AGREEMENT: SPECIALIST AND YOURDOCTORS.ONLINE
Effective: March 1st, 2016
DOCTOR TERMS OF SERVICES “AGREEMENT”
THIS DOCTOR TERMS OF SERVICES AGREEMENT (the “Agreement”) is made today on the date of registration (the “Effective Date”) between YOURDOCTORS.ONLINE, an online second opinion web-based portal (“YDO”), and the doctor / specialist, an individual who is licensed to practice medicine (“SPECIALIST”). By clicking on the Doctor’s Terms of Service, you will be signing of on this contract.
YDO seeks to retain the SPECIALIST on a non-exclusive contract basis in a consultative capacity, in order to provide expert second opinions to users of YDO (“patients”) who have already obtained a prior medical opinion. SPECIALIST is willing to be retained by YDO on the terms and conditions set forth in this Agreement.
TERM OF THE AGREEMENT
The term of this Agreement shall begin on the Effective Date indefinitely until it is terminated in accordance with this Agreement.
NOW THEREFORE, the parties agree as follows:
SECTION 1. RESPONSIBILITIES OF SPECIALIST. The responsibilities of SPECIALIST under this Agreement are as follows:
- SPECIALIST Duties. SPECIALIST agrees to provide medical consultation services (the “Services”) to patients as a SPECIALIST practising within the speciality identified upon SPECIALIST Registration via the online portal. SPECIALIST represents and warrants that he/she has sufficient expertise and licensing in the identified medical speciality as stated during SPECIALIST Registration. SPECIALIST will have up to 24 hours to accept a case submitted by a patient after receiving notification from YDO’s Case Facilitator. YDO will use both email provided (during registration) and mobile number to reach / text the specialist. It is thus imperative upon the specialist to keep both these (email and mobile numbers) current and handy for effective communication.
- Qualifications and Affiliations. SPECIALIST agrees to that he/she is, and will continue at all times to be, properly licensed and in good standing to lawfully practice medicine in the state/province/country in which the SPECIALIST primarily practices. SPECIALIST also agrees that the Services provided to YDO are not in violation of any other agreement with other parties, legal, professional or regulatory constraints, or of any restrictions of any kind and hereby indemnify and save harmless YDO from any costs, liability or damage arising from the provision of his/herServices for YDO. SPECIALIST also confirms that he/she: (i) carries any necessary professional insurance coverage for Services rendered to patients outside YDO platform AND (ii) YDO will ONLY provide blanket malpractice coverage of upto US$1Mill per instance to total annual aggregate of US$3Mill insurance for the Services provided towards patients seeking second or expert opinion via the YDO platform / portal.
- Further Assurances. SPECIALIST represents and warrants that he/she has not been, and will not be, convicted of a crime for which a pardon has not been granted, and will comply with all directions, applicable laws and regulations while providing the Services.
- SPECIALIST agrees to comply with the usual office procedures of the YDO, including procedures with respect to billing and accounting practices which will follow an end of month day billing cycle for cases completed before 15th of each month (e.g., if case is completed by the SPECIALIST on 20th of a given month, he/she will not be paid at the end of that month but rather end of next month because it missed the billing cycle).
SECTION 2. RESPONSIBILITIES OF YDO. The responsibilities of YDO under this Agreement are as follows:
- YDO makes no representation or guarantee as to the number of cases which will be consulted by SPECIALIST from time to time.
- YDO assumes responsibilities for providing documentation and relevant materials from the patients prior to engaging the SPECIALIST.
- YDO shall provide all the portal enhancements, case facilitation, marketing and any other costs including administrative services at its own expense. With respect to administrative staff, YDO warrants that all paid employees shall be paid including wages, benefits, statutory deductions or income tax, Pension, Workers Compensation, employer health tax and all similar costs and expenses by YDO, and SPECIALIST is not responsible for any such amounts and is released from any claims, costs or damages which may be claimed against or incurred by SPECIALIST related to such amounts.
SECTION 3. RELATIONSHIP BETWEEN YDO AND THE SPECIALIST:
- YDO and the SPECIALIST acknowledge that this Agreement does not constitute a partnership or joint venture, that neither party has the right to contract in the name of the other, and that liabilities incurred by one party shall not be assumed by the other.
- SPECIALIST agrees that he/she is not an employee of YDO and that he/she is acting as an independent contractor providing Services for YDO.
- Should the relationship between YDO and SPECIALIST be found in law to constitute an employment relationship, which is expressly denied, SPECIALIST agrees to indemnify YDO and its respective directors, officers, employees and agents against any amounts which are found to be owing by way of employer contributions, withholdings, or termination or severance pay under any applicable legislation including the Income Tax Act (Canada), the Employment Insurance Act (Canada), the Canada Pension Plan (Canada), the Income Tax Act (Ontario), the Workplace Safety and Insurance Act (Ontario), the Employment Standards Act, 2000 (Ontario), or any other applicable law. SPECIALIST agrees to hold YDO harmless for any and all such payments and any fines, interest or penalties arising from non-payment or failure to withhold.
SECTION 4. COMPENSATION. The compensation to be paid by YDO to SPECIALIST under this Agreement shall be as follows:
(a) Cash Compensation. Unless indicated otherwise, all payments are to be made by PayPal transfer to the SPECIALIST’s PayPal account which will be linked to his/her bank account. Payment will be made to SPECIALIST’s PayPal account at the end of every calendar month. Billing cycles are made as explained in Subsection 1(d) above. SPECIALIST shall bear all other expenses arising in connection with the performance of Services under this Agreement including any applicable taxes that may become due.
(b) SPECIALIST shall be solely responsible for all income and other taxes as required by the LOCAL (CITY, STATE / PROVINCE, COUNTRY) APPLICABLE LAWS for example in ON, Canada, Income Tax Act (Canada), the Employment Insurance Act (Canada), the Canada Pension Plan (Canada), the Income Tax Act (Ontario), the Workplace Safety and Insurance Act (Ontario), the Employment Standards Act, 2000 (Ontario) or any other applicable law. which are or may be payable out of, or as a result of the receipt of, any fees or other monies paid or payable in respect of the Services including the Compensation.
(c) The parties are entering into this Agreement on their mutual understanding that no Harmonized Sales Tax (HST) or other tax is payable with respect to any aspect of the arrangement between them. In the event HST is payable by either of the parties, the parties agree to co-operate with each other to establish the minimum amount payable. Each agrees to remit to the other or to the Excise Tax Branch, Canada Revenue Agency such reports, calculations and moneys as may be determined to be payable. Each party agrees to indemnify the other with respect to any obligation either may incur with respect to such payments to the extent such obligations are the responsibility of the other. Such amounts may be dealt with as a Billing Adjustment.
SECTION 5. INDEMNITY. SPECIALIST shall indemnify, defend and hold YDO harmless from and against any and all liabilities, damages, losses, claims or expenses incurred as a result of the Services or breach of this Agreement, provided, except to the extent such liability, damage, loss, claim or expense is attributable to: (a) SPECIALIST’s negligence, recklessness or wilful misconduct under applicable laws or (b) any failure by SPECIALIST to perform any obligations contained herein.
SPECIALIST and YDO acknowledge and agree that SPECIALIST’s professional liability insurance coverage shall be primary in the event of any legal proceedings brought forward by patients of YDO. Please refer to the Patient Disclaimer, also called YDO’s Patient Terms and Agreement, for indemnification and liability clauses.
SECTION 6. TERM. This Agreement shall be effective indefinitely from the Effective (Download the PDF and Save) date until terminated in accordance with Section 7.
SECTION 7. TERMINATION. This Agreement may be terminated by the parties as follows:
(a) Early Termination. At any time during the term of this Agreement, this Agreement may be terminated:
(1) Without Cause. Either party may terminate this Agreement for any or no reason without penalty by giving thirty (30) days notice to the other party.
(2) With Cause. YDO may, in its discretion, terminate the employment of SPECIALIST upon written notice to SPECIALIST effective immediately, without prior notice, for cause. For purpose of this Agreement, the term “cause” shall mean the failure of SPECIALIST to meet the qualifications set forth in this agreement or any act that demonstrates a disregard on SPECIALIST’s part for the reputation or legitimate business interests of the YDO or welfare of patients, as determined in the reasonable discretion of the Medical Director of YDO. In addition, “cause” shall mean any finding by a court, medical association, or professional panel that SPECIALIST has engaged in any act involving moral turpitude, or has committed a felony, or which otherwise adversely reflects upon SPECIALIST’s fitness to practice medicine.
(3) For Breach. In the event that either party materially fails to perform its duties as required under this Agreement, the non-breaching party may give written notice to the breaching party of such material failure to perform and demand performance. If the breaching party fails to cure such material non-performance within thirty (30) days of such written notice, the non-breaching party may terminate this Agreement without waiver of any rights that such party may have against the breaching party for such failure to perform.
(b) Termination for Death or Disability. This Agreement shall be terminated effective immediately upon the death or permanent disability of SPECIALIST.
SECTION 8. NON-SOLICITATION.
SPECIALIST acknowledges and agrees that all patients referred to him/her during the course of providing Services, under this Agreement, are the patients of YDO. SPECIALIST agrees that he/she will refer all patients that he/she encounters during the course of SPECIALIST’s Services at YDO back to YDO for follow-up consultations, if required. SPECIALIST agrees that he/she will not under any circumstances and in any manner, whether it be by providing business cards or other forms of suggestion, instruct patients, to follow-up with himself/herself, other associated SPECIALISTs at a non-YDO location or online portal unless specifically agreed to in writing by the YDO. Further:
(a) SPECIALIST agrees, that for a period of twenty four (24) months following the termination of this Agreement, he/she will not directly or indirectly canvass or solicit patients, medical, paramedical or clerical staff of the YDO to which the SPECIALIST have come to know or treat through association with the YDO.
(b) The terms “directly or indirectly” shall mean: For or on his/her own behalf; and or on behalf of any entity in which he/she is involved as a proprietor, partner, co-venturer, financier, investor, stockholder, director, officer, employee, agent, representative or otherwise.
(c) SPECIALIST agrees that the above time limits are reasonable and properly required for the adequate protection of the business of the YDO, and in the event that such time limits are deemed to be unreasonable by a court of law, he/she agrees to the reduction of such time limits to such period as the court determines to be reasonable.
SECTION 9. CONFIDENTIALITY and PRIVACY
(a) SPECIALIST acknowledges that in the course of this Agreement with YDO, he/she will have access to, be entrusted with, and acquire detailed and confidential knowledge of YDO’s confidential and proprietary business information and operations (“Confidential Information”).
(b) Confidential Information includes, but is not limited to, trade secrets, trade names, financial information, marketing techniques, research or development projects or proposals, sales information, intellectual property, personnel information, technical information, business methods, training programs and materials, and patient information including names, contact information, lists, contracts, pricing, correspondence, relationship history, files, and all other material or information that may come into the SPECIALIST’s possession in connection with or as a result of entering this Agreement for the performance of the Services. (c) “Confidential Information” does not include information already in the public domain other than through a breach of this Agreement or a breach of any other obligations of confidentiality under contract or the common law.
(d) SPECIALIST acknowledges that Confidential Information is the sole and exclusive property of YDO, and could be used to the detriment of YDO and that the disclosure of Confidential Information could cause irreparable harm to YDO. Accordingly, SPECIALIST undertakes to maintain the confidentiality of the Confidential Information and not to disclose it to any third party or to use it for any purpose except as may be necessary in the proper discharge of his/her duties during the course and after termination of this Agreement for any reason, except with the written permission of YDO.
(e) All materials in any way relating to any of the Confidential Information or to YDO business produced by the SPECIALIST or coming into his/her possession by or through his/her Services with YDO, shall belong exclusively to YDO and SPECIALIST agrees to turn over to YDO all copies of any such materials in SPECIALIST’s possession or under his/her control, forthwith, at the request of YDO or, in the absence of a request, on the termination of his/her Agreement with YDO.
(f) It is agreed by the parties to this Agreement that each party shall keep all information relating to the terms and conditions of this Agreement completely confidential and that the parties will not hereafter voluntarily disclose or communicate the terms and conditions of this Agreement to any third party except legal counsel or as otherwise required by law.
SECTION 10. PRIVACY OF DATA
(a) Both YDO and SPECIALIST have legal obligations to safeguard and maintain the privacy and security of patients’ Personal Health Information (“Patient Information”).
(b) The parties agree and acknowledge that SPECIALIST will require access to Patient Information in the course of fulfilling his/her obligations under this Agreement.
(c) YDO shall use the Patient Information solely for the purposes of providing the services under this Agreement and for no other purpose whatsoever. SPECIALIST agrees to comply with applicable (i) Ontario privacy laws and (ii) privacy laws from his/her jurisdiction of residence in maintaining the privacy and security of Patient Information in the course of providing the Services.
(d) YDO shall take all steps reasonably required to maintain the confidentiality of all data transmitted, stored, received, or entered on the system. In this regard, YDO shall ensure that any computer(s) used to access the system is kept in a secure location that does not allow public access to or public view of the information.
(e) YDO shall promptly notify patient in advance of disclosing any such Patient Information for legal purposes, so that patient may obtain a protective order from a court of competent jurisdiction.
SECTION 11. MISCELLANEOUS.
(a) GOVERNING LAW (JURISDICTION): The Agreement governed by the laws of the Province of Ontario. As such, the rights of the parties hereunder shall be governed by, and construed in accordance with, the laws of the Province of Ontario without regard to conflicts of laws principles.
(b) ADVERTISING: SPECIALIST agrees to allow YDO to advertise and announce his/her name and hospital names and affiliations joining or leaving YDO in print and electronic media and to promote his/her Services during the term of Agreement.
(c) NUMBER AND GENDER: It is agreed that unless the context of this Agreement requires otherwise, the singular number shall include the plural and vice versa, the number of the verb shall be construed as agreeing with the word so substituted, words importing the masculine gender shall include the feminine and neuter genders, and words importing persons shall include firms and corporations and vice versa.
(d) DATA AGGREGATION and DE-IDENTIFIED INFORMATION: YDO is permitted to use and disclose Patient Information, but only in order to analyze data for permitted health care operations, and only to the extent that such use is permitted under applicable legislation. SPECIALIST agrees that YDO may extract de-identified information from Patient Information in order to accumulate and analyze data relating to the delivery and results of medical care. The data shall not contain any patient, SPECIALIST, or medical-provider identifiable information.
SECTION 12. ENTIRE AGREEMENT
(a) This Agreement constitutes the entire agreement between the parties with respect to the provision of Services by SPECIALIST for YDO. All previous agreements, written or oral, express or implied between the parties or on their behalf relating to the provision of Services are terminated and cancelled and SPECIALIST releases and forever discharges YDO of and from all manner of actions, causes of action, claims or demands whatsoever under or in respect of any previous agreement.
(b) SPECIALIST acknowledges that he/she has had independent legal advice or the opportunity to receive same in connection with the execution of this Agreement, has read this Agreement in its entirety, understands its contents, and is signing this Agreement voluntarily and without duress or undue influence from any party.
(c) This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one agreement.
(d) Any modification to this Agreement must be in writing, signed by the SPECIALIST and an officer of YDO or it shall have no effect and shall be void.
(e) The headings are utilized in this Agreement are for convenience only and are not to be construed in any way as additions or limitations of the covenants and agreements contained in this Agreement.
(f) In the event that any provision or part of this Agreement shall be deemed void or invalid by a court, the remaining provisions, or parts of it, shall be and remain in full force and effect.
(g) Any notice required or permitted to be given to the SPECIALIST shall be sufficiently given if delivered to the SPECIALIST personally or if mailed by registered mail to the SPECIALIST’s address last known to YDO. Any notice required or permitted to be given to YDO shall be sufficiently given if delivered to the CEO or Privacy Officer of YDO personally or if mailed by registered mail to YDO head office at its address last known to the SPECIALIST. Any notice given by mail shall be deemed to have been given forty-eight (48) hours after the time it is posted.
By Registering to the portal as a specialist – you are accepting this Doctor Terms of Agreement
It is responsibility of SPECIALIST to download and store the PDF file (see top of the page)