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Journey Psychotherapist Terms of Service
This Journey Psychotherapist Terms of Service (this “Agreement”) shall be entered into as of the date of agreement by and between Journey Clinical, Inc. (“Journey”, “us”, or “we”) and (“Member” or “you”). By joining as a member of Journey’s network of mental health therapy practitioners, and each time you use our services, you hereby agree to be bound by the following Member terms and conditions (“Member Terms” or “Terms”) and our Privacy Policy.
1. Background and Purpose; Services
Journey provides its Member certified mental health professionals with ability to be part of its network and obtain access to its suite of services (the “Service” or the “Services”). The services include:
Access to Journey Clinical online portal
Ability to connect with Medical Doctors, Nurse Practitioners and similar professionals.
Ability to connect with potential clients.
Ability to access training and professional development resources.
Because our Services are evolving over time, we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion, subject to the applicable requirements of the Services Agreement between Journey and your practice.
Journey Members are interested in the opportunity to provide ketamine-assisted therapy, defined as use by psychotherapy patients of medically-prescribed ketamine taken sublingually while simultaneously engaged in psychotherapy, (“KAP”) to their clients. Through the Services, we provide a platform that will enable you to interact with medical doctors, nurse practitioners and/or other eligible prescribers (“Prescribers”) who specialize in ketamine therapy, for the purpose of potentially jointly treating your clients. In addition, the platform may also connect you with potential clients who are interested in KAP. Ketamine may only be prescribed by a Prescriber. Therefore, a Member must work with a Prescriber for clients interested in KAP. Our network connects Members with Prescribers, but the decision of a Prescriber and Member to work together with any particular client is solely within the discretion of the Prescriber, Member and the client. Clients must be screened by the Prescriber directly as to the appropriateness of ketamine therapy. Journey’s Services solely connect you with Prescriber(s) but beyond that Journey cannot provide any guarantees as to your ability to enable your clients to obtain applicable prescriptions. Journey cannot make any medical or treatment decisions or guarantees. There is no guarantee that you will be able to work with a Prescriber. Prescribers’ decision to prescribe ketamine to any particular patient is in the Prescriber’s sole and absolute discretion. Journey cannot guarantee any level of business from any client or from the Service. Scheduling, billing, payment and collection for your services is your responsibility; Journey does not bill clients for your services. Journey may provide tools for you to perform any of the foregoing, however all such actions and outcomes are your responsibility.
During the period you are a Member and for a period of one (1) year thereafter, you will not directly or indirectly solicit the services of any Journey employee or contractor for your own benefit or the benefit of any other person or entity.
By using the Services, you agree that you are not an employee of Journey and that Journey is not required to provide you with workers' compensation, unemployment insurance or disability benefits, medical malpractice insurance, minimum wage or overtime pay, or any other employee wages or benefits. We reserve the right, but are not obligated, to perform a background check, either ourselves or through third party service providers, in determining whether to grant you access to the Services as a Member. If Journey requests that you execute a consent for a background check, and you refuse to do so, we may immediately cease provision of the Services to you.
2. Policy Adherence and Consents
You understand and agree that adherence to Journey’s policies and procedures, including but not limited to the [Psychotherapist Provider Guide] and any other policies and procedures which may apply to you, is necessary in order to participate in Journey’s network and receive the Services. We may modify the [Psychotherapist Provider Guide] and other Journey policies and procedures at any time, in our sole discretion. If we do so, we will let you know by posting the modified policies in our online Member portal, or we may send updated policies to you via email. If you do not agree to be bound by any modifications to Journey’s policies, then you may not use the Services any longer and this Agreement shall terminate.
You also acknowledge and agree that your execution of the Representations and Covenants agreement, as such may be updated from time to time, is necessary to participate in Journey’s network and to use the Services. Failure to execute the Representations and Covenants agreement, or any modified version of the Representations and Covenants agreement presented to you in the future by Journey, will result in the immediate termination of this Agreement.
3. Eligibility and Registration
You may only use the Services if you are 18 years of age and older, a licensed mental health professional in the jurisdiction(s) in which you provide clinical services, and if you have valid certifications, as applicable, and professional liability insurance.
As part of the registration process, you will be requested to answer questions, and you may need to speak to a representative of Journey. In addition, you will need to submit a valid photo ID, evidence of your certifications, and proof of valid and current malpractice insurance (if not submitted on your behalf by your employer). We may also require you to name additional insured(s) on your insurance policy to use the Service.
4. NO REFERRAL SERVICE
Journey is not a referral service and Journey does not receive fees from Prescribers or Members for connecting them, as applicable, with patients or clients. The Service and Journey’s online portal(s) and platform(s) DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, PROFESSIONAL, PSYCHOTHERAPY, COUNSELING, MEDICAL OR HEALTH ADVICE OR OPINION OF ANY KIND AND THE SERVICES ARE NOT A SUBSTITUTE FOR PROFESSIONAL OR MEDICAL ADVICE, OPINION, DIAGNOSIS OR TREATMENT OF ANY KIND. THE INFORMATION MADE AVAILABLE ON OR THROUGH THE SERVICES SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS, OR TO DIAGNOSE OR TREAT A MEDICAL OR HEALTH CONDITION. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT OR THERAPIST-CLIENT RELATIONSHIP BETWEEN JOURNEY AND ANY PERSONS. YOUR THERAPIST-CLIENT RELATIONSHIP IS BETWEEN YOU AND YOUR CLIENT ONLY.
5. Content within the Platform
From time to time we may collect feedback, issue surveys, and request input from Members via the Service. In addition, clients may be allowed to rate and submit feedback regarding their Members. Journey may use the data in an anonymized fashion to communicate back such feedback to Members as necessary to ensure that clients receive the best experience possible. In addition, if a Member receives poor feedback, Journey may terminate the Member’s access to the Service.
Members agree not to post, upload, publish, submit or transmit any content on the Service or through the Service that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give Journey exposure to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
6. Third Party Services
If Journey provides links to outside resources and services, Journey is doing so only as a convenience and not as an endorsement or statement of the accuracy of any third party websites, resources and services. It is the Member’s responsibility to ensure that any third party resources used in the Member’s work are accurate.
7. Privacy Policy and HIPAA Compliance
As a condition of using the Services, you agree to comply with our privacy policy, located on our website, www.journeyclinical.com, which may be updated from time to time. If your practice is regulated as a covered entity under the Health Insurance Portability and Accountability Act of 1996, and its implementing regulations, all as amended (collectively, “HIPAA”), you will comply with all applicable HIPAA requirements related to your use of the Services.
8. Term and Termination
This Agreement will commence on the date executed by you, as set forth below. This Agreement shall continue for a period of one (1) month and shall automatically renew for additional one (1) month terms (collectively, the “Term”) unless otherwise terminated as provided for herein. Journey may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you, including immediately for any violation of a Journey policy or for any breach of a consent or representation made to Journey. You may cancel your Member Account at any time on thirty (30) days written notice by sending an email to us or sending a message through your Member portal, once activated. This Agreement shall automatically terminate upon the termination or expiration of the Services Agreement between Journey and your practice entity.
9. Assumption of Risk and Indemnity
YOU KNOWINGLY AND FREELY ASSUME ALL RISK WHEN USING THE SERVICES AND ALL RISK RELATED TO KAP. JOURNEY MAKES NO CLAIMS OR ASSURANCES AS TO THE EFFICACY, DESIRABILITY OR APPROPRIATENESS OF KETAMINE IN THERAPY FOR ANY PERSON OR ANY OF YOUR CLIENTS. YOUR DECISION TO ENGAGE IN KAP FOR ANY CLIENT IS YOUR DECISION ALONE. YOU, ON BEHALF OF YOURSELF, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY JOURNEY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUCCESSORS, AFFILIATED ENTITIES AND ASSIGNS, FROM AND AGAINST ANY CLAIMS, DISPUTES, DEMANDS, LIABILITIES, DAMAGES, LOSSES, AND COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR ACCESS TO OR USE OF THE SERVICES OR ANY CONTENT CONTAINED THEREON.
You will defend, indemnify and hold Journey harmless from and against all claims, damages, liabilities, losses, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or resulting from: (a) your breach of this Agreement; (b) your use of the Services; (c) your alleged violation of any statute, ordinance, or regulation; or (d) any action by a third party or a recipient of your therapy against Journey that is based on (i) your provision of services; or (ii) any of your acts or omissions that results in personal injury, emotional distress, death, or tangible or intangible property damage (including loss of use).
10. Limitation of Liability
NEITHER JOURNEY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR ANY CONTENT RELATED THERETO WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT JOURNEY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
JOURNEY EXPRESSLY DISCLAIMS LIABILITY FOR ANY MEDICAL, LEGAL AND ANY OTHER MALPRACTICE DAMAGE CLAIMS OR AWARDS, PAIN AND SUFFERING, PERSONAL INJURY/WRONGFUL DEATH, LOSS OF INCOME, LOSS OF CONSORTIUM, MEDICAL BILLS, OR ANY OTHER LOSS BY ANY CLIENT OR MEMBER ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES.
IN NO EVENT WILL JOURNEY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOUR PRACTICE HAS PAID TO JOURNEY.
THE ASSUMPTION OF RISK AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN JOURNEY AND YOU.
11. Confidential Information
For purposes of this Agreement, "Confidential Information" means and will include any information, materials or knowledge regarding Journey and its business, financial condition, products, programming techniques, customers, suppliers, technology or research and development that is disclosed to you or to which you have access in connection with the Services. Confidential Information will not include any information that: (a) is or becomes part of the public domain through no fault of you; (b) was rightfully in your possession at the time of disclosure, without restriction as to use or disclosure; or (c) you rightfully receive from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure. You agree to hold all Confidential Information in strict confidence and not to disclose it to others. You further agree to take all actions reasonably necessary to protect the confidentiality of all Confidential Information.
12. Dispute Resolution
A. Agreement to Arbitrate
You and Journey agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Southern District of New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You agree that you and Journey are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Journey otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
B. Arbitration Rules
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
C. Arbitration Location
Unless you and Journey otherwise agree, the arbitration will be conducted in New York City, New York.
D. Arbitrator's Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Journey will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
E. Fees
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
13. General Terms
You agree that in you are an independent contractor and nothing in this Agreement will be construed as establishing an employment or agency relationship between you and Journey. You will determine, in your sole discretion, the manner and means by which your psychotherapy services are conducted, subject to the requirement that you will at all times comply with applicable law and this Agreement.
This Agreement constitutes the entire and exclusive understanding and agreement between Journey and you regarding the Services, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between Journey and you regarding the Services. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
You may not assign or transfer this Agreement, by operation of law or otherwise, without Journey’s prior written consent. Journey may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Journey under this Agreement will be given by Journey via email to the email address you provide upon registration. The date of receipt will be deemed the date on which such notice is transmitted.
Journey’s failure to enforce any right or provision of this Agreement will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Journey. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
14. Contact Information
If you have any questions about this Agreement or the Services, please contact Journey at info@journey.clinic.
Services Agreement
THIS SERVICES AGREEMENT (the “Agreement”) is made and entered into on the “Effective Date”, by and between the “Practice”, and Journey Clinical, Inc. a Delaware corporation (“Journey”).
W I T N E S S E T H:
WHEREAS, Practice operates a psychotherapy Practice that furnishes psychotherapy services to the public through independent contractor and/or employed practitioners (each a “Psychotherapist” and, collectively, the “Psychotherapists”); and
WHEREAS, Journey provides a suite of services to certified mental health professionals, including participation in the Journey network; and
WHEREAS, Practice desires to engage the services of Journey as of the Commencement Date (defined below in Section 6.1) to furnish certain Services (defined below in Section 1.1) on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, which are hereby incorporated as an integral part of this Agreement and not as mere recitals hereto, the agreements of the parties specified herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Responsibilities of Journey.
1.1 Services. As of the Commencement Date, Journey will furnish to Practice and its Psychotherapists who meet the Journey qualifications for membership (the “Member Psychotherapists”) the following services: (a) the ability to participate in Journey’s network and access to a community of peers, (b) the ability to connect with Medical Doctors, Nurse Practitioners and similar health care professionals and access to Journey’s medical team (c) the ability to connect with potential clients and a profile in Journey’s directory, and (d) the ability to access training and professional development resources, including ketamine-assisted psychotherapy, defined as use by psychotherapy patients of medically-prescribed ketamine taken sublingually while simultaneously engaged in psychotherapy, (“KAP”) online education designed by Fluence and peer consultation groups.
1.2 Confidentiality. Journey will keep individually identifiable information that it receives from Practice secure and confidential, consistent with all applicable laws and regulations. If Practice is regulated as a covered entity under the Health Insurance Portability and Accountability Act of 1996, and its implementing regulations, all as amended (collectively, “HIPAA”), Journey will safeguard any protected health information that it receives from Practice as required by HIPAA and the parties will execute a HIPAA Business Associate Agreement.
2. Responsibilities of Practice.
2.1 General Management and Clinical Services. Practice shall be responsible for the general management and administrative oversight functions relating to the operation of the Practice, as well as the clinical services provided to clients of Practice.
2.2 Non-solicitation. During the Term of this Agreement and for a period of one (1) year thereafter, Practice will not directly or indirectly solicit the services of any Journey employee or contractor for its own benefit or the benefit of any other person or entity.
2.3 Non-Member Psychotherapists. Practice shall ensure that its Psychotherapists who, at any time during the Term of this Agreement, are not Member Psychotherapists, do not receive the Services or have access to any Journey platform or content. Practice shall notify Journey immediately if a Psychotherapist is not in compliance with the Terms of Service between Journey and the Psychotherapist.
3. Compensation for Services Rendered. As consideration for the Services furnished pursuant to this Agreement, beginning as of the Commencement Date, and due and owing to Journey practice shall pay a monthly membership fee in the amount specified on Schedule 1, which may be modified by Practice from time to time in its sole discretion. As provided in Section 6.2(c), if Journey increases its fees and Practice does not wish to continue to receive the Services, Practice has the ability to terminate this Agreement.
4. Insurance and Indemnification.
4.1 Professional Liability Insurance. As of the Commencement Date, Practice shall be responsible for obtaining and maintaining in full force and effect during the Term of this Agreement, and all extensions and renewals thereof, at its expense, professional liability insurance for each Psychotherapist with minimum coverage limits of not less than $1,000,000 per occurrence and $3,000,000 annual aggregate, plus defense costs, for claims arising out of professional services furnished by Psychotherapist on behalf of the Practice.
4.2 Other Insurance. As of the Commencement Date, each party shall be responsible for obtaining and maintaining in full force and effect during the Term of this Agreement, and all extensions and renewals thereof, at its expense, (1) comprehensive liability and casualty insurance covering their operations, and the actions of their employees and/or agents, in total limits of not less than $1,000,000 per occurrence and $3,000,000 in the aggregate, and (2) Worker’s Compensation insurance for its employees.
4.3 Evidence of Insurance Coverage. Practice shall provide Journey with evidence of the insurance coverage described in Sections 4.1 and 4.2 on or prior to the Effective Date.
4.4 Indemnification. PRACTICE ASSUMES ALL RISK WHEN USING THE SERVICES AND ALL RISK RELATED TO KAP. JOURNEY MAKES NO CLAIMS OR ASSURANCES AS TO THE EFFICACY, DESIRABILITY OR APPROPRIATENESS OF KETAMINE IN THERAPY FOR ANY PERSON OR ANY OF PRACTICE’S CLIENTS. PRACTICE HEREBY VOLUNTARILY AGREES TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY JOURNEY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUCCESSORS, AFFILIATED ENTITIES AND ASSIGNS, FROM AND AGAINST ANY CLAIMS, DISPUTES, DEMANDS, LIABILITIES, DAMAGES, LOSSES, AND COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES ARISING OUT OF OR IN ANY WAY CONNECTED WITH PRACTICE’S ACCESS TO OR USE OF THE SERVICES OR ANY CONTENT CONTAINED THEREON.
Practice will defend, indemnify and hold Journey harmless from and against all claims, damages, liabilities, losses, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or resulting from: (a) Practice’s breach of this Agreement; (b) Practice’s use of the Services; (c) Practice’s alleged violation of any statute, ordinance, or regulation; or (d) any action by a third party or a recipient of Practice’s therapy against Journey that is based on (i) Practice’s provision of services; or (ii) any act or omission of Practice that results in personal injury, emotional distress, death, or tangible or intangible property damage (including loss of use).
5. Relationship Between the Parties.
5.1 Relationship of the Parties. Journey, the Member Psychotherapists, and Practice shall act at all times under this Agreement as independent contractors. Nothing in this Agreement shall be construed or be deemed to create a relationship of employer and employee or principal and agent or any relationship other than that of independent parties contracting with each other solely for the purpose of carrying out the purposes expressed in this Agreement. Each party shall be and remain responsible for all hiring and firing decisions relating to its personnel and for all costs associated with its personnel, including but not limited to salaries, wages, other compensation, taxes, tax withholding and fringe benefits (if any).
5.2 Authority Over and Responsibility for the Professional Practice. Practice, though its Psychotherapists, shall exercise such independent clinical judgment on behalf of clients of Practice. In connection with the foregoing, the parties agree that Practice’s associated Psychotherapists shall be solely responsible for the establishment and maintenance of such clinician/patient relationship, if any, as such Psychotherapist deems appropriate with respect to patients that he or she treats, and the Psychotherapist shall be solely responsible to that patient for all aspects of professional care and treatment within the scope of that relationship and the Psychotherapist’s professional responsibility. Journey does not opine on the scope of the Psychotherapist’s practice and what services fall within or outside of such scope.
5.3 Regulatory Requirements. Nothing in this Agreement shall be construed to require Journey to refer patients to the Practice, or otherwise generate business for the Practice. Notwithstanding the unanticipated effect of any of the provisions herein, the parties intend to comply with the Anti-Kickback Statute and any other federal or state law provision governing fraud and abuse or kickbacks, as such provisions may be amended from time to time. The parties intend that the fees paid to Journey shall compensate Journey for the provision of Services under this Agreement, and shall not influence Journey with regard to any referrals of patients to Practice. As such, the parties acknowledge that the compensation paid to Journey hereunder would be the same whether or not any such referrals are made. The parties further intend that the compensation paid hereunder shall be fair market value for the Services rendered based on arm’s-length bargaining between the parties, and the value of similar services in the community. In the event any court or administrative agency of competent jurisdiction determines that this Agreement violates any of such statutes or that the compensation hereunder exceeds reasonable compensation, then the parties hereto agree to take such actions as necessary to amend this Agreement to comply with the applicable statutes or regulations, as provided herein.
6. Term and Termination.
6.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of one (1) year unless sooner terminated in accordance with the provisions of this Agreement (the “Initial Term”). The Agreement shall automatically renew for additional one (1) year terms (each a “Renewal Term” and the Initial Term and each Renewal Term shall be considered included within the “Term” for purposes of this Agreement) unless otherwise terminated as provided for herein. Each party hereby agrees and acknowledges that, although this Agreement is valid and binding as of the Effective Date, many of the parties’ respective obligations pursuant to this Agreement shall not commence until the Commencement Date. As used herein, the “Commencement Date” shall be __the date this document is signed___________________________.
6.2 Termination. This Agreement may be terminated as follows:
(a) By Journey at any time, with or without cause, with thirty (30) days prior written notice to Practice; or
(b) By Practice at any time, with or without cause, with thirty (30) days prior written notice to Journey; or
(c) Immediately upon a party’s giving notice to the other party (the “Notice Party”) of the existence of “just cause” to terminate this Agreement based upon the action or failure to take action of the Notice Party. For this purpose, “just cause” shall be defined to include the following events or occurrences:
(1) the failure of Practice to pay Journey the compensation specified in Section 3 herein in accordance with the terms of this Agreement, if such failure continues for a period of thirty (30) days after written notice to Practice of such failure; or
(2) any party’s failure to fulfill its material obligations specified in this Agreement (other than the payment obligation specified in Section 6.2(c)(1) above), if such failure continues without cure for a period of thirty (30) days after notice thereof has been provided to the Notice Party.
6.3 Effect of Termination.
(a) Upon the termination of this Agreement pursuant to this Section 6, none of the parties shall have further rights or obligations hereunder, except with respect to any rights or obligations accruing prior to the date and time of termination or surviving termination in accordance with the terms of this Agreement. In connection with the foregoing, any compensation payable hereunder for services of Journey furnished prior to the date of termination shall be paid in accordance with Section 3 of this Agreement. The termination provisions of this Section 6 shall not be exclusive, but rather shall be in addition to any rights or remedies at law or in equity, or under this Agreement.
(b) The provisions of this Agreement that require the performance of obligations by either party after the termination of this Agreement shall survive such termination.
7. Confidential Information; Injunctive Relief; Survival.
7.1 Proprietary Confidential Information and Trade Secrets. None of the parties hereto shall derive from this Agreement any proprietary interest in the other party, and each party agrees that it will not, during the Term of this Agreement or at any time thereafter, either directly or indirectly, divulge, communicate or use to the detriment of the other party, any confidential information or trade secrets of the other party, including without limitation any financial information, information relating to the pricing of professional services, know-how, copyrighted materials or other information relating to each party’s business and any other information provided to the other party which is not publicly available from independent sources.
7.2 Return of Confidential Information. Each party further agrees that, immediately upon the request of any other party, it will deliver to the requesting party all documents and other materials (including copies, if any) which constitute the confidential information of the requesting party, it will not retain copies of any such documents or materials, and it will use its best efforts to recover all such information obtained by others or to make others keep the information confidential. An authorized officer of the returning party shall certify the return of all confidential information in writing to the requesting party. Notwithstanding the foregoing, the return or destruction of protected health information will be subject to the requirements of the HIPAA Business Associate Agreement between the parties, to the extent applicable.
7.3 Injunctive Relief; Survival. Each party acknowledges that its services and its covenants in this Agreement are of a special, unique, unusual, extraordinary and intellectual character which give them peculiar value, the loss or breach of which cannot be adequately compensated by damages. Each party expressly agrees that the remedy of damages for any breach of its covenants in this Section 7 shall be inadequate, and that each party shall be entitled to injunctive relief to prevent the other party from breaching such covenants. Each party also further covenants and agrees that the provisions of this Section 7 shall survive the termination of this Agreement.
8. Warranty Disclaimers. THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, JOURNEY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Journey makes no warranty that the Services will meet Practice’s requirements or be available on an uninterrupted, secure, or error-free basis. Journey makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any content posted within on any Journey platform.
9. General.
9.1 Entire Agreement; Binding Effect. This Agreement, along with any Schedule(s) attached hereto, constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all previous and contemporaneous oral or written negotiations, agreements, arrangements and understandings relating to the subject matter hereof. This Agreement shall be binding upon and inure to the benefit of the parties hereto and upon their respective successors and permitted assigns.
9.2 Amendments. Amendments to this Agreement must be made in writing and signed by both parties.
9.3 Assignment. This Agreement and the rights and obligations created hereunder shall not be assignable by the parties without the prior written consent of the other party, except as otherwise expressly permitted by this Agreement.
9.4 Waiver of Breach. Each covenant hereof is a condition, and each condition hereof is as well a covenant by the parties bound thereby, unless waived in writing by the parties hereto. No failure or delay on the part of any party hereto in the exercise of any power or right, and no course of dealing between the parties, shall operate as a waiver of such power or right, nor shall any single or partial exercise of any power or right preclude other or further exercise thereof or the exercise of any other power or right. No waiver by a party hereto of any condition or of any breach of any term contained in this Agreement shall be effective unless in writing, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term.
9.5 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, then that provision shall be reformed to the maximum extent permitted to preserve the parties’ original intent as agreed by the parties; failing which, such provision shall be severed from this Agreement with the balance of the Agreement continuing in full force and effect. Such occurrence shall not have the effect of rendering the provision in question invalid in any other jurisdiction, case or circumstance, or of rendering invalid any other provisions of this Agreement to the extent that such other provisions are not themselves actually in conflict with any applicable law.
9.6 Notice. Whenever notice must be given under the provisions of this Agreement, such notice must be in writing and addressed to the parties at their respective addresses set forth below and shall be deemed to have been duly given if delivered by hand-delivery, first-class registered postage certified mail (with written confirmation of receipt), by a national commercial overnight delivery service, or when sent by facsimile transmission or email, as follows in the associated quote agreement:
Notices shall be deemed given upon the earliest to occur of: (i) receipt by the party to whom such notice is directed, if hand delivered; (ii) on the first business day (other than a Saturday, Sunday, or legal holiday in the jurisdiction to which such notice is directed) following the day the same is deposited with the commercial carrier if sent by commercial overnight delivery service; (iii) three (3) days after deposit in the U.S. mail, first-class registered postage certified mail (with written confirmation of receipt), to the addressee; or (iv) when sent by facsimile transmission or email transmission to the above facsimile telephone numbers or email addresses, provided that the sender orally confirms receipt of the facsimile transmission or email on the day that it is transmitted. Either party, by notice duly given in accordance therewith to the other party hereto may specify a different address for the giving of any notice hereunder.
9.7 Governing Law. This Agreement shall be governed in all respects, and construed in accordance with, the laws of the State of New York without regard to the application of its conflict of laws provisions.
9.8 Headings. The headings appearing in this Agreement are for convenience and reference only and shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of this Agreement.
9.9 Counterparts. This Agreement may be executed in any number of counterparts, and by each of the undersigned on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts put together shall constitute but one and the same Agreement. This Agreement may be executed by electronic signature.
9.10 Alternate Dispute Resolution.
(a) Agreement to Arbitrate. The parties agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the Services provided by Journey (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Southern District of New York and each of the parties hereto waives any objection to jurisdiction and venue in such courts. The parties agree that they are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both of the parties otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Alternative Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Alternative Dispute Resolution” section will survive any termination of this Agreement.
(b) Arbitration Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Alternative Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
(c) Arbitration Location. Unless the parties otherwise agree, the arbitration will be conducted in New York City, New York.
(d) Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of Section 9.11 addressing liability limitations as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If Practice prevails in arbitration, Practice will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Journey will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
(e) Fees. The parties’ responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
9.11 Limitation of Liability. NEITHER JOURNEY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR ANY CONTENT RELATED THERETO WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE SERVICES OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT JOURNEY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.12 JOURNEY EXPRESSLY DISCLAIMS LIABILITY FOR ANY MEDICAL, LEGAL AND ANY OTHER MALPRACTICE DAMAGE CLAIMS OR AWARDS, PAIN AND SUFFERING, PERSONAL INJURY/WRONGFUL DEATH, LOSS OF INCOME, LOSS OF CONSORTIUM, MEDICAL BILLS, OR ANY OTHER LOSS BY ANY PRACTICE CLIENT OR OTHER INDIVIDUAL ARISING FROM OR RELATED TO THE SERVICES.
9.13 IN NO EVENT WILL JOURNEY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICES EXCEED THE AMOUNTS THAT PRACTICE HAS PAID TO JOURNEY.
9.14 THE ASSUMPTION OF RISK AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9.15 Third Party Beneficiaries. This Agreement is entered into for the sole benefit of Practice and Journey. Nothing contained herein or in the parties’ course of dealings shall be construed as conferring any third party beneficiary status on any person or entity not a party to this Agreement, including, without limitation, any Psychotherapist.
9.16 Confidentiality. The parties acknowledge and agree that this Agreement is confidential. Neither party shall disclose this Agreement or any terms hereof to any third parties except as may be necessary to obtain advice and counseling from the party’s attorneys, accountants or financial advisors or as may otherwise be required through legal process.
9.17 Authority. Each party represents, warrants and covenants to the other that:
(a) the execution of this Agreement and performance of its duties and responsibilities hereunder will not violate any other agreement to which it is a party, or require the consent or approval of any third person or entity;
(b) the execution of this Agreement and performance of its duties and responsibilities have all necessary internal authorizations and approvals;
(c) the undersigned has the authority to sign the Agreement on its behalf; and
(d) the party is not currently a party to, and will not during the Term of this Agreement, become a party to, any other arrangements which may materially interfere with its ability to perform its duties and responsibilities under this Agreement.
Schedule 1
Fees
Practice will pay to Journey a monthly fee in the amounts listed on the agreed upon quote document per Member Psychotherapist.