Upon the acceptance and approval of the Order Form by the Client (“Practice”, “Client”, “You” or “Your”), the Client and The Executive Whisper d/b/a Microsite Health, a Delaware LLC (“Microsite Health” or “We”) shall be bound by these Terms and Conditions. The Order Form and these Terms and Conditions under this Website Design and Marketing Services Agreement collectively constitute the agreement for the purchase and sale of products and services (the “Agreement”) effective as of Client’s acceptance and approval of the Order Form (“Effective Date”). The following terms and conditions govern the products being sold and services rendered by Microsite Health for the Client as set forth in the Order Form.
Section 1. Service
Microsite Health’s service includes, but is not necessarily limited to, the development of a cloud-based provider website (“Website”), the provision of complete marketing and software services, (collectively, the “Complete Marketing and Software Services”), all of which are outlined below, and any other additional marketing services selected by Client in the Order Form (the “Additional Marketing Services”).
(i) Provider Website. Microsite Health will develop, edit and maintain a cloud-based Website for Client.
(ii) Complete Marketing and Software Services. Microsite Health will provide the following Standard Marketing and Software Services:
(iii) Availability and License of Software Services: Each of the software services listed above in Section 1.(ii) (the “Software Services”) are made available in accordance with these Terms and any other Microsite Health rules and policies then in effect. Client may authorize employees or subcontractors to use Software Services on behalf of Client (each, a “User”); such Users are subject to these Terms, and Client agrees to be responsible for the actions of all Users who receive authorization to use the Software Services.
(iv) Additional Marketing Services. Microsite Health offers Additional Marketing Services for additional fees. These Additional Marketing Services may be selected by Client in the Order Form.
(v) Client Marketing Area. So long as Client (i) spends Microsite Health’s suggested Media Buy to adequately cover the Client Marketing Area and (ii) uses Microsite Health exclusively as Client’s digital marketing agency by not engaging with any other digital marketing company while this Agreement is in effect, Microsite Health agrees that it will not contract with any other provider providing the same services as client located within a five (5) mile radius of Client’s office address provided on the Order Form.
(vi) Restrictions. Client will not, and will not permit or authorize third parties to: (a) rent, lease, resell or otherwise permit unauthorized third parties to access or use the Marketing and Software Services; (b) reverse engineer, reverse assemble or otherwise attempt to discover the source code for any software made available as part of the Marketing and Software Services; or (c) circumvent or disable any security or other technological features or measures of the Marketing and Software Services.
Section 2. Effective Date, Term and Termination
(i) Effective Date, Renewal and Term. The term of this Agreement shall commence on the date of execution of this Agreement (the “Effective Date”) and shall continue for an initial term of six (6) months (“Initial Term”) unless earlier terminated per Section 2(ii) below. The Agreement shall automatically renew at the end of the Initial Term for an additional term of one (1) year (“Renewal Term”). Thereafter, the Agreement shall renew on the anniversary of each Renewal Term unless it is terminated per Section 2(ii) below .
(ii) Termination. During the Initial Term, either party may terminate the agreement for cause by giving thirty (30) days prior notice of its intent to terminate and stating the cause of termination. Following the Initial Term, either party may terminate this Agreement with or without cause by giving thirty (30) days prior notice of its intent to terminate the Agreement to the other party. Client may email notice to [email protected].
(iii) Ownership of Website and Advertising Accounts Upon Termination. If the Agreement has been in place for six (6) months, then upon termination of Agreement, You will retain ownership of the Website and we will transfer said Website to you per the terms outlined in the Proposal. If You terminate the agreement prior to six (6) months following the Effective Date, Microsite Health will retain ownership of the Website. Upon termination of this agreement, any advertising accounts set up on your behalf under our umbrella accounts shall be closed and removed from our umbrella accounts.
Section 3. Privacy
(i) HIPAA. As part of the services provided under this Agreement, Microsite Health may perform or assist in performing a function or activity on your behalf that involves the use and disclosure of Protected Health Information (as defined in 45 C.F.R. 164.501; hereinafter, “PHI”). The parties hereto shall use or disclose such PHI as required by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Standards for Security of Electronic Protected Health Information (the “Security Rule”) promulgated thereunder, and the Health Information Technology for Economic and Clinical Health Act (Division A, Title XIII and Division B, Title IV, of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) (the “HITECH Act”). Capitalized terms used but not otherwise defined in this Section 2 shall have the same meaning given to such terms in HIPAA, the HITECH Act, or any implementing regulations promulgated thereunder, including but not limited to the Privacy Rule and the Security Rule.
(ii) Business Associate Agreement. You and Microsite Health agree to be bound by the terms of a Business Associate Agreement, the terms of which are available at www.micrositehealth.com/hipaa-compliance and incorporated herein by reference. You (the “Covered Entity,” as referred to in the Business Associate Agreement) hereby agree that you have read and agree to be bound by the terms of the Business Associate Agreement. Microsite Health (the “Business Associate,” as referred to in the Business Associate Agreement), agrees to be bound by the terms of the Business Associate Agreement. The parties hereto each agree to perform their respective obligations as enumerated therein.
Section 4. Pricing
(i) Website and Standard Marketing and Software Services. The price for Website and Complete Marketing and Software Services is $2,400.00 (Two Thousand Four Hundred and 00/100 dollars) per month, exclusive of the media buy costs for social media advertising on Google AdWords, Facebook or any other social media service (“Media Buy”). The budget for the Media Buy will be determined mutually between the parties and may change from month to month depending on Client’s direction. Following delivery of the website, any changes or updates in the normal course of business are included in your monthly fees. However, special requests outside the scope of our standard changes and updates, may be subject to a special request customization charge at the rate of $150.00 (One Hundred Fifty and 00/100 dollars) per hour for requested and approved special request customization changes.
(ii) Additional Marketing Services. The fees for Additional Marketing Services are set out in the Order Form.
(iii) Monthly Payment Due Date. The initial monthly payment is immediately due for Website and Complete Marketing and Software Services and any Additional Marketing Services selected as of the Effective Date. The monthly payment for any Additional Marketing Services selected after the Effective Date are due payable at the time that said Additional Marketing Services go into effect. Thereafter, the monthly payment will be due upon the monthly anniversary of the Effective Date and will be charged to your credit card. If any payment is not received because of issues with your credit card that are not resolved within ten (10) business days of notice by Microsite Health to You that credit card was declined, Microsite Health may suspend any or all services until such time as payment is made. Please provide your credit card to https://microsite.com/pay/. You agree and authorize Microsite Health to charge the initial monthly payment and subsequent monthly fees to the credit card provided.
Section 5. Indemnity
(i) Client Indemnification. You shall be responsible for the accuracy, completeness and propriety of information concerning you and your services and for the rights, licenses and permissions to use, and for the accuracy and propriety of, material furnished to us by you or on your behalf by a third party in the performance of this Agreement. Accordingly, you will indemnify, defend and hold us harmless from and against any loss, cost, liability or damage (including reasonable attorneys’ fees and costs) (“Loss”) resulting from any claim, suit or proceeding (threatened or otherwise) (“Claims”) made or brought against us (i) based upon materials supplied to us by you; or (ii) based upon the nature or use of your products/services.
(ii) Microsite Health Indemnification. We agree to indemnify, defend and hold you harmless from and against any Loss resulting from any Claims made or brought against you, for violation of the rights of privacy or publicity, copyright infringement, libel, slander, defamation or plagiarism, infringement of proprietary rights, that arises from Website and or Media Buy Materials created, produced or provided by us pursuant to this agreement, to the extent that such damages result from the use of such Website and/or Media Buy Materials without modification or alteration by you. In addition, we agree to indemnify you for any breach of confidentiality or representation or warranty contained herein. However, this indemnity shall not apply to any materials or information supplied by you to us or your use of Website and/or Media Buy Materials beyond the authorized scope or territory or for such claims arising out of the circumstances set forth above. This Indemnity Section, insofar as it applies to work undertaken while this Agreement is in effect shall survive the termination of this Agreement.
Section 6. Dispute Resolution and Arbitration
(i) Generally. Except as provided in subsection ii. below, any and all disputes, controversies, or claims arising out of or relating to the Service, this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Lake County, Illinois. The arbitrator shall apply the laws of the State of Illinois to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded as provided by the arbitrator.
(ii) Exceptions. Despite the provisions of this Section 6, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through an applicable federal, state, or local agency if that action is available; (c) seek emergency injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.
(iii) No Class Actions. Each party may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Microsite Health agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the State or Federal Courts located in Lake County, Illinois.
Section 7. General Provisions
(i) Subject Matter. This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof and, except for the terms of the Proposal which terms are incorporated herein by reference, supersedes all other prior proposals, oral or written, all previous negotiations and all other communications and understandings with respect to the subject matter hereof.
(ii) Amendment. This Agreement shall not be amended or modified in any manner except by an instrument signed by the authorized representatives of both parties.
(iii) Waiver. Any waiver of either party’s rights hereunder must be in writing. No waiver by either party of any breach or default of any of the provisions contained in this Agreement and required to be performed by the other party shall be construed as a waiver of any succeeding breach of the same or of any other provision.
(iv) Limitation of Liability. Microsite Health shall endeavor to guard against any delay to You as the result of the failure of suppliers or hosting and software companies to properly execute their commitments, but Microsite Health will not be responsible for any such delay provided that such delay is reasonable and Microsite Health uses best efforts to remedy such situation in a timely fashion. In addition, neither party shall be deemed in default of this Agreement to the extent that performance of its obligations (other than your payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such party. Notwithstanding any other provision of this agreement, each party's liability to the other for any cause whatsoever, except indemnification for intellectual property violation, or breach of the confidentiality obligations contained in the agreement, shall be limited to the amount paid by You to Microsite Health under this Agreement within the one year preceding the event (or last in a series of events) which gave rise to the claim. In no event shall either party be liable for any indirect, special, consequential or punitive damages however caused, and on any theory of liability, including without limitation, for lost profits or revenues, loss or interruption of use, lost or damaged data, reports, documentation or security, similar economic loss or otherwise.
(v) Non-solicitation of Microsite Health Staff. Client hereby agrees that during the term of this Agreement and for a period of two (2) years following the termination of this Agreement, whether the termination shall be voluntary or involuntary, with or without cause, or whether the termination is solely due to the expiration of this Agreement, Client will not hire or attempt to hire any employee of Microsite Health or otherwise encourage or attempt to encourage any employee or independent contractor of Microsite Health to leave Microsite Health.
(vi) Read and Understood. Each party to this Agreement acknowledges that it has read and understands this Agreement and agrees to be bound by its Terms and Conditions.
(vii) Acceptance of these Terms and Conditions. By signing the Order Form, Client or its agent represents that the Client has read and understands these Terms and Conditions and expressly accepts these Terms and Conditions, which are incorporated into the Order Form.