These Terms and Conditions (“Agreement”) contain the general terms and conditions under which Best Doctors Canada Inc., a wholly-owned subsidiary of Teladoc Health, Inc. (“Teladoc Health”) will provide Expert Medical Services to the company (“Client”) named in the applicable Expert Medical Services application (“Application Form”). Teladoc Health and Client shall be referred to herein as the “Parties” and each individually as a “Party”.
1. Scope.
This Agreement sets forth the terms and conditions under which Teladoc Health will provide the Expert Medical Services to certain of Client’s employees (“Eligible Employees”) and their dependents (“Eligible Dependents”), collectively and individually referred to as “Member(s)”. The Application Form signed by Client is hereby incorporated into by reference and made a part of this Agreement.
Capitalized terms used but not separately defined in the Application Form shall have the meanings assigned to them in this Agreement. In the event of a conflict between terms set forth in this Agreement and the terms of the Application Form, the terms of the Application Form will govern.
In accepting the Expert Medical Services, Client acknowledges and agrees to the following and further acknowledges that Teladoc Health is relying upon such acknowledgment in providing the Expert Medical Services:
(a) Teladoc Health is a medical information services company and, as such, Teladoc Health does not provide medical treatment or medical diagnoses, and the Expert Medical Services do not create or otherwise give rise to a physician-patient relationship between any Teladoc Health medical professional and a Member. All treatment decisions are made by each Member in consultation with his/her treating physician(s).
(b) Teladoc Health may be unable to provide the Expert Medical Services to a Member if Teladoc Health does not have the records it deems necessary, such as medical records and related test reports, radiology, pathology, and/or physician notes (“Required Medical Information”), or if Teladoc Health does not have the Member authorizations and/or consents it deems necessary to obtain such data.
(c) Teladoc Health may refuse to provide or may terminate the provision of the Expert Medical Services to a Member if the Member declines to execute any required consents and/or authorizations, or if Teladoc Health determines, in its reasonable discretion, that a Member’s use of any Expert Medical Services is or was for a purpose other than to better the Member’s outcome in relation to the Member’s treatment by his/her treating physician (e.g., for litigation purposes).
(d) Teladoc Health does not and will not have any authority to make benefit determinations, and any such decisions will be made by Client in accordance with Client’s benefits programs and/or plan documents. Use of the Expert Medical Services by the Members is not a condition of participation in or payment under Client’s program(s) of insurance. The Expert Medical Services may not be used for utilization review purposes.
(e) Teladoc Health will have no power or authority on behalf of Client to waive, alter, or modify by estoppel or otherwise, any of the terms or conditions of any benefit program provided by Client. Teladoc Health will have no power or authority to bind Client to any insurance or other risk.
(f) Teladoc Health is not responsible for the administration, development, or legal review of any program Client uses to incentivize Members to use the Expert Medical Services. Teladoc Health may, in its own discretion, refuse to participate in any such program.
(g) Client represents that any Member contact information provided to Teladoc Health by Client (or by a third party on behalf of Client) may be used by Teladoc Health to contact the Members for the purposes of performing the Expert Medical Services, and that Client has obtained any necessary consents, if applicable, for Teladoc Health to contact Members using the Member contact information.
2. Term and Termination; Survival. The term of the Agreement between the Parties is defined in the Application Form signed by Client (“Term”); provided, however, that the provisions of Section 3 (Intellectual Property Rights), Section 5 (Personal Information; Confidential Information), and Section 7 (Indemnification; Limitations of Liability) shall survive any expiration or termination of the Agreement.
3. Intellectual Property Rights.
3.1 Client acknowledges that all materials relating to the Expert Medical Services that are developed by or on behalf of Teladoc Health or provided to the Client by Teladoc Health (including, without limitation, any communication and/or member engagement materials referred to in the attached Exhibit(s)), and all trade names, service marks, trademarks and logos that are used by Teladoc Health, and such other trade names, trademarks and logos as hereinafter may be designated by Teladoc Health in connection with its business (the “Teladoc Health Marks”)
are the unique intellectual property of Teladoc Health (the “Intellectual Property”), and the Client agrees that: (i) the Client will not duplicate the Teladoc Health Marks or Intellectual Property in any format that would, in whole or in part, infringe upon the intellectual property rights of Teladoc Health, and will not use or disclose the Intellectual Property in any manner other than pursuant to this Agreement; (ii) the Client and its employees, directors, officers, agents, owners, successors and assigns shall maintain the confidentiality of any Intellectual Property disclosed to the Client by Teladoc Health pursuant to the terms of this Agreement; and (iii) on termination of this Agreement, the Client shall return to Teladoc Health all of the Intellectual Property provided to the Client upon request, or will certify through an officer of the Client that all Intellectual Property has been destroyed.
3.2 Pursuant to the terms of this Agreement and only in a manner that has been approved by Teladoc Health in advance, Teladoc Health grants Client a limited, non-exclusive, non-transferable, revocable license to use the Teladoc Health Marks during the Term of this Agreement
4. No Joint Undertaking. Teladoc Health and Client are and shall at all times function as independent contractors under this Agreement, and neither Teladoc Health nor Client is authorized to assume or create any obligations or liabilities, express or implied, on behalf of or in the name of the other Party, except to the extent otherwise specifically contemplated herein. The employees, agents, representatives, providers, methods, facilities and equipment of a Party shall at all times be under the exclusive direction and control of that Party.
5. Personal Information; Confidential Information.
5.1 Teladoc Health agrees that with respect to Member’s medical and individually identifiable information (“Personal Information”):
(a) it shall not use, access, manage, transfer, or disclose Personal Information collected in the performance of the Expert Medical Services, beyond what is necessary to perform the Expert Medical Services;
(b) as of the Effective Date and continuously during the Term of this Agreement, it shall have in place the technological, physical and organization security safeguards designed to protect Personal Information against anticipated threats or hazards, loss, theft, unauthorized access, disclosure, copying, use, modification, disposal and destruction;
(c) it will protect Personal Information in its possessions as required by, and in compliance with, all privacy laws and this Agreement; and
(d) to the extent permitted by law it shall cooperate with Client and/or Member to respond to any complaints initiated against Client related to compliance obligations of Personal Information.
5.2 For purposes of this Agreement, “Disclosing Party” shall mean the Party that discloses any Confidential Information, as defined below, to the other Party to this Agreement, and the “Receiving Party” shall mean the Party that receives any Confidential Information, as defined below, from the other Party to this Agreement.
(a) For purposes of this Agreement, “Confidential Information” shall include information: (i) that is not known by actual or potential competitors of the Disclosing Party or is generally unavailable to the public; (ii) that has been created, discovered or developed by, or otherwise become known to, the Disclosing Party or in which property rights have been assigned or otherwise conveyed to the Disclosing Party; and (iii) that has material economic value or potential material economic value to the Disclosing Party’s present or future business. Confidential Information shall include trade secrets which include all discoveries, developments, designs, improvements, inventions, formulas, software programs, processes, techniques, know-how, negative know-how, data, research, technical data (whether or not patentable or registerable under patent, copyright or similar statutes, and including all rights to obtain, register, perfect, and enforce those proprietary interests) and any other intellectual property (including Intellectual Property), customer and supplier lists, price lists, business plans, and any modifications or enhancements of any of the foregoing, and all program, marketing, sales, or other financial or business information disclosed to the Receiving Party by the Disclosing Party, either directly or indirectly, in writing or orally or by drawings or observation, which has actual or potential economic value to the Disclosing Party, any other information that is treated as confidential, regardless of whether it is marked as such, and any other information that a reasonable party would conclude is confidential or proprietary in nature. Confidential Information shall also include, without limitation, employee information whether or not defined as personal health information by federal or provincial legislation, analyses, forecasts, studies, summaries, marketing plans, financial data, business statistics, property, contracts, methods, transactions, affairs, concepts, ideas, Expert Medical Services, products, images, graphics, text, audio, video, software and other data, knowledge, content or information in written, oral, visual and/or physical/sample form.
(b) Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (i) is or becomes a part of the public domain through no act or omission on the part of the Receiving Party; (ii) is disclosed to third parties by the Disclosing Party without restriction on such third parties; (iii) is in the Receiving Party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under this Agreement; (iv) is disclosed to the Receiving Party by a third party having no obligation of confidentiality with respect thereto; (v) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (vi) is released from confidential treatment by written consent of the Disclosing Party.
(c) Notwithstanding the foregoing, portions of Confidential Information may be disclosed pursuant to the request of a governmental agency or third party if such disclosure is required by operation of law, regulation or court order, provided the Receiving Party gives the Disclosing Party prompt written notice of such proposed disclosure in order to enable the Disclosing Party to obtain an appropriate protective order, if it so desires.
(d) The Receiving Party shall hold and maintain the Confidential Information of the Disclosing Party in strictest confidence and in trust for the sole and exclusive benefit of the Disclosing Party. The Receiving Party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing Party, any of the Confidential Information of the Disclosing Party.
(e) The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information of the Disclosing Party in violation of this Agreement may cause the Disclosing Party irreparable harm, and that monetary damages may not be a sufficient remedy. Thus, the Receiving Party agrees that the Disclosing Party shall have the right to apply to a court of competent jurisdiction for an order restraining any such disclosure or misappropriation and for such other relief as the Disclosing Party shall deem appropriate, and the Receiving Party expressly agrees that the Disclosing Party shall be entitled, in addition to any other remedy provided by law, to seek an injunction or other equitable remedy respecting such violation or continued violation. Such right is to be in addition to the remedies otherwise available to the Disclosing Party at law or in equity. If any action at law or in equity is brought to enforce or interpret the provisions of this Section, the prevailing Party in such action shall be entitled to reasonable attorneys’ fees.
(f) Upon request, the Receiving Party shall promptly return to the Disclosing Party any and all records, notes and other written, printed or tangible materials
pertaining to the Confidential Information of the Disclosing Party or will certify through an officer of the Receiving Party that all Confidential Information received from the Disclosing Party have been destroyed.
6. Representations of the Parties; Disclaimer.
6.1 Each Party represents that (a) it has the necessary and actual right and authority to enter into and to perform its obligations under this Agreement, (b) it has taken all necessary corporate action to authorize the execution, delivery, and performance of this Agreement, (c) this Agreement constitutes a valid and binding obligation enforceable against the Party in accordance with its terms, and (d) it will perform its obligations under this Agreement in a manner that complies with all laws applicable to such Party.
6.2 Client represents that (a) Client has sought its own legal advice with respect to the use of the Expert Medical Services as part of a wellness program, if applicable; and (b) that Teladoc Health has not provided Client with advice regarding the legality of any of its wellness programs or use of the Expert Medical Services for such wellness programs.
6.3 Each Party represents that it will maintain such insurance coverage as is reasonably necessary to support its respective obligations under this Agreement, which, for Client, shall be at least a commercially reasonable general liability policy.
Specifically, Teladoc Health represents that during the Term, it will maintain the following minimum types and amounts of insurance in the provision of the Expert Medical Services, with carriers having an AM Best Rating of A- or better:
(a) Workers Compensation Insurance in the amount required by law;
(b) Professional Liability/MCO Errors and Omissions coverage of $10 million per occurrence/aggregate;
(c) General Liability coverage of $1 million per occurrence/$2 million aggregate;
(d) Technology Errors and Omissions and Cyber Risk Liability coverage (including network security and privacy liability) of $10 million; and
(e) With respect to telehealth services, Teladoc Health will ensure that each Physician is provided with the requisite medical malpractice insurance coverage, in all cases complying with the minimum requirements of the applicable jurisdiction.
Upon request, Teladoc Health will provide Client with a certificate evidencing the above insurance coverage.
6.4 Client acknowledges and agrees that except as may be explicitly set forth in this Agreement, Teladoc Health has made no representations, and has expressly disclaimed to the maximum extent permitted by law, all warranties or representations of every kind or nature, either implied or statutory, as to the Expert Medical Services, including without limitation, any implied warranties of merchantability, fitness for a particular purpose, or title.
6.5 Client acknowledges and agrees that the provision of telehealth Expert Medical Services to Members facilitated by Teladoc Health are uninsured medical Expert Medical Services (i.e., not covered by provincial or territorial health plans).
7. Indemnification; Limitations of Liability.
7.1 Each Party agrees that it is solely liable for any breach, misrepresentation, error or omission by its employees, agents and representatives concerning the Expert Medical Services or otherwise made by such Party in fulfilling its obligations under this Agreement. Each Party agrees to indemnify and hold harmless the other Party and its affiliates, and their directors, officers, employees, agents, representatives, successors and assigns, from and against any loss, cost, damage or expense, including reasonable attorneys’ fees and court costs, arising out of any error, omission or malfeasance of such breaching Party.
7.2 Each Party’s total liability (including the liability of any of its officers, employees, or agents) relating to claims for damages arising from or relating to the performance of this Agreement shall be limited to direct (reasonably foreseeable) damages and shall in no event exceed twice the amount of Fees paid by Client during the Term; provided, however, that:
(a) Teladoc Health’s total obligation for any claim arising from (i) a breach of the Personal Information; Confidential Information Section of the Agreement; or (ii) a claim for liability asserted by a third party relating to the performance of this Agreement shall in no event exceed CAD $5 million; and
(b) in the event of a decision of liability attributed to both Parties, each Party’s obligation will be limited by its relative fault as compared to the other Party or a third party in such matter.
Each Party expressly waives any right to seek consequential, indirect, punitive, or special damages for claimed losses arising from or relating to the performance of this Agreement from the other Party including, without limitation, claims for loss of business, data, revenue, profits, or goodwill, even if the Parties have knowledge of the possibility of such damages and whether or not such damages are foreseeable.
8. Data Transmission Security. Data transmission security is the process of sending data from one computer system to another in a secure manner so that only the intended recipient of the data receives the data and the data sent is identical to the data received. When electronic personal health information (“ePHI”) is transmitted over an electronic communications network i.e. “the internet”, transmissions of ePHI to and from Teladoc Health will utilize Secure File Transport Protocol (SFTP).
Client is expressly prohibited from indirectly or directly, knowingly violating or attempting to violate the security of Teladoc Health’s websites, including, without limitation, accessing data not intended for such user or logging into a server or account which user is not authorized to access, attempting to probe, scan or test the vulnerability of the system or network or to breach security or authentication measures, scanning or testing the performance of the system or network, attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus or “trojan horse” to the website, overloading, “flooding”, “mail bombing” or “crashing”, or sending unsolicited electronic mail, including promotions and/or advertising of products or Expert Medical Services. Violations of system or network security may result in civil or criminal liability. Teladoc Health will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
9. Publicity. Teladoc Health may use Client’s trade name and logo on Teladoc Health’s standard sales-deck and customer list(s) solely to indicate, during the Term, Client’s status as a customer of Teladoc Health, without other indications of endorsement. All other use of Client’s trade name, trademark, service mark, or symbol in Teladoc Health’s advertising, publicity or other promotional endeavors requires the prior consent of Client.
10. Dispute Resolution. Prior to the institution of formal court action, the Parties agree that any dispute, claim or controversy arising from this Agreement shall be considered and addressed by one representative from Teladoc Health and one representative from the Client at a meeting held upon at least five business days’ advance notice from the complaining Party. Such meeting shall be held at a neutral location in the city where the non-complaining Party has its principal office or as otherwise agreed upon by the Parties. If the claim or controversy is not resolved by the representatives at such meeting or within five business days thereafter, either Party may proceed with court action.
11. Miscellaneous.
11.1 Entire Agreement; Amendment; Severability. This Agreement (including any Exhibits) constitutes the entire agreement by and between Teladoc Health and Client relating in any manner of its subject matter, and any representation, warranty, condition, covenant, understanding or agreement not contained or incorporated in it by reference shall 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. This Agreement may only be modified in writing, signed by an authorized representative of each Party. In the event any provision of this Agreement shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather this Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the Parties shall be construed and enforced accordingly.
11.2 Waiver. Any failure on the part of a Party to comply with any of its obligations, agreements, or responsibilities under this Agreement may be waived by the other Party to whom such compliance is owed. No waiver of any provision of such agreements shall be deemed a waiver of any other provision, nor shall any waiver constitute a waiver of any failure other than that waived.
11.3 No Third Party Beneficiaries. No person other than the Parties and their respective successors and permitted assigns is intended to be a beneficiary of this Agreement. In executing this Agreement, the Parties do not intend to create third-party beneficiary rights in anyone not a Party to the Agreement.
11.4 Force Majeure. Neither Party shall have liability to the other as a result of a Force Majeure Event; provided, however, that the non-performing Party uses commercially reasonable efforts to avoid or remove such causes of nonperformance and restores performance as soon as such causes are removed. For purposes of this Agreement, “Force Majeure Event” means an event not reasonably foreseeable, beyond a Party’s reasonable control, and occurring without its fault or negligence, including, without limitation (a) an act of nature, such as fire, flood, earthquake, storm, tornado, lightning, landslide, sink hole, or outbreak of disease, (b) a service failure caused by third parties, such as a power or utility outage or a labor dispute affecting suppliers or subcontractors, (c) a civil disruption such as war, invasion, insurrection, trade embargo, or activities by terrorists or public enemies, or (d) action by a governmental body that enjoins or prevents performance by a Party.
11.5 Notice. All notifications, consents, reports, requests, demands, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed given: (i) three (3) days after being mailed (with return receipt requested), (ii) when emailed, or (iii) one (1) day after being sent via a recognized overnight courier service, to the Parties at the addresses specified in the Application Form signed by Client.
11.6 Governing Law; Jurisdiction; Venue. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, without regard to the conflict of laws principles. Jurisdiction and venue for any and all disputes under this Agreement shall be the courts of the Province of Ontario.
11.8 Language. The Parties confirm having requested that this Agreement and all notices or other communications relating to it be drafted in the English language only. Les Parties aux présentes confirment avoir requis que cette convention et autres communications s’y rapportant soient rédigés en langue anglaise seulement.
