Medical Group Terms & Conditions
Last Updated: May 16, 2018
Capitalized terms used in these Terms and Conditions are defined in §15 below.
Software Product; Support Services.
1.1 The Medical Group may not (a) authorize or license any third-party other than its officers, employees and independent contractors to use the Software Product or any part thereof (whether directly or indirectly), or (b) distribute, license, sublicense, promote, distribute, market, sell, lease, assign, convey, transfer or transmit the Software Product or any part thereof.
1.2 All right, title and interest in and to each of the following is, shall be and at all times shall remain the exclusive property of Hyr Medical and any third-parties whose software programs may have been, or may be, incorporated into the Software Product: (a) the Software Product, (b) any software, software modifications, derivative works, processes, and other intellectual property rights relating to data processing and information technology developed or held by either Party from its use of the Software Product and (c) all copyright, trademark, patent, trade secret and intellectual property rights in the Software Product. Hyr Medical, on behalf of itself and any third parties with software that may have been, or may be, incorporated into the Software Product, reserves all of its, and all of such third parties’, rights in the same.
1.3 Hyr Medical shall cause the Support Services to be available 24 hours per day and 7 days per week.
2.1 Within 30 days of a Physician completing an Assignment and the Medical Group approving the submitted Physician timesheet, Hyr Medical shall deliver to the Medical Group an invoice for the Service Fees for such Assignment.
2.2 If a Physician fails to complete an Assignment, the Medical Group shall be obligated to pay for only those services completed by such Physician in respect of such Assignment (if any). If the Medical Group cancels an Assignment more than 30 days prior to the Assignment Start Date, the Medical Group may not be obligated to pay any Service Fees in respect of such Assignment. If the Medical Group cancels any Assignment within the 30-day period that precedes the Assignment Start Date, or cancels any Assignment after the Assignment Start Date, the Medical Group will be obligated to pay the Service Fee in respect of such Assignment, provided, however, that if the Medical Group so cancels such Assignment for Cause, and has notified Hyr Medical of its intent to do so prior to such cancellation, the Medical Group shall be obligated to pay for only those services completed by such Physician in respect of such Assignment (if any).
2.3 Within 30 days of receiving each invoice from Hyr Medical, the Medical Group shall pay to Hyr Medical all of the Service Fees contemplated in such invoice. The Medical Group may reduce the Service Fees actually paid by an amount equal to 1% of such Service Fees if the Medical Group’s payment of such Service Fees will be received by Hyr Medical within 10 days of receiving such invoice. If any Service Fees remain unpaid at the end of the 30-day period contemplated in this §2.5, interest shall accrue monthly at a rate of 1% of the amount that remains unpaid.
2.4 Hyr Medical, on behalf of the Medical Group, shall be responsible for paying Physicians who complete Assignments. If the amounts so paid by the Medical Group are to be delivered to a Physician, Hyr Medical shall act as the Physician’s limited payment collection agent appointed solely for the purpose of accepting certain of the Service Fees from the Medical Group.
2.5 The Medical Group shall be responsible for paying, and/or shall reimburse Hyr Medical for, any sales, use, excise, value-added, withholding or other taxes due or payable as a result of the Service Fees and shall reimburse Hyr Medical for any fees, costs, expenses (including reasonable attorneys’ fees and costs) or other amounts incurred in collecting such Service Fees.
2.6 The Medical Group shall pay Hyr Medical a cost per hour for the Physician that is equal to the Physicians rate per hour plus a 20% markup on the Physician rate.
Posts, Opportunities and Assignments.
3.1 The Medical Group will provide a Post for each Opportunity. Hyr Medical will make available to Physicians all of the Posts that are complete and otherwise prepared in accordance with Hyr Medical’s requirements. Hyr Medical does not guarantee that a Physician will reply to each Post or that any Opportunity will result in an Assignment.
3.2 The Medical Group will notify Hyr Medical within 2 days of receiving any Physician’s reply to a Post if such Physician has previously sought to provide services to the Medical Group, is or was employed by, or provides or provided services to, the Medical Group or is otherwise known to the Medical Group. If the Medical Group fails to so notify Hyr Medical, the Medical Group will be obligated to Hyr Medical for the Service Fee for such Physician if such Physician is selected by the Medical Group to perform services on its behalf.
3.3 The Medical Group will not request that a Physician provide services during an Assignment that materially deviates from that which is described in the Post corresponding to such Assignment and will not to require that a Physician provide services on its behalf according to a work schedule that would be deemed to be unreasonable within the industry. The Medical Group may not require that an Assignment be completed at a location other than the location set forth in the Post corresponding to such Assignment. If the Medical Group desires for an Assignment to be completed at a location other than as set forth in the Post, there may be an additional Service Fee.
3.4 The Medical Group will provide directly to each Physician providing services on its behalf a copy of, or electronic access to, all of the Medical Group’s policies and procedures to which such Physician will be subject when providing services on the Medical Group’s behalf. Each Physician has agreed to comply with any and all such policies and procedures and to comply with all applicable professional standards relating to patient care and work environments.
3.5 The Medical Group will make available to each Physician providing services on its behalf the usual and customary equipment and supplies necessary and/or reasonable to provide such services and a well-maintained practice environment that is otherwise suitable to provide such services and in compliance with acceptable ethical, medical and legal standards. 3.6 Each Physician has agreed to promptly execute any and all documents that are reasonably required to assign to the Medical Group any and all billing rights to fees due from patients in respect of any Assignment.
Licensure; Insurance; Compliance.
4.1 Each Physician has represented that such Physician holds, and has agreed to maintain, all licenses applicable to such Physician’s providing services on behalf of the Medical Group. The Medical Group will comply with all applicable professional standards relating to patient care and work environments (including those of the Joint Commission on Accreditation of Healthcare Organizations if the Medical Group is so accredited).
4.2 Hyr Medical will provide occurrence based, professional liability insurance coverage for each Physician providing services to the Medical Group to cover all incidents that may occur while such Physician is providing services to the Medical Group, regardless of when a claim is made, in limits of at least $1,000,000 per incident and $3,000,000 in the aggregate. Alternatively, the Medical Group shall provide such coverage to each Physician if Hyr Medical is notified in advance.
4.3 The Medical Group will comply with Hyr Medical’s reasonable risk management and quality assurance activities. Without limitation of that set forth in the immediately preceding sentence, the Medical Group will notify Hyr Medical of any incident, potential claim or claim that may give rise to a claim under Hyr Medical’s professional liability policy of insurance and provide to Hyr Medical a description of, and all other information related to, any of the same as may be requested by Hyr Medical from time to time.
5. HIPAA Compliance.
5.1 In order to carry out its insurance obligations hereunder and for risk management purposes, Hyr Medical occasionally may receive or request patient information.
5.2 Each of Hyr Medical and the Medical Group acknowledge that Hyr Medical is a business associate as that term is defined under HIPAA. As a business associate, Hyr Medical shall: (a) implement appropriate safeguards and maintain PHI as required by HIPAA, (b) use and disclose only the minimum necessary PHI, (c) use and disclose PHI only as permitted under HIPAA for legal, management and administrative purposes in connection with treatment, payment and healthcare operations or as required by law, (c) require third parties to whom it may disclose PHI to agree in writing to similar restrictions and to comply with HIPAA, (e) track disclosures of PHI as required under HIPAA, to include the nature of the information disclosed, the date of the disclosure, to whom the information was disclosed, address of the recipient if known and the purpose of the disclosure, and provide the Medical Group with an accounting of such disclosures promptly upon request, (f) promptly notify the Medical Group of disclosures of PHI in violation of HIPAA and the Agreement and take steps to mitigate, to the extent practicable, deleterious effects of improper use of PHI, (g) promptly make PHI available to the Medical Group and patients upon request and (h) permit patients to request amendment to, or correction of PHI, amend and/or correct PHI as appropriate when so requested, notify the Medical Group of requests for correction and amendments to PHI by patients and incorporate into PHI amendments and/or corrections made to PHI by the Medical Group as directed by the Medical Group.
5.3 Hyr Medical further acknowledges that PHI received from the Medical Group shall remain the Medical Group’s property and that, within 10 business days of the Medical Group’s request or upon termination of the Agreement, such PHI shall be returned to the Medical Group or destroyed, if the Medical Group so directs (provided, however, that Hyr Medical may retain a copy of PHI for its own risk management purposes and as may be required by law). If such return or destruction is infeasible, Hyr Medical shall use such PHI only for purposes that make such return or destruction infeasible and the provisions of the Agreement shall survive with respect to such PHI.
5.4 Hyr Medical shall make available to the Medical Group, upon the Medical Group’s request, copies of Hyr Medical’s internal policies and procedures regarding HIPAA compliance.
5.5 Hyr Medical shall execute a business associate agreement with the Medical Group to supplement the Agreement if requested, subject to the Parties agreement upon terms and conditions of the business associate agreement.
6. Physician Recruitment
6.1 During the Physician Exclusivity Period, the Medical Group (a) may not solicit or induce, or attempt to solicit or induce, to provide services, directly or indirectly, for the Medical Group, whether on a temporary, permanent or other basis and whether as an employee, independent contractor or otherwise, any Physician who has replied to a Post and (b) may not hire, engage or otherwise procure the services of any Physician who has replied to a Post, whether on a temporary, permanent or other basis and whether as an employee, independent contractor or otherwise.
6.2 If, during the Physician Exclusivity Period, the Medical Group, without using the Software Product, procures the services of any Physician who has replied to a Post, whether on a temporary, permanent or other basis and whether as an employee, independent contractor or otherwise, the Medical Group shall pay to Hyr Medical an amount equal to the Recruitment Fee. Hyr Medical’s Recruitment Fee is equal to $10,000 and applies across all Physician specialties. Before any such Physician begins to provide any such services, each Recruitment Fee, and any Service Fees related to the services such Physician provided on behalf of the Medical Group, shall be paid to Hyr Medical by the Medical Group.
7. Representations & Warranties.
7.1 The Medical Group hereby represents and warrants to Hyr Medical that, as of the Signature Date, (a) it has the full right, power and authority to enter into, and fully perform its obligations according to, the Agreement, (b) it is not currently under investigation or debarred by any state or federal governmental agency for Medicare or Medicaid fraud and that no such proceeding is pending, (c) to the best of its knowledge, none of its physicians and/or staff is under sanction by a state or federal governmental agency nor excluded from participating in the Medicare or Medicaid programs and (d) that the ability of Hyr Medical to verify if any of the Physicians is currently debarred is dependent upon the accuracy of the information contained on the Office of the Inspector General’s list of excluded persons and the representations of such Physician.
7.2 Hyr Medical hereby represents and warrants to the Medical Group that, as of the Signature Date, (a) it has the full right, power and authority to enter into, and fully perform its obligations according to, the Agreement, (b) it has the full right, power and authority to grant to the Medical Group the rights and licenses described herein, (c) it has not knowingly infringed upon the intellectual property rights of any third party or knowingly misappropriated the trade secrets of any third party in granting the Software License to the Medical Group, (d) it is not currently under investigation or debarred by any state or federal governmental agency for Medicare or Medicaid fraud and that no such proceeding is pending, (e) to the best of its knowledge, none of the Physicians is under sanction by a state or federal governmental agency nor excluded from participating in the Medicare or Medicaid programs, (f) that the ability of the Medical Group to verify if any of its physicians or staff is currently debarred is dependent upon the accuracy of the information contained on the Office of the Inspector General’s list of excluded persons and the representations of each individual such physician and staff person and (g) Hyr Medical has established internal policies and procedures regarding HIPAA compliance.
8. Relationship of the Parties.
8.1 As between the Parties, (a) Hyr Medical is the “licensor”, and the Medical Group is the “licensee”, with respect to Hyr Medical’s grant of the Software License to the Medical Group and (b) Hyr Medical is the Medical Group’s “independent contractor” with respect to Hyr Medical’s provision of the Support Services.
8.2 Each Physician will be Hyr Medical’s independent contractor when such Physician is providing services on behalf of the Medical Group. Hyr Medical will make no clinical decisions for, or on behalf of, any of Physician and will not direct or control any Physician or the clinical services provided by any Physician.
8.3 The Parties expressly acknowledge that no joint venture, partnership or agency relationship exists between Hyr Medical and the Medical Group. Neither Party has the power or authority to bind the other and no Party may assume or create any obligation or responsibility on behalf of the other.
9. Parties’ Further Obligations.
9.1 The Medical Group shall (a) use the Software Product in accordance with the Agreement, (b) promptly report to Hyr Medical any flaws, errors, bugs, defects or other problems in or with the Software Product that it identifies and (c) notify Hyr Medical of any change to the Medical Group’s Contact Information. Until the Agreement is terminated, and for a 2-year period following such termination, the Medical Group (d) may not solicit or induce, or attempt to solicit or induce, any employee or affiliate of Hyr Medical to leave Hyr Medical for any reason whatsoever and (e) may not hire or solicit the services of any such employee or affiliate or Hyr Medical.
9.2 The Medical Group shall (a) require and/or cause each Authorized User (1) to maintain such Authorized User’s Login in confidence and (2) to immediately notify Hyr Medical of any actual or suspected breach or improper use or disclosure of an Authorized User’s Login or of the Software Product and (b) prohibit each Authorized User (1) from sharing such Authorized User’s Login with any other party whatsoever and (2) from authorizing or otherwise allowing any other party to use the Software Product or any part thereof (whether directly or indirectly).
9.3 Upon Hyr Medical’s reasonable request, the Medical Group shall (a) act as a reference in marketing and sales initiatives by Hyr Medical and (b) work with Hyr Medical to issue press releases and participate in media interviews, case- and market-research studies.
9.4 Each Party may publicize that it has entered into the Agreement, provided, however, that, except as required by applicable law or court order, neither Party may (a) disclose the specific terms of the Agreement (including pricing) and/or (b) use the logos or trademarks of the other Party, without the consent of such other Party, which consent may not be unreasonably withheld. For the avoidance of doubt, delivery by either Party of its logo to the other Party shall constitute such delivering Party’s consent to use of such logo by such other Party.
10. Medical Group Indemnification.
10.1 Hyr Medical shall indemnify, defend and hold harmless the Medical Group from and against any liabilities, costs, fees and/or damages that arise out of any Medical Group Claim.
10.2 The Medical Group shall notify Hyr Medical of each Medical Group Claim as soon as the Medical Group is aware of its occurrence and deliver to Hyr Medical any and all non-privileged documents in the possession of, or otherwise known to, the Medical Group and related to the Medical Group Claim. Hyr Medical may control the defense and/or settlement of any Medical Group Claim, provided that, if applicable, Hyr Medical may not settle any Medical Group Claim without obtaining, either prior to such settlement or in connection therewith, the release of the Medical Group from such Medical Group Claim. If the defense and/or settlement of any Medical Group Claim is compromised by the failure of the Medical Group to comply with the provisions of this §10.2, the Medical Group shall be liable, to the extent of such failure, for the expenses, costs and/or damages incurred by the Medical Group.
10.3 Notwithstanding that set forth in §10.2, neither the Medical Group nor any third party may seek indemnification from Hyr Medical for any Medical Group Claim that asserts the Software Product infringes upon the intellectual property rights of a third party if (a) the Medical Group and/or any third party acting on its behalf failed to install or apply, or failed to have installed or applied, any Update or Upgrade and such assertion of infringement would be, or would have been, invalidated or could not have been brought, or would not have been successful, if such Update or Upgrade was installed or applied, (b) the Medical Group and/or any third party acting on its behalf used or uses the Software Product in a manner (1) inconsistent with the provisions of the Agreement and/or (2) contrary to its intended use and/or purpose and/or (c) such assertion of infringement relates solely to Medical Group Data.
11. Hyr Medical Indemnification.
11.1 The Medical Group shall indemnify, defend and hold harmless Hyr Medical from and against any liabilities, costs, fees and/or damages that arise out of any Hyr Medical Claim.
11.2 Hyr Medical shall notify the Medical Group of each Hyr Medical Claim as soon as Hyr Medical is aware of its occurrence and deliver to the Medical Group any and all non-privileged documents in the possession of, or otherwise known to, Hyr Medical and related to the Hyr Medical Claim. The Medical Group may control the defense and/or settlement of any Hyr Medical Claim, provided that, if applicable, the Medical Group may not settle any Hyr Medical Claim without obtaining, either prior to such settlement or in connection therewith, the release of Hyr Medical from such Hyr Medical Claim. If the defense and/or settlement of any Hyr Medical Claim is compromised by the failure of Hyr Medical to comply with the provisions of this §10.2, Hyr Medical shall be liable, to the extent of such failure, for the expenses, costs and/or damages incurred by Hyr Medical.
12. Limitations on Liability; Remedies.
12.1 THE SOFTWARE PRODUCT IS PROVIDED BY HYR MEDICAL ON AN “AS-IS” BASIS. ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED OR CONTRACTUAL OR STATUTORY, ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITATION, HYR MEDICAL NEITHER REPRESENTS AND WARRANTS, NOR COVENANTS, THAT (a) THE OPERATION AND/OR USE OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, (b) THE SOFTWARE PRODUCT WILL PERFORM IN EVERY OPERATING ENVIRONMENT, (c) ALL DEFICIENCIES OR ERRORS IN THE SOFTWARE PRODUCT ARE CAPABLE OF CORRECTION OR (d) THE SOFTWARE PRODUCT MEETS THE REQUIREMENTS OF ANY PARTY WHATSOEVER. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED.
12.2 IN NO EVENT MAY EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE SERVICE FEES PAID BY THE MEDICAL GROUP TO HYR MEDICAL IN THE CALENDAR YEAR IN WHICH THE CLAIM IS BROUGHT. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, NEITHER PARTY MAY BE LIABLE FOR DAMAGES UNLESS IT FAILS TO EXERCISE ORDINARY CARE AND IT SHALL BE DEEMED TO HAVE EXERCISED ORDINARY CARE IF ITS ACTION OR OMISSION IS IN CONFORMITY WITH COMMERCIALLY REASONABLE PRACTICES.
12.3 NEITHER PARTY HERETO MAY BE HELD LIABLE TO THE OTHER OR TO ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO THE AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT OR TORT (WHETHER UNDER A THEORY OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY IS ADVISED OF THE LIKELIHOOD OR POSSIBILITY THEREOF.
12.4 EACH PARTY HERETO ACKNOWLEDGES THAT THE OTHER PARTY HERETO HAS RELIED UPON THE LIMITATIONS ON LIABILITY SET FORTH IN §10 AND THIS §12 AND, BUT FOR THEIR INCLUSION HEREIN, WOULD NOT HAVE ENTERED INTO THE AGREEMENT.
12.5 In the event a Medical Group Claim alleges Hyr Medical made a misrepresentation in clause (d) of §7.2, Hyr Medical shall have the right to terminate the Software License as to that portion, or those portions, of the Software Product contemplated in such Medical Group Claim and (a) procure for the Medical Group the right to use that portion, or those portions, of the Software Product contemplated in such Medical Group Claim and/or (b) provide a non-infringing substitute that would not give rise to a Medical Group Claim, provided, however, that any exercise of such right may not be deemed to limit the applicability of any other limitation on liability set forth in the Agreement.
13.1 Each Party acknowledges that (a) it may have access to, or may be exposed to, directly or indirectly, Confidential Information and (b) all Confidential Information shall remain the exclusive property of the Party disclosing it.
13.2 Each Party covenants (a) not to use Confidential Information of the other Party for any purpose except in furtherance of performing according to these Terms and Conditions, (b) not to not disclose Confidential Information of the other Party to any third party, except as may be necessary to perform according to these Terms and Conditions and (c) except as may otherwise be provided in §5, to return or destroy all Confidential Information of the Party disclosing it upon the termination of these Terms and Conditions or at the request of the other party (provided, however, that either Party may retain a copy of the other Party’s Confidential Information for its own risk management purposes and as may be required by law).
13.3 Notwithstanding that set forth above in this §13, (a) for so long as required by law, each of the Parties shall make available to the other, and to the appropriate governmental authorities, any Confidential Information, books, records and/or other documents that may be required by law to be so made available and (b) Confidential Information may not be deemed to include any information to the extent it (1) is or becomes part of the public domain through no act or omission on the part of the Party receiving it, (2) was possessed by the Party receiving it prior to the Signature Date without an obligation of keeping it confidential, (3) is disclosed to the Party receiving it by a third party having no obligation of confidentiality with respect thereto or (4) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the Party receiving it notifies the Party disclosing it thereof and provides the Party disclosing it a reasonable opportunity to contest or limit such disclosure.
14. Term & Termination.
14.1 The Agreement shall remain in full force and effect from and after the Signature Date and until it is terminated according to this §14.
14.2 Either Party may terminate the Agreement if the other Party materially breaches a covenant, representation or warranty made in the Agreement or materially fails to perform, or comply with, its obligations according to the Agreement, by notifying such other Party of such breach or material failure (as the case may be) and, if such breach is not cured within 30 days following receipt of notice thereof, notifying such other Party no less than 30 days prior to the effective date of such termination. For the avoidance of doubt, the Medical Group’s failure to pay any Service Fee according to §2 shall constitute the Medical Group’s material failure to perform.
14.3 Either Party may immediately terminate the Agreement by notifying such other Party of such termination if such other Party (a) files a petition in bankruptcy, (b) has filed against it a petition in bankruptcy and such petition is not dismissed within 90 days of being so filed, (c) becomes insolvent according to the law of the jurisdiction in which it was formed or (d) makes an assignment, or enters into some other arrangement, for the benefit of its creditors.
14.4 Immediately upon the termination of the Agreement, (a) the Medical Group may have no further right, title or interest in the Software Product or any part thereof, including any license in either of the same, (b) neither Party may use the other Party’s Confidential Information and shall destroy or return, at the sole and absolute discretion of the Party disclosing such Confidential Information, all copies thereof and (c) each Party shall immediately pay to the other Party all amounts that are due and payable hereunder.
14.5 The provisions of §§[1.1, 2.5, 10, 12, 9 and 14.4], the provisions of this §14.5 and, as and where applicable, the provisions of §§15 and 16 shall survive any termination of the Agreement.
15. Defined Terms.
“Agreement” means the Locum Tenens Agreement entered into by and between Hyr Medical and the Medical Group.
“Assignment” means an instance where a Physician, in response to a Post, accepts the Opportunity contemplated in such Post and provides services on behalf of the Medical Group.
“Assignment Start Date” means the date as of which a Physician is to begin an Assignment, which date is determined between the Physician and Medical Group.
“Authorized User” means an individual authorized by the Medical Group to use the Software Product.
“Cause” means a Physician’s demonstrated professional incompetence or any other action that negatively impacts the Medical Group’s patients.
“Confidential Information” means Hyr Medical Confidential Information and Medical Group Confidential Information.
“Contact Information” means (a) with respect to the Medical Group or the information set forth in the Agreement beneath the signature of its authorized representative(s) and (b) with respect to Hyr Medical, the information set forth in the Agreement beneath the signature of its authorized representative.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended.
“Hyr Medical Claim” means a claim for damages resulting from any material inaccuracy or breach of the representations and warranties made by the Medical Group in §7.1.
“Hyr Medical Confidential Information” means (a) information relating to the Agreement that is not generally known to the public or that constitutes a trade secret, (b) information that is owned, developed or otherwise acquired by Hyr Medical, including Hyr Medical’s financial data, business plans, customer information, software, programming, systems and use documentation, technical information, technology, designs, ideas, inventions, data, data formats and files, and all copies and tangible embodiments thereof, (c) the Software Product and (d) any software, software modifications, derivative works, processes, configurations, system referenced data, procedures and other intellectual property rights relating to data processing and information technology developed or held by Hyr Medical in the performance of its obligations according to the Agreement.
“Hyr Medical” means Hyr Medical, Inc., a Delaware corporation.
“Login” means the identification and password that enables an Authorized User to use and access the Software Product.
“Medical Group” means the party with which Hyr Medical entered into the Agreement.
“Medical Group Claim” means a claim for damages resulting from any material inaccuracy or breach of the representations and warranties made by Hyr Medical in §7.2.
“Medical Group Confidential Information” means (a) information relating to the Agreement that is not generally known to the public or that constitutes a trade secret, (b) information that is owned, developed or acquired by the Medical Group, including the Medical Group’s financial data, business plans, customer information, software, programming, systems and use documentation, technical information, technology, designs, ideas, inventions, data, data formats and files, and all copies and tangible embodiments thereof and (c) Medical Group Data.
“Medical Group Data” means all data and media provided to Hyr Medical or otherwise input into or using the Software Product by the Medical Group.
“Party” means either Hyr Medical or the Medical Group.
“PHI” means individually identifiable patient health information, including any of the same that is stored electronically.
“Physician” means an individual using the Software Product to review Posts and who the Medical Group may engage to provide services on its behalf.
“Physician Exclusivity Period” means, with respect to a Physician, a period (a) that starts on the later of (1) the latest date on which such Physician replied to a Post and (2) the latest date on which such Physician provided services on behalf of the Medical Group and (b) that ends on the 2-year anniversary of the applicable date from (1) or (2), above.
“Opportunity” means the chance, as set forth in a Post, for a Physician to provide services on behalf of the Medical Group before it is accepted by a Physician.
“Post” means a complete description of services that the Medical Group desires for a Physician to provide on its behalf.
“Recruitment Fee” means an amount equal to Hyr Medical’s then-current recruitment fee.
“Service Fee” means the amount the Medical Group is obligated to pay to Hyr Medical in respect of each Assignment, including an amount equal to the product of the hours worked by the Physician during such Assignment and Hyr Medical’s then-current cost per hour and any “travel lump sum” (i.e., the lump sum amount paid to the Physician that is based upon the distance between the Physician’s residential zip code and the zip-code of the location at which such Assignment is to be completed) and all other amounts the Medical Group is to pay to such Physician in respect of such Assignment. Also, in the case of expedite Assignments, if the cost of airfare causes the Physician’s actual expenses to exceed the lump sum amount, the Medical Group agrees to reimburse the actual cost of the airfare.
“Signature Date” means the “Signature Date” set forth in the Agreement.
“Software License” means a limited, nonexclusive and nontransferable license for the Medical Group to use the Software Product in accordance with the Agreement.
“Software Product” means Hyr Medical’s physician locums tenens software platform, including any third-party software embedded therein, any Updates and any Upgrades.
“Standard Terms” means these Standard Terms & Conditions.
“Support Services” means the technical support services provided via email submission to firstname.lastname@example.org.
“Update” means any update, feature release (e.g., 2.0 to 2.1), patch release (e.g., 2.0.1 to 2.0.2), maintenance release, bug fix or modified form of the Software Product that performs comparable or improved functionality and that is not an Upgrade.
“Upgrade” means any new version or major release (e.g., 2.0 to 3.0) of the Software Product, including any changes to the Software Product that (a) substantially increase the speed, efficiency or ease of use of the Software Product or (b) add additional capabilities to, or otherwise improve the functions of, the Software Product.
16. General Provisions.
16.1 Each Party shall comply in all material respects with all applicable law in performing its obligations according to the Agreement.
16.2 Any notice required or permitted to be delivered to either of the Parties according to the Agreement shall be (a) delivered according to such Party’s Contact Information and (b) deemed effective (1) upon receipt, when delivered personally or by courier, (2) the day delivered, if delivered by a reputable overnight delivery service, (3) upon delivery, if delivered via email and delivery is confirmed or (4) 48 hours after being deposited for delivery via certified or registered mail with postage prepaid. Notice of any change to the Contact Information shall be given according to this §16.2.
16.3 The Agreement constitutes the entire agreement between the Parties as to the subject matter hereof and supersedes all prior documents, negotiations and drafts of such parties with respect to such subject matter, whether written or verbal. No provision of the Agreement may be construed against either Party by reason of the drafting or preparation thereof.
16.4 Any term of the Agreement may be amended, waived, terminated or discharged only with the consent of both of the Parties. The failure of either Party to insist upon the performance of any of the terms or conditions contained in the Agreement, and the failure of either Party, to exercise any right hereunder, may not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such rights.
16.5 If any provision of the Agreement is held to be unenforceable, the Parties shall renegotiate each such provision in good faith in order to maintain the economic position enjoyed by each Party prior to such holding with respect to each such provision rendered unenforceable. If the Parties cannot agree upon an enforceable replacement for such provision, then (a) such provision shall be excluded from the Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) thereafter, the Agreement shall be enforceable in accordance with its terms.
16.6 Neither Party may assign the Agreement, in whole or in part, by operation of law or otherwise, without the other Party’s consent, such consent to not be unreasonably withheld, provided, however, that either Party may assign the Agreement without the other Party’s consent if such assignment is made as part of the purchase of all or substantially all of that Party’s business or as part of a merger, consolidation or reorganization there. Any attempt to assign the Agreement other than in accordance with this §16.6 shall be null and void and of no legal force or effect. The Agreement shall be binding upon and shall inure to the benefit of the Parties’ successors and permitted assigns.
16.7 Neither Party may be held liable for its failure to perform hereunder or for any loss or damage due to causes beyond its reasonable control, including governmental requirements, inability to obtain required export licenses, work stoppages, fire, civil disobedience, embargo, war, terrorism, riots, rebellions, earthquakes, strikes, floods, water and the elements, inability to secure equipment, raw materials or transport or similar occurrences.
16.8 Unless the context clearly requires otherwise, (a) the singular shall be deemed to include the plural and vice versa, (b) reference to any agreement, document or instrument shall be deemed to refer to such agreement, document or instrument as may be amended or modified and in effect from time to time, (c) “hereunder,” “hereof,” “hereto” and words similar thereto shall be deemed references to the Agreement as a whole and not to any particular provision hereof, (d) the words “include” and “including” shall be deemed to mean “without limitation” and shall be interpreted not to limit the generality of any description preceding such term, (e) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding” and (f) any reference to a “§” or “§§” in the Agreement shall be construed as a reference to a section of the Agreement.
16.9 The Agreement may be executed in 2 or more counterparts (including by electronic transmission), each of which shall be deemed an original and all of which together shall constitute a single instrument.
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