Concierge and TELEMEDICINE SERVICES AGREEMENT
Concierge and TELEMEDICINE SERVICES AGREEMENT
THIS CONCIERGE AND TELEMEDICINE SERVICES AGREEMENT (hereinafter referred to as this “Agreement”), is made and entered into the at present this effective date, by and among Concierge Clinics, LLC DBA AR MMJ Cards, an Arkansas professional corporation (“Provider”), and Patient applicant as listed above (hereinafter “Client”). Provider and Client shall be referred to herein each as a “Party” and collectively as the “Parties.”
WHEREAS, Provider is in the business of providing health care services to patients in the state of Arkansas, including the provision of concierge and telemedicine services.
WHEREAS, Provider desires to be so engaged by Client pursuant to the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing and the terms and conditions contained herein, the Parties hereto, intending to be legally bound, hereby agree as follows:
1. OBLIGATIONS OF SERVICE PROVIDERS.
1.1 Provider’s Obligations.
(a) Consistent with the provisions of this Agreement, Provider shall have the responsibility and commensurate authority to provide concierge/telemedicine services for the Members as set forth in Exhibit A, attached hereto and made a part hereof (the “Concierge/Telemedicine Services”). Provider’s healthcare personnel are licensed to provide medical services in Arkansas for which a license is required. Client shall not interfere with, control, direct, or supervise Provider, or any employee or independent contractor of Provider, in connection with the provision of medical services. Provider, through licensed healthcare personnel employed or otherwise engaged by Provider shall be solely responsible for and have sole and complete authority, supervision, medical management, and control over the provision of clinical and other health care services provided to the Members, and all diagnoses, treatments, procedures, and other professional health care services shall be provided and performed exclusively by or under the supervision of licensed healthcare personnel employed or otherwise engaged by Provider, as Provider deems appropriate and in accordance with all laws.
(b) During the Term of this Agreement, Provider agrees to devote its best efforts and attention to the provision of the Conciertge/Telemedicine Services hereunder.
2.1 Limitation Against Practice of Medicine
Notwithstanding any provision contained herein, this Agreement is not intended to (i) constitute the use of a medical license or the practice of medicine by anyone other than a licensed physician; (ii) aid Client to practice; or (iii) do any other act or create any other arrangements in violation of any applicable federal or state laws or successor statutes or regulations. Provider shall remain entirely independent of Client as to (i) the diagnosis and treatment of patients, (ii) the prescription, order, or administration of any drug or medicine, and (iii) all other medical, professional and ethical affairs of Provider. Provider accepts responsibility to its patients for the nature and character of all professional medical services rendered by Provider or its agents, employees or independent contractors. Client shall not own or control the clinical aspects of Provider nor control the distribution of the revenue stream or line of business of Provider. Provider has ultimate control of setting all fees for professional services rendered by Provider and all physicians and other healthcare personnel employed or otherwise engaged by Provider. Client shall not own or exclusively control patient records. Client shall not control the transfer of ownership interests in Provider.
3. PROVIDER FEES.
3.1 As compensation for the Concierge/Telemedicine Services provided by Provider to Client under this Agreement during the Term, Client shall pay to Provider a fee on a per patient, per visit basis in the amount set forth in Pricing and service zones on ARMMJCArds.com, attached hereto and made a part hereof (the “Provider Service Fee”). Provider will charge a fee for every patient consultation, to be paid in full by the patient (the “Provider Consultation Fee”) at the time of the visit, in the amount set forth in Pricing and Service Zones.
3.2 Client’s obligation to pay the Provider Services Fee shall commence on the Effective Date. The Provider Services fee shall be paid upon receipt of invoice at time of visit. Services rendered are contingent on proof of payment by client.
4. TERM RENEWAL; TERMINATION.
4.1 Term and Renewal. The term of this Agreement shall commence on the Effective Date hereof and shall continue for a term of one (1) year (the “Initial Term”). The Initial Term and any successive terms shall be referred to herein as the “Term.”
4.2 Termination by Provider. Provider may terminate this Agreement prior to the expiration of the Term only as follows:
(a) Bankruptcy. In the event of the filing of a petition in voluntary bankruptcy or an assignment for the benefit of creditors by Client, or upon other action taken or suffered, voluntarily or involuntarily, under any federal or state law for the benefit of creditors by Client (except for the filing of a petition in involuntary bankruptcy which is dismissed within thirty (30) days thereafter), Provider may give notice of the immediate termination of this Agreement.
(b) Default. In the event (i) Client shall materially default in the performance of any duty or obligation imposed upon it by this Agreement, and such default is not remedied at time of invoice (which default is not attributable to acts or omissions of Provider), or such other time as reasonably necessary to cure so long as Client diligently pursues such cure; or (ii) Client shall wrongfully fail to remit the payments due as provided in Section 3 hereof, then Provider may terminate this Agreement.
(c) Without Cause. Provider shall have the right to terminate this Agreement with or without cause upon sixty (60) days prior written notice to Client.
4.3 Termination by Client. Client may terminate this Agreement prior to expiration of the term only as follows:
(a) Bankruptcy. In the event of the filing of a petition in voluntary bankruptcy or an assignment for the benefit of creditors by Provider or upon other action taken or suffered, voluntarily or involuntarily, under any federal or state law for the benefit of creditors of Provider (except for the filing of a petition in involuntary bankruptcy which is dismissed within thirty (30) days thereafter), Client may terminate this Agreement immediately by written notice.
(b) Default. In the event (i) Provider shall materially default in the performance of any duty or obligation imposed upon it by this Agreement, and such default is not cured after written notice specifically stating the nature of such default has been given to Provider, as applicable, by Client (which default is not attributable to acts or omissions of Client), or such other time as reasonably necessary to cure so long as Provider diligently pursues such cure; or (ii) Provider shall wrongfully fail to remit the payments due as provided in Section 3 hereof, then Client may terminate this Agreement.
(c) Without Cause. After the first twelve (12) months of the Initial Term, Client shall have the right to terminate this Agreement with or without cause upon written notice to Provider. Client shall have no right to terminate this Agreement during the first twelve (12) months of the Initial Term.
4.4 Actions after Termination. In the event that this Agreement expires or is terminated by any Party, any Provider Services Fee earned but not yet paid shall be paid by Client to Provider. The various rights and remedies herein granted in this Section 4.4(a) shall be cumulative and in addition to any others a Party may be entitled to under law. The exercise of one or more rights or remedies shall not impair the right of a Party to exercise any other right or remedy, at law or in equity.
5. REPRESENTATIONS WARRANTIES AND CERTAIN COVENANTS.
5.1 Provider. As of the Effective Date and throughout the Term of this Agreement, Provider represents, warrants and covenants as follows:
(a) Provider has been duly formed and is a validly existing entity under the laws of the State of Arkansas, is registered to practice medicine in Arkansas with the Arkansas State Medical Board and is registered to do business in Arkansas with the Arkansas Secretary of State.
(b) Provider has taken all action necessary to enter into this Agreement and the officers executing this Agreement have the proper and necessary authority to execute and deliver this Agreement on behalf of Provider.
(c) The execution and delivery by Provider of this Agreement shall not violate or cause Provider to be in default under any agreements, indentures, documents or instruments to which Provider is a party.
(d) Provider is in compliance with and shall continue to be in compliance with and obey all federal, state, and local laws, regulations, and ordinances relating to its business, and the Telemedicine Services that Provider provides hereunder.
5.2 Client. As of the Effective Date and throughout the Term of this Agreement, Client represents, warrants and covenants as follows:
(a) Client has been duly formed and is a validly existing entity under the laws of the State of Arkansas, and is registered to do business in Arkansas with the Arkansas Secretary of State.
(b) Client has taken all action necessary to enter into this Agreement and the officers executing this Agreement have the proper and necessary authority to execute and deliver this Agreement on behalf of Client.
(c) The execution and delivery by Client of this Agreement shall not violate or cause Client to be in default under any agreements, indentures, documents or instruments to which Client is a party.
(d) Client maintains compliance with and shall continue to be in compliance with and obey all federal, state, and local laws, regulations, and ordinances relating to its business, and Client’s obligations hereunder.
6. INDEMNIFICATION, AND RESPONSIBILITY.
6.1 Indemnification. Client hereby agrees, net of any insurance recovery, to indemnify Provider, and each of Provider’s respective officers, directors, managers, members, employees, owners, shareholders, and agents (except for Client), against any and all claims, actions or proceedings of any kind, losses, costs, damages, liabilities or expenses (including, but not limited to, reasonable attorneys’ fees at all levels of trial and appeal) (collectively, “Losses”) incurred by, imposed upon or asserted against Provider, or its officers, directors, managers, members, employees, owners, shareholders, and agents (except for Client), resulting from or in connection with (i) any willful misconduct or grossly negligent acts or omissions of Client, or any of Client’s officers, directors, managers, members, employees, contractors, or agents, other than the willful misconduct or grossly negligent acts of or omissions of Provider, for which Provider shall not be indemnified, (ii) any misrepresentation or breach of any warranty made by Client under this Agreement, or (iii) the breach of any covenant, agreement, or obligation of Client under this Agreement.
6.2 Survival of Indemnifications. Notwithstanding anything in this Agreement to the contrary, the indemnifications referred to in Section 6 shall survive the expiration or termination of this Agreement.
6.3 Responsibility. In entering into this Agreement and performing its obligations under this Agreement, no Party is assuming and shall have no obligation to discharge, pay, perform or be liable for any debts, liabilities, choices in actions, claims or obligations of any nature, absolute or contingent, that now exists or hereafter may accrue against or be incurred by any other Party with respect to payment due from third parties.
7. MEDICAL AND OTHER RECORDS.
7.1 Medical Records. Client shall not own or exclusively control any medical records. All medical and other records and documents prepared by Provider shall be and remain the property of Provider and the applicable patient, in accordance with applicable law, and shall be treated by the Parties as confidential pursuant to applicable federal and state law.
7.2 Business Records. All business records, papers and documents of the Parties are to remain the property of the Party creating such records, papers, and documents.
8.1 Independent Contractor. It is acknowledged and agreed that Provider is at all times acting and performing hereunder as an independent contractor with respect to Client. Each Party shall be solely responsible for compliance with all applicable state and federal laws pertaining to employment taxes, income withholding, unemployment compensation contributions and other employment related statutes regarding their respective employees, agents, and servants.
8.2 Entire Agreement. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous understandings or agreements, whether oral or written.
8.3 Amendment/Waiver. This Agreement shall not be amended, nor shall the performance of any provision hereof be waived, except by a document in writing signed by both Parties; provided, however, amendments required by regulatory or accrediting agency shall be effective upon receipt of written notice.
8.4 Binding Effect. This Agreement is binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Subject to the foregoing sentence, no other person shall have any right under or by virtue of this Agreement.
8.5 Notices. Any notice, request, demand or other communication referred to herein shall be in writing and shall be deemed to have been served properly if hand delivered or sent by reputable overnight express delivery service, or by certified mall, return receipt requested, postage prepaid and addressed to the applicable party at the address set forth below:
(a) If (a) there is (i) any change in any federal, state, or local statute, law, regulation, legislation, rule, policy, or general instruction, or a change in any third party reimbursement system, or (ii) any ruling, judgment, decree, or interpretation by any court, agency, or other governing body having jurisdiction over any Party (in any such case, for purposes of this Section, a “Regulatory Matter”), and (b) such Regulatory Matter materially and adversely affects, or is reasonably likely to affect, the manner in which any Party is to perform or be compensated under this Agreement or which shall make this Agreement unlawful, the Parties shall immediately use their best efforts to enter into a new service arrangement or basis for compensation for the Telemedicine Services furnished pursuant to this Agreement that complies with such Regulatory Matter and approximates as closely as possible the economic position of the Parties prior to such Regulatory Matter.
(b) If the Parties are unable to reach a new agreement within a reasonable period of time following the date upon which it becomes reasonably certain that such Regulatory Matter will arise, then any Party may submit the issue to arbitration in accordance with the American Health Lawyers Association Alternative Dispute Resolution Service Rules of Procedure for Arbitration for the purpose of structuring a new service agreement in accordance with Section 8.6(a) above and which new service agreement shall be binding on the Parties.
8.6 Captions and Construction. The captions used herein as headings of the various sections hereof are for convenience only, and the Parties agree that such captions are not to be construed to be part of this Agreement or to be used in determining or construing the intent or content of this Agreement.
8.7 Severability. If any clause, sentence, provision, or other portion of this Agreement is or becomes illegal, null, void, or unenforceable for any reason, or is held by a court of competent jurisdiction to be so, such portion of this Agreement shall be deemed amended to the extent required to render it valid and enforceable, and the remaining portions shall remain in full force and effect.
8.8 Counterparts. This Agreement may be executed in a number of counterparts, and signed by facsimile, each of which, when executed, shall be deemed an original, and all such counterparts shall together constitute one and the same Agreement.
8.9 Assignment. No Party hereto may assign its interest in nor delegate the performance of its obligations under this Agreement to any other person or entity without obtaining the prior written consent of the other Parties.
8.10 Force Majeure. In the event that the performance of duties required hereunder is substantially interrupted by acts of war, fire, insurrections, riots, earthquakes, hurricanes, or other acts of nature, strikes, lockouts, or any cause that is not the fault of or is beyond reasonable control of the parties hereto, the parties shall be relieved of obligations only as to those affected services of this Agreement for the duration of such interruption and for a reasonable time thereafter.
8.11 Interest and Attorneys’ Fees. If any Party commences an action against another Party to enforce any of the terms hereof or because of a breach by any Party of any of the terms hereof, the losing Party shall pay to the prevailing Party reasonable attorneys’ fees and expenses at all pre-trial, trial and appellate levels. The right to attorneys’ fees and expenses shall be deemed to have accrued upon the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment.
8.12 Survival. All covenants and representations contained herein shall survive the termination of this Agreement.
8.13 Governing Law and Venue. The Parties agree that this Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas, without regard to its conflicts of law principles. The Parties hereto irrevocably submit to the exclusive jurisdiction of any federal or state court located within Rogers, Arkansas with respect to any dispute based upon or arising out this Agreement or any of the transactions contemplated hereby, and each Party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action or proceeding related thereto may be heard and determined in such courts.
8.14 Provider shall provide to Members web-based video consultations or telephone consultations with a licensed physician as an adjunct to live in person (face-to-face meeting). For each consultation the physician shall: a. Conduct a medical consult via telecommunications to assess the Member’s medical needs; and b. Based upon the medical consult, respond as follows: i. Determine that the Member’s condition is a life-threatening emergency, and direct the Member to the nearest emergency facility; or ii. Determine that the Member’s condition is not a life-threatening emergency, and advise the Member how to treat the condition, prescribe medication as necessary, and advise follow up with medical providers as needed.
8.15 If necessary, a licensed physician will write non Drug Enforcement Agency (“DEA”) controlled substance prescriptions for client. It is understood by the Parties that Provider’s licensed physicians will not prescribe any DEA controlled substances or narcotics and operate subject to state law.
9. Limitations of Scope of Practice
The scope of this doctor and patient relationship is pursuant to consultation with Concierge Clinics LLC in a capacity of offering mobile integrative medicine care, specifically for medical marijuana consultation. In entering this agreement, both parties acknowledge that doctor and patient are not bound to an exclusive primary care physician doctor-patient relationship. With that said, both parties agree that Concierge Clinics will always advocate in the best medical interests of every patient that presents for medical care. Patient shall acknowledge that they are aware of their personal responsibility to seek the care of a regular primary care physician for annual screenings, wellness visits, acute concerns, and general preventive care.
10. Acknowledgement of Treatment Risks and Benefits
Concierge Clinics is committed to patient trust and, ultimately, patient safety. The cornerstone of this trust is transparency with the potential pitfalls and dangers associated with any type of treatment that is undertaken. Concierge Clinics duly acknowledge every effort to inform our patients above all else. Patient undersigned herby acknowledges that they have provided with sufficient information to make an informed decision regarding the responsible and legal use of medical cannabis. Signature by patient acknowledges that they have read AND understand the risks and benefits of using medical cannabis therapy as outlined on AR Concierge MD website.
11. Acknowledgement of Legal Use
The patient being certified in use of legal medical cannabis in the State of Arkansas agrees below to be the sole user of cannabis containing products obtained with a State issued medical cannabis card. The THC containing products are prohibited from being legally resold or shared with persons not legally certified for medical cannabis use in Arkansas. Patient also agrees to abide by all legal regulations as outlined by local, state, and federal legal guidelines. Concierge Clinics LLC is hereby legally absolved from all legal responsibilities regarding medical marijuana card holders’ possession and use of medical marijuana. User agrees to undertake all rights and responsibilities of Arkansas Medical Marijuana program including understanding current State and Federal laws regarding the possession and use of medical marijuana.
12. Consent to Treatment
Patient consents to treatment recommendation as set forth by Concierge Clinics LLC. Patient also acknowledges the right to refuse any treatment for any reason. Both parties agree that by providing a Physician’s Written Certification for Medical Marijuana in Arkansas, physician is acknowledging that the patient has a qualifying condition as determined by the Arkansas Department of Health.
Patient also acknowledges that the history as submitted in both the written electronic record and physician note is true and accurate and not falsified in any way to obtain medical marijuana illegally by secondary gain. Patient acknowledges all of the risks of submitting a falsified patient history with the intent to illegally obtain an Arkansas Physician Written Certification for Medical Marijuana.
Physician reserves the right to refuse any patient for medical marijuana certification at their own professional judgment and discretion. Physician agrees not to engage in illegal procurement of Written Certifications for patients for monetary gain by deliberately fabricating qualifying diagnoses.