Dental Whale Services Agreement Terms and Conditions
Services. Dental Whale, LLC, (“Dental Whale”) directly or through an affiliate, subsidiary, or designee will provide to the Practice the services or products selected by the Practice (the “Services”) on applicable Services Agreement (the “Services Agreement”), which is incorporated herein by reference. Dental Whale may change the Services offered (whether adding additional Services or cancelling Services) at any time upon delivery of a revised Services Agreement. The Practice, may, but shall not be required to, add additional or any new Services during the Term of the Agreement.
Term and Termination. The Term of the Services Agreement shall begin on the date of execution by the Practice and shall be a month to month term. The Practice shall provide all necessary and required information to Dental Whale, its affiliate, subsidiary, or designee as required to provide the Services, and the Services shall commence within seven (7) business days of receipt of the required information. Unless otherwise terminated as provided in these Terms and Conditions or the Services Agreement contracts will automatically renew on a month-to-month basis. The initial Term and all renewal terms are referred to herein as the “Term”. Either Party may terminate the Service Agreement for any or no reason by providing 30 days prior written notice to the other Party. Dental Whale may also terminate the Services Agreement and immediately cease providing all Services to the Practice, without notice, if the Practice fails to pay any amounts due under the Services Agreement within ten (10) days of the due date.
Service Fees. In consideration for Dental Whale’s Services, Practice will pay Dental Whale, or its designees, the amounts corresponding to the Practice’s elections of Services on the Services Agreement.
Third Party Vendor Agreements. The Practice may be required to enter into third party vendor agreements with Dental Whale vendors. Any such contract does not change or amend these Terms and Conditions or the Services Agreement. The Practice should not pay any service fees to any vendor unless specifically noted and agreed to by the Parties in writing.
Electronic Billing and Payment of the Monthly Fee via Recurring Credit Card. Practice shall provide, and Dental Whale shall maintain on file, a valid credit card and accompanying authorization for recurring use. Dental Whale will automatically charge the appropriate monthly (or annual) fee to the credit card and shall provide Practice with a receipt for the charge. The Practice will be charged interest on amounts past due at the rate of fifteen percent (15%) per annum or the maximum interest rate permitted by law, whichever is less.
Independent Contractor Status. Notwithstanding any provision contained herein or in the Services Agreement to the contrary, the Practice and Breakaway each understand and agree that the Parties hereto are independent contractors and that therefore neither the Practice nor Dental Whale, its affiliate, subsidiary, or designee is an employee, partner, joint venturer, or agent of the other. Neither Party shall have the right to make any promises, warranties or representations, or to assume or create any obligations, on behalf of the other Party.
INDEMNITY AND LIMITATION OF LIABILITY. THE PRACTICE AGREES TO INDEMNIFY, DEFEND AND HOLD DENTAL WHALE, AND ITS AFFLIATES, OFFICERS, DIRECTORS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY CLAIMS ASSERTED BY ANY THIRD PARTIES AGAINST DENTAL WHALE AND ITS AFFILIATES ARISING FROM DENTAL WHALE’S RELATIONSHIP WITH THE PRACTICE PURSUANT TO THE SERVICES AGREEMENT. THE PRACTICE AGREES TO FURTHER INDEMNIFY, DEFEND AND HOLD HARMLESS DENTAL WHALE, AND ITS AFFLIATES, OFFICERS, DIRECTORS, AND EMPLOYEES FROM ANY AND ALL LIABILITY, LOSS, DAMAGE, CLAIM OR EXPENSE OF ANY KIND, INCLUDING COSTS AND ATTORNEYS’ FEES WHICH RESULT FROM THE ACTS OR OMISSIONS BY THE PRACTICE, ITS AGENTS OR EMPLOYEES, REGARDING THE DUTIES AND OBLIGATIONS OF THE PRACTICE UNDER THE SERVICES AGREEMENT OR THESE TERMS AND CONDITIONS. DENTAL WHALE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AGREEMENT OR THESE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR REVENUES. IN NO EVENT SHALL DAMAGES FOR EITHER PARTY EXCEED THE VALUE OF THE TERM OF THE SERVICES AGREEMENT.
Effect of Expiration and Termination; Survival. Notwithstanding the expiration or termination of the Services Agreement, Section 3 (as it relates to unpaid Service Fees), 7 (Indemnity, Release and Waiver of Liability), 8 (Survival), 10 (Governing Law; Venue), 16 (Attorneys’ Fees), 18 (HIPAA Compliance), 19 (No Referral Arrangements), 21 (Warranties,22 (Access to Records, if applicable), and 23 (Jury Trial) will survive.
Conformance with Law. Each Party shall carry out all activities undertaken by it pursuant to the Services Agreement or these Terms and Conditions in conformance with all applicable federal, state, and local laws, rules, and regulations.
Governing Law, Venue. The Services Agreement, these Terms and Conditions and all actions arising, in whole or in part, under or in connection with the Services Agreement or these Terms and Conditions shall be governed by and construed in accordance with the domestic substantive laws of the State of Florida, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. The Parties hereby agree that venue for any and all disputes arising from or relating to the Services Agreement or these Terms and Conditions shall be in the state or federal court of competent jurisdiction located in Broward County, Florida, and each of the Parties hereby consent to the exclusive jurisdiction of such courts.
Entire Agreement; No Oral Modification. The Services Agreement and these Terms and Conditions constitute the entire final agreement between the Parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements between the Parties hereto, both oral and written, concerning the subject matter hereof. Except as provided in Section 1 for the amendment of Services to be provided, the Services Agreement and these Terms and Conditions may not be amended or modified except by a writing signed by all of the Parties hereto.
Assignment. Dental Whale may transfer and assign the Services Agreement and these Terms and Conditions without the prior consent of the Practice. The Practice shall not assign the Services Agreement or these Terms and Conditions without Dental Whale’s prior written consent. The term “assign” as used in this Section 12 shall include without limitation, any dissolution, merger, consolidation or other reorganization of a Party; any sale of all or substantially all of the assets of a Party; any issuance, sale, gift, transfer or redemption of any equity ownership of a Party or other interest in a Party (whether voluntary, involuntary or by operation of law, or any combination of the foregoing) of any of the direct or indirect power to affect the management or policies of a Party; or any direct or indirect change in fifty percent (50%) or more of the ownership interest of the Practice.
Severability. If any provision of the Services Agreement or these Terms and Conditions shall be held to be invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision and shall not in any way affect or render invalid or unenforceable any other provision of the Services Agreement and these Terms and Conditions, and the Services Agreement and these Terms and Conditions shall be carried out as if such invalid or unenforceable provision were not contained herein. It is the intention of the Parties that if any such provision is held to be illegal, invalid or unenforceable, there will be added in lieu thereof a provision as similar in terms to such provision as possible and be legal, valid and enforceable.
Waiver. The waiver by either Party of any breach of any provision of the Services Agreement and these Terms and Conditions shall not be construed as a waiver of any subsequent breach of the same or other provision.
Further Action. The Parties shall execute and deliver all documents, provide all information and take or refrain from all such action as may be necessary or appropriate to carry out the stated purposes of the Services Agreement and these Terms and Conditions.
Attorneys’ Fees. If any litigation arises as a result of the terms, conditions or provisions of the Services Agreement or these Terms and Conditions, the prevailing Party shall be entitled to recover reasonable attorneys’ fees at all pre-trial, trial and appellate levels, as well as all costs and expenses. In addition, the prevailing Party shall be entitled to recover reasonable attorney’s fees and costs incurred in enforcing any judgment arising from a suit under the Services Agreement or these Terms and Conditions. This post-judgment attorney’s fees and costs provision shall be severable from the other provisions of these Terms and Conditions and shall survive any judgment on such suit and is not to be deemed merged into the judgment.
Interpretation. The section headings contained herein are for reference purposes only and are not to be deemed a part of these Terms and Conditions. Whenever the context hereof requires, the gender of all words shall include the masculine, feminine and neuter, and all words shall include the singular and plural.
HIPAA Compliance. Notwithstanding anything in the Services Agreement or these Terms and Conditions to the contrary, the Parties agree to enter into a Business Associate Agreement executed to be effective as of the Effective Date. The Parties further agree to comply with any state law and regulations that govern or pertain to the confidentiality, privacy, security of, and electronic transactions and code sets pertaining to, information related to patients.
No Referral Arrangements. The Parties hereby acknowledge and agree that no benefits to the Parties hereunder require or are in any way contingent upon the admission, recommendation, referral or any other arrangement for the provision of any item or service offered by the Practice or any of its affiliates, to any patients of the Practice, or the Practice’s employees or agents. Dental Whale shall neither have nor exercise any control or direction over the number, type or recipient of patient referrals made by physicians, and nothing in the Services Agreement or these Terms and Conditions shall be construed as directing or influencing such referrals. None of Dental Whale’s activities contemplated under the Services Agreement or these Terms and Conditions or otherwise shall constitute obligations of Dental Whale to generate patient flow or business to the Practice in a manner that is in violation of any applicable health care laws. Further, there is absolutely no intent for Dental Whale in any manner to be compensated to generate patients for the Practice. Rather, the Practice has engaged Dental Whale to provide the Services in order to enable the Practice to focus on delivering the highest quality of patient care.
Clinical Responsibility. Practice understands and agrees it is solely responsible for all clinical decisions made within the Practice, including but not limited to selection and use of proper Personnel Protective Equipment (PPE), supplies, and equipment. Dental Whale expresses no opinion on the appropriateness of particular supplies, equipment, and parts or as to the compliance of those supplies, equipment and parts with federal, state, or local laws or regulations
Warranties. Practice may, through the Service Agreement, purchase goods or services directly or indirectly through Dental Whale. DENTAL WHALE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO GOODS SOLD PURSUANT TO THE SERVICES AGREEMENT, OR ANY OTHER AGREEMENT BETWEEN PRACTICE AND DENTAL WHALE,INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Nothing herein shall limit Practices’ warranty from the manufacturer or claims against a manufacturer.
Access to Records. If Dental Whale and the Practice are subject to the disclosure provisions contained in the Social Security Act, then each of the Parties agrees to comply with same and agrees to make available upon request from the Secretary of the Department of Health and Human Services or the Comptroller General, or any of their duly authorized representatives, the Services Agreement, these Terms and Conditions and any other documents and records of such Party deemed necessary by the requesting Party to verify the nature and the extent of the costs hereof. If either of the Parties carries out any of its obligations hereunder through subcontractors (subject to the assignment restrictions and other provisions hereof), pursuant to a contract for a value of Ten Thousand Dollars ($10,000) or more, said Party shall require such subcontract to contain a provision allowing similar access. The Parties’ obligations hereunder and the terms to be placed in any subcontracts shall provide that such contracts, subcontracts, books and records shall be made available for a period of four (4) years after the provision of services specified hereunder or under any of the subcontracts.
Waiver of Jury Trial. The PRACTICE and DENTAL WHALE hereby waive any and all rights to a trial by jury in connection with the enforcement or interpretation by judicial process of any provision of thE SERVICES Agreement OR THESE TERMS AND CONDITIONS, and in connection with allegations of state or federal statutory violations, fraud, misrepresentation or similar causes of action or any legal action initiated for the recovery of damages for any claims arising out of THE SERVICES Agreement, THESE TERMS AND CONDITIONS or the relations between the Parties, whether now existing or arising in the future.