MD Spark, LLC
(Last revision date: 12/5/16)
A. “Healthcare Professional” means a physician, chiropractor, dentist, acupuncturist, nutritionist, or other healthcare provider, or an entity or organization with whom such provider works or is associated.
B. “Offered Service” means the pre-paid service to be provided by the Provider, as stated on the Voucher and as presented on the Website.
C. “Provider” means you.
D. “Service” means the services offered by MD Spark.
E. “User” means an individual who has established an account and whose account is in good standing to purchase Offered Services.
F. “Voucher” means the electronic coupon/voucher with details of the Offered Service that MD Spark will provide to a User upon payment for the Voucher, and which the User will present to the Provider.
G. “Website” means the website at doc.deals and its related websites.
2. Overview of the Service and Website. MD Spark operates a service for its Users who have established an account and whose account is in good standing to purchase pre-paid Services from a Healthcare Professional for a discounted fixed price using our Website. A User may be the person to whom the Provider provides an Offered Service, or a User may be someone who purchases a Voucher on behalf of another person (e.g., a family member or as a caregiver) to whom the Provider provides the Offered Service.
3. How Our Service Works.
A. Set Up. When you sign up with us, you will create an account with a login ID and password. As part of our Service covered by the Set-Up Fee described below, we will create a unique website page or area of a website page (“Provider Site”) for you. We will also set up a portal accessible only by you (or “Practice Users” designated by you) with a dashboard containing information, such as Vouchers purchased, User details for Vouchers purchased, Vouchers redeemed, revenue redeemed and revenue still to be redeemed. We will also perform a limited background check. We will also check your registration contact numbers, state registration to ensure your license is active and you are in good standing with the state(s) you are offering services for on our website. If you are a Healthcare Professional group or office (referred to as a “Group”), we treat the Provider in whose name the account is established as the owner of all Provider accounts associated with such Provider, and we call this Provider the “Provider of Record.” The Provider of Record may be changed in accordance with Section 3B.
B. Amending Provider Information. If you are a Provider of Record, you are required to submit to us all information necessary to confirm yourself as the Provider of Record, and maintain the accuracy of such information, in a timely fashion, during the term of this Agreement. You are also required to maintain the accuracy of all information associated with each set of login credentials. We shall be entitled to rely on all information you submit to us under this Agreement. In the event that you contact us and assert that you have authority to act on behalf of a Provider or any of its account(s) or data, you hereby agree to submit to us such written certifications, assurances (which may include a written opinion of your counsel identifying us as beneficiaries entitled to rely on such opinion), instruments or judicial process as we, in our sole discretion, may request.
C. Offered Services. You hereby authorize us to offer, sell and distribute Vouchers for your Offered Services in accordance with this Agreement. We will promote your Offered Services on our Website and/or our partner, affiliate, contractor, distributor or our other branded websites. The Vouchers may be offered to all or part of our subscriber base or affiliate subscriber base or referral network and segmented by various variables including gender, age, location, and consumer preferences. The features may be offered through a variety of distribution channels, including, the Internet, the Website, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by us, our affiliates or business partners. We reserve the continuing right to reject, revise, or discontinue any Offered Service, at any time and for any reason in our sole discretion, and to terminate the Offered Service advertisement and to remove all references thereto from the Website. You can add Offered Services to the Website. Specifically, you will be able to, via your Provider account, set the price for the Offered Service (the “Provider Fee”), include a description any conditions, and include any limitations, such as locations, days and times available, as well as the start date and expiration date (the last item being referred to as the “Expiration Date”). You can add Offered Services at any time. All of the foregoing information you provide to us is considered part of your “Provider Content”, as defined in Section 13A. From this submitted information we will produce an Published Offer with your Offered Service. The price offered to the consumer will include the price you set plus our administrative fee.
D. You shall honor the Vouchers for the Offered Service through the Expiration Date. After the Expiration Date, YOU AGREE TO REDEEM THE VOUCHER FOR THE AMOUNT PAID INDEFINITELY. You agree that so long as an appointment or reservation is made to redeem a Voucher, or purchaser has made an attempt to make an appointment, before the Voucher’s Expiration Date, the Voucher will be honored for the full offer value without restriction, even though the services may be provided after the Expiration Date. You are not required to provide any services other than the Offered Services set forth on the Voucher. In the event a User seeks to schedule use of a Voucher prior to the Expiration Date and is denied by the Provider, or is unable to use the Voucher for any other [reasonable] reason prior to the Expiration Date, we may, upon a User’s request, extend the Expiration Date by sixty (60) days. You agree that in providing the Offered Services, you will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the pricing or terms stated on the Voucher. You further agree not to impose different terms or a different cancellation policy than what is imposed on your non-MD Spark patients or customers. You further agree to comply with the Voucher terms and conditions as set forth on the Website, and to ensure that the Vouchers comply with any and all Laws that govern vouchers, gift cards, coupons, and/or gift certificates, including but not limited to, the Credit Card Act of 2009 and any state or local Laws governing the imposition of expiration dates, service charges, dormancy fees or other terms and conditions of the Voucher.
E. Purchase. Registered Users purchase and pay for an Offered Service in advance. Upon receipt of payment we will send the User a Voucher with confirmation and additional information by email to the email address in the User’s account profile. The User will then be able to access and download the Voucher from the User’s account via the Website.
F. Providing the Offered Service. It is to be understood that the “User” may be the person who purchased the Voucher, or may be someone for whom that Voucher was purchased; accordingly, references to the term “User” includes, as appropriate, the purchaser and to the patient. The User should follow the instructions accompanying the Voucher to schedule and keep the appointment with the Provider. The User will present the Voucher to the Provider in paper or electronic form. You are obligated to honor the Voucher and provide the Offered Services, unless, as a Healthcare Professional, you in good faith believe that providing the Offered Service to that particular User would be medically unwise, unwarranted, or might harm such User. Once a Voucher is activated and delivered to the User, you shall be solely responsible for all customer service in connection with the Voucher and for supplying all services specified in the Voucher. We further reserve the continuing right, but shall not be obligated, to reject, revise, or discontinue publishing any Voucher and to require you to edit or modify the same for any reason, including, without limitation, to conform the Voucher to our specifications or applicable Laws.
G. Service Quality. If we, in our sole discretion, determine your response times or the quality of service provided to Users is unsatisfactory (based on User feedback), we may terminate the Agreement and return the amount paid to Users for unredeemed Vouchers.
4. Disputes; Cancellation; Resolution. In the event of any miscommunication or dispute regarding the Offered Service, it is the responsibility of you and the User to resolve the issue, not us. If you for any reason are unable to provide the Offered Service, the User will be offered the opportunity to select another Offered Service, or if the User elects not to select another Offered Service, we will refund to the User in full the fees paid for such unprovided Offered Service. If a User wishes to cancel an appointment prior to attending the appointment, the User must send a cancellation request to you in accordance with your published cancelation policy. If required, we will investigate the case.
Examples of resolutions are:
A. If a User made an appointment with a Provider in the wrong geographical area, the User would be refunded.
B. If a User misses an appointment without providing the required prior notice, the User will not be entitled to a refund and a no-show fee applicable for the original appointment may be charged by the Provider. The User would need to reschedule the appointment. If a User cancels an appointment but not within your stated cancellation policy, you may charge the User a cancellation fee.
C. If a Provider cannot render a Service for medical reason, the Provider may allow the value of the Voucher to be applied to another procedure or may authorize a refund from MD Spark to the User
D. If a Provider does not have an appointment available within a reasonable time, the purchased Voucher may be transferred to another provider or refunded to the User
E. We are not responsible for any part of the interaction or relationship between the User and the Provider after the Voucher is issued.
5. Fees and Payment.
A. Fees. By clicking on the “Place Order“ button, you hereby authorize us to initiate a charge to your credit card for (i) the initial “Sign-Up Fee”, and (ii) the first month’s Subscription Fee, both as stated on the then-current published Pricing Schedule on our Website. If you, as a Provider, are a Group, then the Group will pay the Sign-Up Fee and the monthly Subscription Fee for each professional in the Group that is participating.
B. Payment by Provider. The Subscription Fee is due monthly on the first of the month. The Subscription Fee is subject to change. We will post any increase in fees at least 30 days prior to any increase. All amounts are in U.S. dollars. Your order includes our automatic renewal service. This means you hereby authorize us to automatically charge the then-current monthly renewal fee to the credit card stored with your Provider account before your subscription expires. After the first month, no charges other than the monthly Subscription Fee will be automatically charged to your credit card. If your credit card is cancelled or a charge is declined, failure to update the card information by the 10th day of the then-current month may result in suspension or termination of your access and/or your account. You agree that you will not dispute any valid charges unless you have already made an effort in good faith to rectify the situation directly, and those efforts have failed. You represent and warrant you are the legal cardholder for this credit card, and that you are legally authorized to enter into this recurring agreement with MD Spark.
C. Payment by MD Spark. Upon completion of the Offered Service, you must redeem to us the Voucher provided by the User by entering the Voucher code in your account on our Website. We will pay you the Provider Fee within one business day via an Electronic Funds Transfer or other payment mechanism to the account information in your Provider account. The Provider Fee is the net amount of the Offered Service price less our administrative fee (the Voucher price the User sees includes both). Again, it is important that you make sure that this account information is accurate and that you do not let anyone have access to your Provider account that you do not supervise so that, in part, your bank account information is not compromised or changed.
D. Partial Redemption. If a User redeems a Voucher for less than its face value, you will be responsible for issuing a credit or cash equal to the difference between the face value and the amount redeemed if required by law.
E. Taxes. You represent that you or your Group is registered for sales and use tax collection purposes, and shall be responsible for paying all sales and use taxes related to the services described in the Offered Service.
6. Term and Termination.
A. This Agreement shall commence upon both your clicking in the “I Agree” box and paying the Set-Up Fee and initial Subscription Fee. This Agreement shall continue until terminated (the “Term”).
B. To the maximum extent permitted by applicable law, we may terminate this Agreement immediately by giving you written notice, without need to follow any additional procedure, and without any refund, if: (a) you become insolvent, file a petition for bankruptcy, go into liquidation or become unable to pay your debts as they fall due, or (b) you are in breach of one of your obligations which cannot be cured or which we have given you notice of default and which you have failed to cure within fourteen (14) days of that notice, or (c) your conduct violates our policies. If we terminate this Agreement for any of the above reasons it does not terminate any outstanding obligations you have to provide Offered Services for Vouchers paid for by Users prior to termination.
C. After the minimum term, either you or we may terminate this Agreement at any time by providing us with at least thirty (30) days’ prior written notice. No refunds will be provided.
7. Provider Account.
A. You agree to (i) provide truthful and accurate registration information as requested by us; (ii) promptly inform us of any changes to your account information, including, but not limited to, your address and email address; (iii) take all reasonable precautions to safeguard access to your password and to prevent unauthorized access to or use of the Service; (iv) promptly report to us any unauthorized use of your login information or the Service of which you become aware; and, (v) ensure that you log out from your account at the end of each session. You should periodically change your password.
B. Unauthorized Use of Your Account. You are responsible for keeping your account login credentials (user name and password) confidential and not sharing them with unauthorized users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your information.
C. Minimum Age for Use. The Website and the Service is intended for access and use by individuals over 18 years of age, and you represent and warrant (i) that you are at least 18 years old and reside in a state in the United States in which our Service may legally be provided, and (ii) you are the person whose name and other information have been provided for the Provider account that you have created or are creating.
8. Access to the Service and the Website. Subject to your compliance with the terms of this Agreement, including timely payment of all fees, as described herein, MD Spark grants you a personal, limited, terminable, non-exclusive, non-transferable right to access the Website and use the Service.
9. License. You hereby grant to MD Spark a non-exclusive worldwide license and right to use, reproduce, display, distribute and transmit your and your Group’s (if any) name, logo and any trademarks (“Provider Marks”) and any photographs, graphics, artwork, text and other content provided or specified by you (“Content”) in connection with the marketing, promotion, sale or distribution of Offered Services, in any and all media or formats in which such Offered Services are marketed, promoted, transmitted, sold, or distributed, including, but not limited to, on the Website.
10. Representations and Warranties by You. You represent and warrant that throughout the Term: (a) you have the right, power and authority to enter into this Agreement; (b) you are registered for sales and use tax collection purposes in all states in which your services will be provided pursuant to the terms and presentation of the Voucher; (c) the Voucher, upon being activated and delivered by us to a User shall be available immediately for redemption by the User; (d) the terms and conditions of the Voucher, including any discounts or goods and services offered thereunder, comply with all, and do not and will not violate any, local, state or federal law, statute, rule, regulation, or order ("Laws"), including but not limited to, any Laws governing vouchers, gift cards, coupons, and/or gift certificates; (e) you own all right, title and interest in the Provider Marks and Content and have the right to grant the licenses in the Provider Marks and Content stated in this Agreement; (f) the Offered Services and any advertising or promotion of your services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable Laws; and (g) the Provider Marks and the Content do not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party or any Laws.
11. Feedback You Give Us and Content You Provide.
A. By your submitting, posting, or displaying content of any kind, or providing us information pursuant to Section 3C (“Provider Content”), you (i) represent and warrant that you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize us and other users to use and distribute your Provider Content as necessary to exercise the licenses granted by you in this Agreement and in the manner contemplated by us and this Agreement, and (ii) give us, our affiliated companies, sublicensees, partners, and the successors and assigns of each, a perpetual, irrevocable, worldwide, royalty-free, nonexclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, reproduce, edit, reformat, and create derivative works from any Provider Content that you submit, post, or display on or through the Website, our blog, our related websites or by other means. You acknowledge and agree that this license includes a right for us to make such Provider Content available to other companies, organizations, or individuals with whom we have relationships, and to use such Provider Content in connection with the provision of those Services, and that all Provider Content you submit to us, including, but not limited to, feedback data, such as questions, comments, suggestions and any other response (other than protected health information) is deemed to be nonconfidential.
B. Right to Block Posts, Comments and Reviews. Verified Users will have the opportunity of submitting reviews to the website. You will be notified of all reviews and you will have the opportunity to respond to posts. If you believe a review is malicious or untrue, you will should notify us in writing so that we can investigate the post. If the review is found to be incorrect or malicious, we may have the post blocked.
C. Content you post or contribute may appear on our Website or those of our affiliates, partners and the like, or on mobile device apps, in newsletters, or elsewhere. You are responsible for all content that you post. You may not post any links or tags within your Offers or Profile information except where required by the platform. You may not post content that: Is not your own original creation or that you do not have permission to use (keep in mind that just because something on the internet does not have a copyright notice on it doesn’t mean you can use it without permission); infringes the copyright, trademark, patent right, or other proprietary right of any person or that is used without the permission of the owner; you know to be inaccurate; is pornographic, sexually explicit, or obscene; exploits children or minors; violates the rights of privacy or publicity of any person; is harassing, libelous, slanderous, or defamatory; contains any personally identifying information about any person without their consent or about any person who is a minor; may be deemed generally offensive to the community, including blatant expressions of bigotry, prejudice, racism, hatred, profanity or religious or political radicalism; includes advertisements, promotions, solicitations, spam, or offers to sell any goods or services for any commercial purpose; is off topic; is intended to provide professional advice, including but not limited to, the provision of medical treatment, or legal, financial or investment advice; is intended to solicit, recommend, endorse, or offer to buy or sell any securities or other financial instruments, tout stocks, or recommend that any particular security, portfolio of securities, transaction, or investment strategy is suitable for you or any specific person; violates any local, state, federal, and/or international laws or regulations; promotes or provides instructional information about illegal or illicit activities; contains software viruses or any other computer code, files, or programs designed to destroy, interrupt, or otherwise limit the functionality of any computer software, computer hardware, or other equipment; or, is intended to overwhelm, cause technical disruptions of or denial of service to our servers.
12. Use of User Information.
13. No Medical or Health Service. You acknowledge that we are not a health advisor and we do not provide medical, health or other professional services or advice. You acknowledge that Providers are not the employees of MD Spark and are not providing services on behalf of MD Spark, but instead are independent professionals solely responsible for the services each provides to Users.
14. HIPAA Acknowledgment. You also understand that we are not a “covered entity” as defined in the Health Insurance Portability and Accountability Act and the regulations promulgated under that Act (“HIPAA”). You acknowledge that Providers are or may be “covered entities” that are subject to the provisions of HIPAA pursuant to 45 CFR 103. Therefore, you understand and agree that any protected health information (“PHI”, as defined under HIPAA) provided to us is subject to or protected by HIPAA. You agree to maintain any PHI provided to you by us in accordance with HIPAA requirements.
A. This Agreement may be transferred in its entirety by a Provider of Record in connection with the sale, transfer or reorganization of all or substantially all of the Group’s practice or business to which this Agreement relates; provided that each of the following conditions are satisfied in full: (a) an authorized representative of the transferor or transferee notifies us in writing of the transfer, the legal name of the transferee, and date of transfer; (b) the transferor or transferee submits to us such written certifications, assurances (which may include a written opinion of your counsel identifying us as beneficiaries entitled to rely on such opinion) or instruments as we, in our sole discretion, may request; and (c) we are satisfied, in our sole discretion, of the validity of the certifications, assurances or instruments submitted pursuant to clause (b). Upon our recognition of a transfer by a Provider of Record, the administrative rights and all Provider accounts for that Group shall automatically transfer to such Provider of Record’s recognized transferee. Except as expressly set forth in this Section 17A, you may not assign, transfer or convey (whether by contract, merger or operation of law) this Agreement, in whole or in part, without our prior written consent, which may be withheld at our sole discretion. Any assignment by the Provider of Record may incur additional Set-Up fees to cover the changes required to the Provider Account and an estimate would be provided for this work. We may freely assign, transfer or convey this Agreement in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
17. Intellectual Property Rights.
A. Ownership. Ownership of all intellectual property and other rights in the Website, including, but not limited to, the software, design, layout, content, links, and the like shall remain with us and our licensors, as applicable. All Website content is protected by copyright and is owned by us or used with permission. We reserve all rights not specifically granted in this Agreement. Elements of the Website are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part by any means, including but not limited to, the use of framing or mirrors. None of the content for our Website may be retransmitted without our express written consent.
B. Trademarks. MD Spark, the MD Spark logo and the taglines “The New Healthcare Savings Marketplace” and “Cash for Care Marketplace”, as well as other trademarks we use are trademarks or registered trademarks of MD Spark, LLC.
18. Third Party Materials. The Website may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that we are not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. We do not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
19. Indemnification. You agree to defend, indemnify and hold MD Spark, its affiliated and related entities, and any of their officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, fines, taxes, damages, losses or expenses (including but not limited to attorney's fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by you of this Agreement; (b) any claim for state sales or use tax obligations ("Taxes") arising from the sale and subsequent redemption of a Voucher; (c) any claim by any local, state or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest ("Abandoned Property Claims"); or (d) any claim arising out of or relating to the products and services provided by you, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages. Without limiting the foregoing, you shall pay any monies owed to any party, as well as all attorney's fees, related to any action against, or determinations against, us related to any action to pursue us for Taxes or Abandoned Property Claims.