Terms and Conditions
ZOCDOC PROVIDER INVITE PROGRAM AGREEMENT
This Zocdoc Provider Invite Program Agreement (this “Agreement”) is made by and between Zocdoc, Inc., a Delaware corporation located at 568 Broadway, 9th Fl, New York, NY 10012 (“Zocdoc”), and the individual or entity (“Partner”) participating in the Zocdoc Provider Invite Program (“Program”). This Agreement is entered into and effective as of the date agreed to by Partner (the “Effective Date”) on Zocdoc.com.
BY CLICKING THE CHECKBOX OR OTHERWISE AGREEING TO THIS AGREEMENT, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND ARE DULY AUTHORIZED TO ENTER INTO AND BIND PARTNER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ACKNOWLEDGE AND AGREE THAT ALL SUCH USE BY PARTNER IS SUBJECT TO SUCH TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS OR ARE NOT AUTHORIZED TO BIND PARTNER, THEN DO NOT CLICK THE CHECKBOX AND PARTNER IS NOT PERMITTED TO PARTICIPATE IN THE PROGRAM.
1. The Program
The purpose of the Program is to reward existing customers of Zocdoc who invite other healthcare practices (“Lead”) to enroll and activate onto the Zocdoc product (“Product”) and support Zocdoc’s sales efforts with regard to such Leads. A “Lead” means any medical practice or series of affiliated practices that (a) activates the Product within 90 days of the initial invite by Partner, and (b) identifies itself as having been invited to Zocdoc by Partner prior to the time that Zocdoc completes the activation of the new Product. Notwithstanding the foregoing, the following cannot be a Lead: (i) any current or former Zocdoc customer who was on the Product within six (6) months prior to the invite, (ii) any medical practice that has engaged in conversations with a Zocdoc representative about the Product within six (6) months prior to the invite, (iii) any medical practice that is in under common ownership or otherwise affiliated with Partner; or (iv) any medical practice that was invited by another entity prior to being invited by Partner.
2. Partner Warranties
As a condition to participate in the Program, Partner represents, warrants, and covenants as follows:
a. it will conduct business and promote Zocdoc in a manner which reflects favorably at all times on the products, services, goodwill and reputation of Zocdoc;
b. it will comply at all times with any and all applicable laws, rules, regulations and guidelines including but not limited to FTC guidelines, the Telephone Consumer Protection Act, and the CAN-SPAM Act in its participation in the Program;
c. it will not use Zocdoc’s name or logo, or any other Zocdoc service mark (collectively “Zocdoc Marks”) in any manner not expressly authorized by Zocdoc;
d. it will assist Zocdoc’s sales efforts with regard to each Lead as reasonably requested by Zocdoc (e.g. by providing accurate contact information, serving as a client reference, etc.);
e. it will avoid deceptive, misleading, or unethical representations that could be detrimental to Zocdoc or the Services, including, but not limited to, distributing unsolicited marketing materials, or engaging in any activity that violates Zocdoc’s Acceptable Use Policy (which is hereby incorporated by reference into this Agreement); and
f. it will not publicize the availability of the Program to any healthcare providers with which it does not have a pre-existing relationship with.
3. Proprietary Rights; Restrictions
Ownership. Zocdoc and its licensors retain all ownership, right, title and interest in and to Zocdoc Marks, all data and information processed by Zocdoc in connection with the Program, and all other proprietary rights therein or collected in connection therewith (collectively, “Zocdoc Materials”). Except as specifically stated herein, nothing in this Agreement shall be construed to grant to Partner any copyright or other proprietary right or interest in or to the Zocdoc Materials. Feedback. Partner may choose to provide Zocdoc with comments concerning the Program or the Product (collectively, “Feedback”). Partner agrees that Feedback is the exclusive property of Zocdoc. Zocdoc will be free to copy, modify, create derivative works of, publicly display, disclose, distribute, license and sublicense, incorporate and otherwise use the Feedback and derivative works thereto, for any and all commercial and non-commercial purposes with no obligation of any kind to Partner.
4. Payment
During the Term, Partner will earn a gift, credit, or other promotion as specified in the enrollment page or promotional communication (the “Payment”) for each Lead that activates on the Product, subject to the limitations set forth in the Agreement. Unless otherwise agreed upon in writing, Partner acknowledges and agrees that where the Payment is an invoice credit, it is limited to those invoices that occur 90 days from the Lead’s order form start date with the Product. Any remainder of the Payment that is not fulfilled within 90 days from the Lead’s order form start date will be considered forfeit and the Payment completed. The Payment is limited to one Payment for a Lead that activates on the Product. Where applicable, Zocdoc shall issue Payments on a monthly basis to the Partner account correlated to the Lead submission and assists with the applicable Lead. Payments will be calculated solely based on Zocdoc’s accounting, and shall not vary based on the size of the Lead account. Zocdoc has the right to audit all Payments, and withhold or adjust Payments to exclude any amounts, or invoice for Payments already issued, if Zocdoc reasonably determines to arise from invalid activity, which includes (but is not limited to) any participating in the Program that is fraudulent, invalid, improperly automated, duplicative, or otherwise does not comply with the terms of this Agreement. Any taxes that may be due in connection with receipt of the Payment are the sole responsibility of the Partner.
5. Mutual Warranties
Each party represents and warrants to the other that: (i) it has full corporate power and authority to execute, deliver and perform this Agreement; and (ii) this Agreement has been duly and validly executed and constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
6. Term; Termination
a. Term. The term of this Agreement shall commence on the Effective Date and and continue in full force and effect until terminated in accordance with this Agreement.
b. Termination. Either party may terminate this Agreement at any time, without cause or penalty, upon notice to the other party. The Agreement will automatically terminate if Partner ceases to be a customer of Zocdoc.
c. Survival. The following provisions shall survive termination of this Agreement: Sections 3, 5, and 7-9.
7. Limitation of Liability
IN NO EVENT WILL ZOCDOC BE LIABLE REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES; (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL; OR (C) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE AMOUNT PAID OR PAYABLE HEREUNDER DURING THE PREVIOUS SIX (6) MONTHS, IN EACH CASE EVEN IF ZOCDOC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Indemnification
a. Partner Indemnity. Partner shall indemnify, defend, and hold Zocdoc and its employees, agents and other related parties harmless for any third party claims, liabilities, damages, judgments, or other losses, including legal fees and fines and penalties incurred by Zocdoc, arising out of or relating to (i) the content and/or activities on Partner’s website; (ii) Partner’s participation in the Program in violation of any law, rule, regulation or guideline; (iii) Partner’s breach of this Agreement; or (iv) Partner’s negligence or willful misconduct.
b. Procedures. Any claim for indemnification under this Section 8 requires that (i) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith; and (ii) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
9. Miscellaneous
a. Amendments; Changes. Zocdoc may modify the terms of this Agreement or any documents linked to herein at any time by posting a new Agreement on its website or otherwise making reasonable efforts to communicate such change to you. If Partner does not agree to any modified terms, Partner’s sole remedy shall be to stop participating in the Program.
b. Relationship of Parties. The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Partner will not make any statement, whether on Partner’s Website or otherwise, that reasonably would contradict anything in this Section 9(b).
c. Notices. Any notices required or permitted hereunder shall be given to the appropriate party by confirmed electronic means, or in writing at the address specified above or at such other address as the party shall specify in writing. Such notice shall be deemed given upon being sent by electronic means, or, if in writing, upon personal delivery, or sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing.
d. Public Announcements. Each party must obtain the prior written consent of the other party before publishing or releasing any press release, advertising, marketing materials or other public statement concerning the Program, the Product, the Agreement, or the relationship between the parties.
e. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. Notwithstanding the foregoing, Zocdoc may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise) without Partner’s consent. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
f. Governing Law. This Agreement shall be governed by and construed under the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof. Exclusive jurisdiction and venue for actions related to this Agreement will be the state and federal courts located in New York County, New York, and both parties consent to the jurisdiction of such courts with respect to any such actions. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and attorneys’ fees.
g. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.
h. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all proposals, letters of intent, memoranda of understanding, or discussions, whether written or oral, relating to the subject matter of this Agreement and all past dealing or industry custom. Headings and captions used in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement.
i. Waiver/Modification. No provision of, or right or privilege under, this Agreement shall be deemed to have been waived or modified by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing duly executed by both parties making specific reference to this Agreement.
j. Counterparts. This Agreement may be executed in one or more counterparts, all of which constitute the same instrument.