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Employer Program Participation Agreement
Last updated: July, 17 2023.HEALTHdrum.com LLC (“HEALTHdrum,” “we,” “us,” or “our”) is a marketplace platform that helps consumers connect with providers to buy cost-transparent healthcare services. HEALTHdrum owns and operates the web application titled HEALTHdrum (the “App”) and the website www.HEALTHdrum.com (“Site,” and with the App and all related apps and websites including without limitation all services, content, features and functionality available therein collectively, the “Platform”) and provides it to you, the user of the Platform (“you” or “your”), for your use. By using the Platform, if you are an Employer (as defined below as “Employer”) you agree to, and are bound by, the following Employer Program Participation Agreement. By using the Platform, all other visitors agree to and are bound by the terms set out at:https://healthdrum.com/terms (together, the “Terms”).HEALTHdrum provides a program pursuant to which healthcare consumers may use HEALTHdrum’s proprietary technology application and platform (the “Platform”) to search, compare the cost of and schedule the provision of medical care in a manner intended to achieve savings in the cost of medical care and/or priority access for the healthcare consumer (as further defined below, the “Program”).Employer desires to make the Program available to Employer’s employees and their dependents.HEALTHdrum desires to make the Program available to Employer's employees and their dependents, pursuant to the terms of this Agreement.In exchange for the promises made in this Agreement and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
  1. THE PROGRAM
    1. HEALTHdrum will provide to Employer’s employees and their dependents who, in each case, are covered by and eligible under the Program (each a “Member”) access to the Platform.
    2. HEALTHdrum hereby authorizes Employer to make the Program available to Members on the terms and conditions set forth in this Agreement. In order to receive access to the Program, Employer acknowledges and agrees that each Member must access and agree to HEATLHdrum’s terms and conditions for Members for the Platform, which HEALTHdrum may update from time to time.
    3. HEALTHdrum will attend Employer related events and meetings upon Employer’s reasonable request, at HEALTHdrum’s standard rates for such services and at Employer’s expense; provided that if Employer reasonably and timely requests HEALTHdrum to attend aimed at increasing Member participation in the Program, such as enrollment meetings, health fairs, and other similar activities, HEALTHdrum will not charge additional fees to attend unless agreed to by the Parties. If Employer requests HEALTHdrum to prepare any non-standard reports that require development or programming work, Employer will pay HEALTHdrum for such services at HEALTHdrum’s then current time and materials rates (currently One Hundred Dollars ($100) per hour).
  2. DUTIES OF EMPLOYER
    Employer will: (i) permit Members to be covered by the Program; (ii) cooperate with HEALTHdrum in HEALTHdrum promoting the Program to all Members, using marketing materials based on the HEALTHdrum template provided pursuant to Section 3; (iii) cooperate with HEALTHdrum as reasonably requested by HEALTHdrum from time to time in HEALTHdrum’s implementation of the Program; (iv) provide HEALTHdrum with membership eligibility files for each Member in a format approved by HEALTHdrum; and (v) provide HEALTHdrum with prompt notice of each new or additional Member and of each person who ceases to be a Member, in a format approved by HEALTHdrum. Employer will use its reasonable best efforts to ensure that each Member cooperates and communicates with HEALTHdrum and its personnel about their participation in the Program.
  3. COMMUNICATION MATERIALS
    HEALTHdrum will provide Employer with a template description of the Program for use to communicate the Program's services to the Members. Employer must obtain HEALTHdrum's prior written approval of any modifications to such description, and of any other materials and communications (regardless of form or media) that Employer intends to use or distribute to describe the Program.
  4. PROGRAM FEES
    The fees payable for the Program are $8/employee/month. The amounts payable by Employer under this Agreement do not include any applicable federal, state or local sales, use, excise, value-added, personal property or other similar taxes (collectively “Taxes”). Employer will be solely responsible for any and all Taxes. Each Party will each bear sole responsibility for all federal, state or local taxes or assessments resulting from its respective net income.
  5. PAYMENT TERMS
    1. HEALTHdrum will invoice Employer for Fees and any other amounts due under this Agreement. Payment will be due upon Employer’s receipt of such invoice.
    2. If Employer fails to timely pay to HEALTHdrum any amount due under this Agreement, Employer will pay to HEALTHdrum all costs of collection, including, without limitation, attorneys’ fees, and interest at the maximum rate allowed by law.
    3. Without limiting HEALTHdrum’s other remedies under this Agreement or at law or in equity, if Employer fails to make any payment due to HEALTHdrum within 60 days after it becomes due, HEALTHdrum may suspend operation of the Program and Member participation in the Program until Employer has paid all overdue amounts to HEALTHdrum.
  6. TERM
    The term of this Agreement commences on the Effective Date of account creation and continues for a period of one (1) year from the Effective Date (the “Initial Term”). Thereafter, the term of this Agreement will automatically renew for successive one (1) year terms (each, a “Renewal Term”), until terminated in accordance with Section 7. “Term” means the Initial Term and the Renewal Term(s).
  7. TERMINATION
    1. Either Party may terminate this Agreement effective as of the end of the Initial Term or any Renewal Term by providing the other Party not less than 60 days' prior written notice of termination.
    2. A Party may terminate this Agreement immediately in the event: (i) the other Party commits a material breach of this Agreement, and such breach is not cured within 30 days following receipt of written notice thereof to the breaching Party, or (ii) the other Party files or is subject to any voluntary or involuntary bankruptcy, receivership, assignment for the benefit of creditors or similar proceeding.
    3. The following Sections of this Agreement will survive any expiration or termination of this Agreement: 4, 5, 7.C., 8, 9, 10, 11, 15 and 20. Termination of this Agreement shall not affect any agreement entered into directly by HEALTHdrum and any applicable Member.
  8. WAIVERS, INDEMNIFICATION AND INSURANCE
    1. Employer (for itself and on behalf of all Members) acknowledges that HEALTHdrum does not provide, direct, or control medical care or treatment, that the Program does not include the diagnosis or treatment of a Member, that HEALTHdrum is not involved in any medical recommendations, advice or decisions, and that HEALTHdrum is not serving in any fiduciary capacity with respect to the Program, including as such term is defined in the Employee Retirement Income Security Act of 1974, as amended. Employer (for itself and on behalf of all Members) agrees that HEALTHdrum is not responsible for medical outcomes. All decisions regarding medical care or treatment and the results thereof are solely within the control of the Member and the Member’s physician and other healthcare providers. Execution of this Agreement and performance of obligations hereunder will not constitute an undertaking by HEALTHdrum to render medical care or treatment.
    2. THE PROGRAM AND ALL SERVICES PROVIDED BY HEALTHDRUM ARE PROVIDED “AS IS”AND EXCEPT FOR ANY WARRANTIES THAT MAY NOT BE DISCLAIMED AS A MATTER OF APPLICABLE LAW, HEALTHDRUM DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
    3. Employer will indemnify, defend, and hold harmless HEALTHdrum and its officers, directors, members, employees and agents (“Indemnitees”), upon written demand by HEALTHdrum, from and against all claims brought by a third party (each, a “Claim”) and all related costs, in each case to the extent arising out of or related to: (i) Employer’s gross negligence, willful misconduct, criminal conduct or fraud, and (ii) any matter related to the Program, including but not limited to Program operations, matters involving eligibility to receive services under the Program, services covered, due or rendered under a Program or otherwise, the administration of claims under or related to the Program, and the reimbursement or payment of healthcare claims and other payments to healthcare providers.
    4. Indemnitees seeking indemnification hereunder will promptly notify Employer in writing of any Claim and cooperate with the Employer at Employer’s sole cost and expense. Employer will immediately take control of the defense and investigation of such Claim and will employ counsel of its choice to handle and defend the same, at Employer’s sole cost and expense. Employer will not settle any Claim in a manner that adversely affects the rights of the Indemnitee without the Indemnitee’s prior written consent, which will not be unreasonably withheld or delayed. Indemnitee’s failure to perform any obligations under this Section 8.D. will not relieve Employer of its obligations under this Section 8.D. except to the extent that Employer can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense.
    5. IN NO EVENT WILL HEALTHDRUM BE LIABLE TO EMPLOYER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, DATA, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT (INCLUDING THE BREACH OF ANY BUSINESS ASSOCIATE AGREEMENT), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT HEALTHDRUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    6. IN NO EVENT WILL HEALTHDRUM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT (INCLUDING ANY BUSINESS ASSOCIATE AGREEMENT), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO HEALTHDRUM PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
    7. Each Party will maintain such insurance coverage as is reasonably necessary to support its respective obligations under this Agreement, which will be at least a commercially reasonable general liability policy. Upon written request, each Party will provide evidence of such coverage to the other Party.
  9. OWNERSHIP OF INTELLECTUAL PROPERTY
    1. Employer acknowledges and agrees that the Program and all materials relating to the Program that are developed by or on behalf of HEALTHdrum or provided to Employer by HEALTHdrum (including, without limitation, the communications materials referred to in Section 4 above), and all trade names, service marks, trademarks and logos that are used by HEALTHdrum (including but not limited to the “HEALTHdrum” mark), and such other trade names, trademarks and logos as hereinafter may be designated by HEALTHdrum in connection with its business (the “HEALTHdrum Marks”) are the unique intellectual property of HEALTHdrum (collectively, the “Intellectual Property”). Employer will not duplicate the Program or Program materials in any format that would, in whole or in part, infringe upon the Intellectual Property, and will not use or disclose the Intellectual Property in any manner other than pursuant to this Agreement. Upon expiration or termination of this Agreement, Employer will return to HEALTHdrum all of the Intellectual Property provided to or in the possession or control of Employer.
    2. Employer will not directly or indirectly violate or attempt to violate the security of HEALTHdrum's Platform, web sites and online services, including, without limitation, accessing data not intended for Employer, attempting to probe, scan or test the vulnerability of any system or network or to breach security or authentication measures, scan or testing the performance of any system or network, or attempt to interfere with service to any user, host or network.
    3. HEALTHdrum hereby grants to Employer a limited, non-exclusive, non-transferable license to use the HEALTHdrum Marks during the term of this Agreement for purposes of promoting the Program in the manner described in the materials provided by HEALTHdrum pursuant to Section 3 or in any other manner reasonably designed to support the Program, subject to first obtaining HEALTHdrum’s prior written approval for each such use. All such use and any related goodwill will accrue for the exclusive benefit of HEALTHdrum.
    4. Employer grants to HEALTHdrum a limited, non-exclusive, non-transferable license to use Employer’s trademarks during the term of this Agreement for purposes of promoting and operating the Program. All such use and any related goodwill will accrue for the exclusive benefit of Employer.
    5. Employer also grants to HEALTHdrum the right to use Employer's trade name, trademark, service mark, or symbol in HEALTHdrum advertising, publicity or other promotional endeavors, to indicate that Employer is a customer of HEALTHdrum.
  10. NON-DISCLOSURE OBLIGATIONS
    1. For purposes of this Agreement, “Disclosing Party” will mean the Party that discloses or makes available any Confidential Information (defined below) to the other Party, and “Receiving Party” will mean the Party that receives any Confidential Information from the other Party to this Agreement.
    2. For the purposes of this Agreement, “Confidential Information” includes the terms of this Agreement and any other information which should reasonably be deemed confidential by the Receiving Party. Each Party’s respective Confidential Information will remain its sole and exclusive property. Confidential Information will not include any information that: (i) at the time of disclosure or subsequent to the disclosure was or becomes part of the public domain, except through direct or indirect disclosure by the Receiving Party in breach of this Section 10; (ii) was in the Receiving Party’s possession free of any obligation of confidence at the time of disclosure by or on behalf of the Disclosing Party and was not otherwise acquired, directly or indirectly from the Disclosing Party; or (iii) was developed independently by the receiving Party without use of the Disclosing Party’s Confidential Information.
    3. No Receiving Party will make any use of any of a Disclosing party’s Confidential Information, except to perform its obligations under this Agreement.
    4. Each Receiving Party will use commercially reasonable efforts to prevent unauthorized use or disclosure of the Confidential Information of the Disclosing Party. Each Party may disclose Confidential Information to only its employees (and in HEALTHdrum’s case, any subcontractors through which it is providing the Program) who have a need to know the Confidential Information of the Disclosing Party. Each Party will cause its employees to comply with this Section 10. No Receiving Party will otherwise disclose the Disclosing Party’s Confidential Information to a third party without the prior written consent of the other Party.
    5. Notwithstanding the foregoing, Confidential Information may be disclosed to the extent required by applicable law, provided the Receiving Party gives the Disclosing Party prompt written notice of such required disclosure in order to enable the Disclosing Party to obtain an appropriate protective order, if it so desires.
    6. The Receiving Party will return and deliver to the Disclosing Party all Confidential Information and all records, notes and other written, printed or tangible materials reflecting the Confidential Information immediately on the written request of the Disclosing Party.
  11. COMPLIANCE WITH LAWS
    1. Each Party will perform its obligations under this Agreement in a manner that complies with all laws and regulations applicable to such Party.
    2. With respect to the Program, each party will comply with all applicable law relating to the privacy and security of personal information.
  12. ENTIRE AGREEMENT
    1. This Agreement (including any attachments hereto) constitutes the entire agreement by and between HEALTHdrum and Employer relating to its subject matter, and any representation, warranty, covenant, understanding or agreement not contained in this Agreement will be of no force or effect. This Agreement supersedes all prior proposals, discussions, writings, and agreements between the Parties relating to the subject matter hereof.
    2. If any provision of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability will not invalidate or render unenforceable the entire Agreement, but rather this Agreement will be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the Parties will be construed and enforced accordingly.
    3. This Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each Party. No waiver by any Party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  13. RELATIONSHIP OF THE PARTIES
    The Parties are independent contractors and neither party is authorized to assume or create any obligations or liabilities, express or implied, on behalf of or in the name of the other Party. The employees, agents, representatives, providers, methods, facilities and equipment of a Party will at all times be under the exclusive direction and control of that Party.
  14. NOTICES
    Any notice required by this Agreement must be given by certified mail, return receipt requested, or overnight courier to the address of the other Party set forth below its signature to this Agreement or to such other address as specified in a written notice by one Party to the other Party in accordance with this Section 14. Notice will be deemed to be received three days after deposit if given by certified mail, return receipt requested, and one day after deposit if given by overnight courier.
  15. EQUITABLE RELIEF
    Each Party acknowledges and agrees that any breach or threatened breach of Section 9.A., 9.B. or 10 of this Agreement will cause irreparable harm to the other Party, and that monetary damages will not be a sufficient remedy. Accordingly, the other Party will be entitled to an injunction or other equitable remedy respecting such breach or threatened breach. Such right is in addition to the remedies otherwise available to such Party at law or in equity.
  16. GOVERNING LAW
    This Agreement will be governed by the law of the State of Florida, without giving effect to any conflict of laws provisions of any jurisdiction. Venue for all actions, relating in any manner to this Agreement, will be exclusively held in a federal or state court of competent jurisdiction located in Broward County, Florida.
  17. CHANGE IN LAW
    In the event of change in or adoption of: (i) federal or state law; (ii) state standards, rules or procedures; (iii) case law; and/or (iv) regulations or general instructions, where the interpretation of any of the foregoing appear to either Party to be reasonably likely to materially and adversely affect the Program or compensation due under this Agreement or which will make any portion of this Agreement unlawful, the Parties will immediately enter into good faith negotiations regarding the need for and terms of a new or modified arrangement and the basis for compensation for the Program. Any such new or modified arrangement must comply with the relevant development, change, or adoption and must approximate as closely as reasonably possible the economic position of the Parties performing under this Agreement prior to the change.
  18. MISCELLANEOUS
    1. This Agreement is deemed to have been prepared jointly by the Parties hereto, and any uncertainty or ambiguity herein will not be interpreted against either Party, but will be interpreted according to the application of the rules of interpretation for arm's length agreements. The headings in this Agreement are for reference only and will not affect the interpretation of this Agreement.
    2. The obligations of a Party under this Agreement will be suspended for the duration of any force majeure event applicable to that Party. The term “force majeure” means any cause not reasonably within the control of the Party claiming suspension, including without limitation, (i) acts of God; (ii) flood, fire, earthquake, pandemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances, or the unavailability of third-party services; and (viii) telecommunication breakdowns, power outages or shortages, or inability or delay in obtaining supplies of adequate or suitable materials. The party claiming suspension under this Section 18.B. will take reasonable steps to resume performance as soon as possible without incurring unreasonably excessive costs.
    3. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, including by operation of law, change of control, assignment or otherwise, without the prior written consent of the other Party; provided, that, upon prior written notice to the other Party, either Party may transfer or assign this Agreement to a successor of all or substantially all of the business or assets of such party by operation of law, change of control, or acquisition. No assignment or transfer will relieve the assigning or transferring party of any of its obligations under this Agreement. Any attempted assignment, transfer, or other conveyance in violation of this Section 18.C. will be null and void. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective permitted successors and assigns.
    4. This Agreement is for the sole benefit of the Parties and their respective permitted successors and assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement. For clarity, no Member is a third party beneficiary of this Agreement.
    5. This Agreement may be executed in any number of counterparts, all of which will constitute one and the same instrument, and each Party hereto may execute this Agreement by signing one or more counterpart and will not affect the construction of this Agreement. Each signatory hereto represents that they have full authority to sign this Agreement on behalf of their respective organization and to bind and obligate such organization to the terms hereof.
  19. How to Contact Us
    If you have any questions regarding the Platform or these Terms, please contact us at:HEALTHdrum 6413 Congress Ave Suite 130 Boca Raton, FL 33487[email protected]