disclosing Party shall remain confidential under this Agreement without any time limit or expiration date.

5.3 Exclusions. Confidential Information does not include information which (i) is rightfully in the Receiving Party’s possession before it is received from the Disclosing Party, (ii) is or becomes a matter of public knowledge or generally known in the industry through no fault of the Receiving Party, (iii) is rightfully furnished to the Receiving Party by a third party without restriction on disclosure or use, or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

5.4 Disclosure Pursuant to a Judicial Order. A Receiving Party will not be deemed to be in violation of this Section 5 (Confidentiality) to the extent it is required by judicial order or governmental regulation to disclose Confidential Information, provided it has given the Disclosing party prior notice sufficient to permit it to seek a protective order or other confidential treatment of its Confidential Information, unless the Receiving Party is prohibited by law from doing so. Such Confidential Information shall remain confidential for all other purposes.

5.5 HIPAA Compliance. The Business Associate Agreement shall govern the HIPAA compliance between the Parties.

 

6. TERM AND TERMINATION

6.1 Term. This Agreement will remain in effect for one month from the Effective Date (the “Initial Term”). The Initial Term will automatically renew for successive one-month renewal terms until terminated by either Party on at least one (1) days written notice prior to the end of the Initial Term or any renewal term. The Initial Term and any renewal terms are, collectively, the “Term.”

6.3 Termination. Notwithstanding the foregoing, either Party may terminate the Agreement upon delivery of written notice: (a) if the other Party is in material default with respect to any provision of this Agreement or materially breaches any provision of this Agreement, and such material default or breach is not cured within ten (10) days after the date of written notice thereof, (b) immediately if the other Party becomes insolvent, files for bankruptcy or similar protection under applicable state or federal law, or otherwise ceases operations, (c) immediately if Partner is in violation of the payment terms detailed in Section 4 respectively.

6.4 Effect of Termination. Both Parties’ rights and obligations under this Section 6, as well as Section 2, 4, 5, 7, 8, 9, 10, 11, 12, 13 shall survive expiration or termination of this Agreement. Upon termination, either party may pursue any remedies provided by applicable law.

 

7. THEA WARRANTY

THEA DOES NOT REPRESENT OR WARRANT THAT THE THEA PLATFORM OR THE THEA SERVICE COMPLIES WITH ANY LEGAL REQUIREMENTS, IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. THE SERVICE IS PROVIDED ACCORDING TO ANY WRITTEN DOCUMENTATION PROVIDED BY THEA. PARTNER USE OF THE SERVICE IS AT THE DISCRETION AND RISK OF PARTNER AND PARTNER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THEIR USE, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO PARTNER OR PARTNER’S OR ITS USER’S COMPUTER SYSTEMS OR LOSS OF DATA. THEA MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE SUITABILITY OF THIRD-PARTY SERVICES OR FOR THE ACTS OR OMISSIONS OF PROVIDERS OF SUCH THIRD-PARTY SERVICES.

 

8. LIMITATION OF LIABILITY

THEA SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO PARTNER, OR ANY THIRD PARTY, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE THEA PLATFORM, THE THEA SERVICE, THE THEA SOFTWARE, THE THEA TOOLS OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT THEA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL EITHER PARTY’S LIABILITY OBLIGATIONS UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES DUE FROM PARTNER TO THEA DURING THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO SUCH CLAIM; PROVIDED, HOWEVER, THE FOREGOING LIMITATION SHALL NOT APPLY TO ANY CLAIM FOR INDEMNITY IN SECTION 10 OR A BREACH OF SECTIONS 2.3 OR 5.

SOME JURISDICTIONS MAY NOT ALLOW FOR THE OPERATION OF SERVICES WITH THE CHARACTERISTICS OF THE THEA SERVICE, AND/OR MAY IMPOSE REQUIREMENTS AND RELATED FEES WHICH AT THE SOLE DISCRETION OF THEA ARE DEEMED BEYOND THE SCOPE ENVISIONED BY THIS AGREEMENT. THE OPERATION OF THE THEA SERVICE IN SUCH JURISDICTIONS IS EXPRESSLY FORBIDDEN.

 

9. FORCE MAJEURE

Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, telecommunications outages, war, terrorism, governmental action, or any other cause which is beyond the reasonable control of such Party, excluding any payment or other financial obligations of Partner to Thea.

 

10. INDEMNITY

10.1 Partner Indemnity. Partner agrees to indemnify, defend, and hold Thea and its affiliates, officers, directors, agents, service providers, partners, and employees harmless from any claim, demand or allegation made by any third party, and all related losses, damages, liabilities, costs and expenses (including attorneys’ fees) (collectively, “Losses”), that it is any way related to: (a) Partner use of the Thea Platform, Thea Service, Thea Software or Thea Tools; (b) use of the Thea Service by the End Users; (c) any act or omission by Partner or any of its clinicians, employees, consultants or agents; (d) any personal injury, loss or death of Partner’s or its clinician’s patients; and (e) any breach of this Agreement by Partner or its clinicians, employees, consultants or agents.

10.2 Thea Indemnity. Thea agrees to indemnify, defend, and hold Partner and its affiliates, officers, directors, agents, service providers, partners, and employees harmless from any Losses, that it is any way related to: (a) infringement of any third party’s intellectual property rights arising from the Thea Platform, Thea Service, Thea Software or Thea Tools; (b) any negligent act or omission by Thea or any of its employees, consultants or agents; and (c) any breach of this Agreement by Thea or its employees, consultants or agents.

 

11. JURISDICTION AND VENUE

Partner agrees that the statutes and laws of the State of California, without regard to any principles of conflicts of law, will apply to all matters relating to the Partner use of the Thea Platform or the Thea Service, including any disputes under this Agreement, and Partner further agrees that any litigation shall be subject to the exclusive jurisdiction of the state or federal courts located in San Francisco in the State of California, USA. Both Partner and Thea irrevocably consent to personal jurisdiction in such courts and agree to appear in such courts in connection with any claim arising hereunder.

 

12. NOTICES

All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed given as of the date delivered if sent by e-mail transmission (confirmation received) to support@theahealth.com for notices to Thea and to the email address associated with the Thea account of Partner’s Administrator. Thea may also provide Partner notice through notifications on the Thea Platform.

 

13. GENERAL INFORMATION

These Terms govern the use of the Thea Platform, Thea Software, Thea Tools and the Thea Service by Partner and constitute the entire agreement between Partner and Thea regarding the subject matter hereof. These Terms supersede any prior or contemporaneous agreements between Partner and Thea (including, but not limited to, any prior versions of these Terms). The failure of Thea to exercise or enforce any right or provision of these Terms does not constitute a waiver of that right or provision, and a waiver of any default is not a waiver of any other default. If a court of competent jurisdiction finds any provision of these Terms to be invalid, the provision shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the parties’ original intentions as reflected in the provision, and so that the other provisions of the Terms remain in full force and effect. Thea may modify or update these Terms from time to time in Thea’s sole discretion. Thea will notify Partner of a material changes by posting the updated Terms of Service at www.theahealth.com/terms-of-service. Partner may also be notified via the contact information provided to Thea, or upon Partner’s next log-in to the Thea Health Platform. Partner’s continued use of or access to the Thea Platform following the notice of any changes to these Terms constitutes acceptance of those changes. All headings in the Terms are for convenience only and have no legal or contractual effect. The Agreement may not be transferred by Partner without Thea’s prior written approval, which it may withhold in its sole discretion. Thea expressly reserves and shall have the right to assign the Agreement and to delegate any of its obligations hereunder.