PROVIDER MEMBERSHIP AGREEMENT
This Provider Membership Agreement (“Agreement”) is effective as of July 10th, 2021 by and between FACEMYDOC INC. (“FMD” or the “Company”) and Member (“Provider”), a licensed healthcare provider located in the United States sometimes referred to collectively as “the Parties.”
WHEREAS, Provider is an independent medical practitioner, specializing in the field of medicine;
WHEREAS, FMD provides a healthcare platform and other value added services to enable Providers to practice telehealth and provide patient consultations in states where they are properly licensed;
WHEREAS, FMD provides its service under direct or indirect contract with individual and provider groups (“Customers”) to provide telehealth consultations to patients (“Clients”);
WHEREAS, FMD also provides services directly to medical facilities (in such context, “Customers”);
WHEREAS, FMD desires to engage Provider as an independent contractor in accordance with the terms and conditions of this Agreement; and
WHEREAS, Provider is agreeable to such engagement.
NOW, THEREFORE, in consideration of the above recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Provision of Services
1.1 Provision of Services. Provider shall provide telehealth consultation services, including preliminary and/or official interpretations (the “Services”), via FMD’s telehealth delivery platform or by such other means as FMD may provide from time to time.
1.2 Payment for Services. In full consideration for all Services performed by Provider, FMD agrees to provide medical billing services through value added service partner(s). Payments to Provider will be done via electronic funds transfer, directed to a U.S. account or accounts designated in writing by Provider from time to time, or via check through U.S. mail.
1.3 Licensing and Credentialing Fees. Provider also agrees to pay all fees, including initial application, renewal or similar fees, necessary to secure, re-establish or renew Provider’s right to practice in the states identified in Exhibit A (collectively “License Fees”) and fees associated with obtaining a Collaborating Physician if needed (collectively “Clinical Privileges”).
2. Professional Qualifications and Provider Independence
2.1 Professional Qualifications and Obligations. At all times during the Term of this Agreement (defined below), Provider: (a) shall maintain permanent residence in the United States (b) shall maintain Provider’s status as a board certified clinician; (c) shall comply with the requirements of the state(s) where licensed relating to the provision telehealth services (d) shall be qualified and licensed to practice medicine in Provider’s jurisdiction of residence; (e) shall be continue to be qualified to be licensed to practice medicine and become and remain so qualified and licensed at their discretion in such other states for which FMD requests Provider to become licensed and qualified; (f) shall not be under current exclusion or sanction by any state or federal health care program, including Medicare or Medicaid, or in any non-U.S. jurisdiction with the exception or exclusion solely based on geographic location; (g) shall be eligible for coverage under practice’s medical liability insurance and for medical liability insurance for the jurisdictions in which medical practice is performed and in the site of residence of the Provider; and (h) shall not, without the prior written consent of FMD, perform any services from a location outside of the United States or a Territory thereof.
2.2 Reporting Requirements. Provider shall inform the FMD’s President or Board of Managers in writing immediately of: (a) any charge or conviction whatsoever of violation of any law or ordinance of any local, county, state or federal jurisdiction; (b) any denial or revocation of membership in a state, county or local medical society; (c) any denial or relinquishment of staff membership, reading rights, or clinical privileges at any time; (d) the initiation of any disciplinary action or inquiry concerning Provider by a hospital or medical staff, state medical licensing authority or federal authority or program including Medicare; (e) any malpractice claim asserted against Provider or settled or adjudicated by or on behalf of Provider; (f) any voluntary or involuntary surrender, suspension, revocation or restriction of a state or federal narcotics controlled substance permit; (g) any voluntary or involuntary surrender, suspension, revocation or restriction of any professional license; (h) revocation of any professional board certification; (i) any action commenced or taken against Provider by any licensing or privileging authority; (j) the commencement or taking of any disciplinary action or inquiry whatsoever by any licensing authority, institution or professional society; or (k) any agreement or understanding by or between Provider and any licensing authority that Provider will not apply for license renewal in a jurisdiction.
2.3 Clinical Privileges; License Applications. Provider shall obtain a state medical license (“License”) for each state the Provider wishes to perform telemedicine. Provider shall furnish promptly upon request by FMD all documentation or information necessary for the verification of Provider Licenses. Provider shall maintain each License granted to Provider until FMD specifies that such License is no longer required; which shall include fulfillment of any applicable Continuing Medical Education (“CME”) or similar requirements for each state in which Provider holds a License. FMD shall provide Provider with reasonable assistance in obtaining CME requirements for each state in which Provider holds a License. Upon termination of this Agreement, Provider shall be responsible for the costs of expenses, if applicable, associated with Licensing and Credentialing.
2.4 Medicare Identification and Qualification. Provider shall enroll or maintain enrollment in Medicare and/or similar or comparable public or private third-party payor programs, and shall provide Provider’s unique identifying number or similar identification to FMD to facilitate billing. FMD agrees at it’s sole discretion, if needed, to provide Provider with reasonable assistance in completing and maintaining such enrollments.
2.5 Compliance with Professional Standards. Provider shall perform all Services contemplated by this Agreement in accordance with the standards of professional ethics and practice as may from time to time be applicable to the fields of medicine and telehealth, in the United States and in each of the states in which Provider holds a License, including standards promulgated from time to time by the American Medical Association (AMA) and/or the Association of Family Practice PAs and NPs (AFPPANP).
2.6 Reports. Provider covenants and agrees that all reports (“Reports”) rendered by Provider shall include all pertinent findings and clinical impressions and shall be personally reviewed and signed by Provider; and that Provider will verbally communicate clinical findings to an attending Provider or collaborating physician where appropriate for patient care. Provider accepts responsibility for the contents of all such signed reports and communications.
2.7 Independent Contractor.
a. Provider is and shall at all times remain an independent contractor to FMD. Nothing in this Agreement shall create or be construed to create any relationship between Provider and FMD other than that of an independent contractor. Provider hereby consents to FMD identifying Provider among FMD’s independent contractor Providers on FMD’s, or FMD’s management company’s website.
b. Provider’s obligations under this agreement relate primarily to the provision of Services during agreed term and in compliance with applicable state and federal laws and requirements for the practice of telehealth. This Agreement permits Provider to, and contemplates that Provider will, conduct any and all other personal, business or professional activities that are not expressly limited or conditioned by this Agreement.
c. Provider acknowledges that the Health Insurance Portability and Accountability Act of 1996 and related regulations (45 C.F.R. Parts 160 and 164) (“HFMDA”) and the Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”) require FMD to establish and follow written procedures pertaining to the protection of patient information and the provision of health care services. Provider further agrees to abide by FMD’s written procedures complying with applicable HFMDA and JCAHO requirements in order that FMD and Provider may fulfill their respective legal obligations under HFMDA.
2.8 Obligation to Update. Upon FMD’s request from time to time, Provider shall provide certificates or other proof of continued compliance with Sections 2.1, 2.2 and 2.3 above, and shall provide FMD written notice of any change in such status, not less than 30 days prior to the effective date of such change.
2.9. Policies and Procedures. Provider agrees to abide by the policies and procedures set forth from time to time at FMD and those relating to network use and access, use and care of any equipment or services necessary to perform telehealth services, and operating procedures may be revised by FMD from time to time.
2.10 Information Requirements: Privileges. In connection with the granting of Membership Privileges, FMD may request professional references from Provider and may require Provider to complete questionnaires or other documentation necessary for or related to privileges or Provider’s prospective Services. If FMD, in its sole judgment, is not satisfied with the information provided in such references, questionnaires or other documentation, FMD may, in its sole discretion, decline to grant Membership Privileges to Provider and terminate this Agreement.
3. Financial Arrangements
3.1 Exclusive Billing. FMD, through its channel partnerships, shall provide the medical billing services and collections from FMD’s customers and clients, for Provider’s services and all related accounts receivable. Provider shall provide FMD, and at FMD’s request with all information reasonably necessary to permit such billing in a timely and accurate manner. Provider shall be solely responsible for, and shall indemnify and hold FMD (and FMD’s clients) harmless from, any claims, liabilities and repayment obligations with respect to (a) the accuracy of Provider’s record of claims and (b) Provider’s compliance with federal and state laws (including but not limited to Medicare and Medicaid requirements) relating to the submission or assignment of such claims. Provider acknowledges and agrees that the right to bill and collect for Services shall be the exclusive right of FMD and its channel partners. Provider may not use their own medical billing service for visits done through the telehealth platform unless stated and agreed to in writing by the Parties.
3.2 Membership Fees. Provider’s may join FMD by selecting a membership based on the packages available as referenced on our website by clicking here. Membership fees (“Fees”), benefits and term lengths may change without notice at the discretion of the FMD. Certain fees may be waived and/or discounted at the discretion of the FMD. Unless otherwise agreed to by the Parties in writing, the membership fees are non-refundable and non-transferable. In the event a member wishes to leave early, a written request shall be made in order or us to determine the balance of your contract. You will be liable for any subsidies, sponsorships or other allowances applied to your account minus any fees already paid. This will be added to any credits given for training and support at a rate of two hundred and fifty dollars per hour. Non-payment will result in derogatory reporting to all three credit bureaus and the filing of a UCC lien on your practice in order to recover lost monies in accordance with the Uniform Commercial Code.
3.3 Chargebacks. By becoming a Client of the Company, you agree to contact us with the aim to resolve any problem you might have before requesting or demanding a refund or chargeback from your bank or credit card provider at any time while or after using our services. Credit card chargebacks are considered to be fraudulent where no reasonable effort to cooperate with us to resolve any problems with your account is made. Our scope is to prevent credit card fraud, and all fraud without any exception, shall be prosecuted through criminal proceedings in your local jurisdiction to the fullest extent of the law. Additionally, FMD shall pursue civil legal action at your local jurisdiction seeking any loss of income related to the respective fraud, including business, legal fees, research costs, employee down time and loss of revenues. We also warn that FMD actively leverages external, cross-industry resources and reports to all three of the major credit bureaus. All frivolous chargebacks cost our employees time away from their usual and customary matters of conducting normal business, hence it is costly to the company. Therefore, in these cases, we reserve the right to report any user who initiates a chargeback to the major credit bureaus as having a delinquent account status. This may cause derogatory marks to appear on your credit report that can lower your credit score. We employ advanced risk detecting modeling to track any sort of fraudulent transaction threatening our provision of services. Fraudulent transactions shall be immediately cancelled upon being detected. Any active orders associated in any way with the same fraudulent credit card shall also be cancelled immediately.
4. Patient Records and Information
4.1 Patient Record and Patient Information. All patient records shall remain the property of FMD and as such, FMD agrees that it shall obtain patient consents and patient authorizations necessary for Provider to receive orders, images and other information necessary for Provider to render a Report. Provider shall comply with all requirements of HFMDA, and applicable laws of any U.S. state or Territory relating to the privacy, security, and administration of patient health information. Provider agrees to enter into, and thereafter comply with, any business associate or confidentiality agreements reciting such obligations, including training sufficient for Provider to demonstrate proper use, as may be required by Clients to permit access to a Client’s network and patient information.
4.2 Access to Books and Records. Provider and FMD shall each maintain all records in a form and for the period of time required by applicable laws. Provider and FMD shall make available to authorized agents of the Secretary of Health and Human Services (or other governmental authority) this Agreement, any amendments to this Agreement, and any books, documents or records belonging to Provider or FMD and any related entity that may be necessary to verify the nature and extent of any payments made to Provider or FMD hereunder. Any such access shall be in accordance with the written regulations established by the Secretary of Health and Human Services to the extent required by law. In the event that Provider or FMD is requested to disclose any books, documents, or records for the purpose of an audit or investigation of Services delivered under this Agreement, FMD or Provider shall notify the other of the nature and scope of the request and shall make all books, documents, or records so disclosed available to the other upon written request.
5.1 Virtual Clinic.
a. Provider shall:
(i) obtain and maintain in good, working condition, an electronic device such as a laptop or desktop with video camera capabilities to run the telehealth software;
(ii) test and familiarize themselves with the telehealth platform according to the instructions provided by FMD;
(iii) follow FMD’s direction regarding running a successful telehealth practice
(iii) maintain open communication with the FMD and ensure that the needs and obligations of the Parties are met in a timely manner. Provider is solely responsible for contacting the FMD with any questions regarding their telehealth practice, billing, technology or any other matter pertinent to the relationship of the Parties.
5.2 Procedures for HFMDA Compliance. Provider shall comply with the procedures respecting use of the telehealth platform, including applicable HFMDA requirements. Provider shall not use the resources of the FMD for any purpose except the Provision of Services to patients.
5.3 System Access. FMD will provide Provider with all necessary access to conduct patient visits on the telehealth platform.
6. Term and Termination
6.1 Initial Term and Renewal. This Agreement shall have an initial term of 12 months from the Effective Date (the “Initial Period”). The Agreement shall automatically renew for subsequent periods, after the expiration of the Initial Period and each subsequent period (each a “Renewal Period”) which shall equal the same length of the Initial Period unless a change in term length is requested by the Provider or unless earlier terminated pursuant to Section 6.2. The Initial Period and each Renewal Period, if any, are collectively referred to herein as the “Term.”
6.2 Termination; Suspension.
a. Termination Without Cause. Either party may not terminate this Agreement without cause.
b. Termination for Cause. Either party may terminate this Agreement for cause if the other party materially or repeatedly defaults in the performance of its obligations and has not cured such default within 30 days of receipt of a default notice specifying the default and the intention to terminate or under mutually agreed upon terms between the Company and Provider OR if the termination is agreed upon by both parties. The company will not unreasonably withhold consent to the request if termination is requested by the provider.
c. Automatic Suspension. Upon the occurrence of any of the following events, each of which shall constitute a ground for termination for cause, then, without further action by either party, the provisions of Sections 1 of this Agreement shall be immediately suspended pending cure or termination in accordance with subparagraph b of this Section 6.2:
(i) Provider’s License to practice medicine in any state or Territory of the United States is forfeited or restricted in any way;
(ii) Provider fails to comply with any requirement under Section 2.1;
(iii) Provider becomes ineligible for continued malpractice insurance coverage pursuant to Article 7;
(iv) Provider is convicted upon trial or plea of the commission of any felony or of the commission of a misdemeanor related to the delivery of health care services or a moral turpitude;
(v) Provider is excluded or debarred from participation in any federally-funded health care program, including the Medicare or Medicaid programs, with the exception of ineligibility based solely on Provider’s geographic location; or
(vi) Provider’s disability. For the purpose of this Section, “disability” means the inability of Provider to provide Services by reason of Provider’s illness or other physical or mental impairment or condition continuing for a period of thirty (30) calendar days; or
(vii) If, in the reasonable judgment of FMD’s Medical Director, after consultation with FMD’s
Quality Assurance Officer or Quality Assurance Committee, Provider (i) has failed to
comply with the requirements of Section 2.5 and (ii) such failure had or may have had
an adverse impact on patient care.
6.3 Consequences of Termination.
a. Return of Property and Confidential Information. In the event of termination for any reason, Provider shall return to FMD all property and Confidential Information (as defined in Section 8.1) received from FMD, Provider shall immediately cease using any passwords or other information provided by FMD for access to FMD’s or FMD Client’s information, and Provider shall make prompt payment of any outstanding monies owed to FMD or it’s channel partners.
b. Payment of Early Termination Fee. Provider shall pay to FMD all Fees accelerated through (i) the first six (6) months of the Initial Period if termination occurs within 180 days of the Effective Date (ii) the first twelve (12) months of the Initial Period if termination occurs after 180 days of the Effective Date.
7.1 Professional Liability Coverage. Provider agrees to have and maintain a policy of professional liability insurance naming Provider as the insured with coverages in the amounts recommended by FMD’s channel partner responsible for providing malpractice coverage (the “Insurance”). The Insurance shall cover Provider for malpractice claims made during the term of this Agreement, based on conduct alleged to have occurred based on Services provided during the Term. Such coverage will apply only to the practice of medicine performed on the telehealth platform and specifically excludes any other practice of medicine or professional services that the Provider may engage in outside the Agreement unless stated otherwise in the policy. Provider agrees not to disclose the name of FMD’s insurance provider or the details of Provider’s insurance policy to any third-party entity without the written authorization from an officer of the FMD. Provider agrees to obtain separate insurance coverage for medical services outside the scope of this Agreement that Provider may provide for or on behalf of any third party.
7.2 Separate Insurance. Provider agrees to provide certificate(s) of insurance (or other proof of coverage) to FMD, upon its request, for all policies carried by Provider relating to the practice of medicine or any other professional services conducted by Provider outside of this Agreement and agrees to provide FMD thirty (30) days prior written notice of any change in, or termination of, such separate coverage.
8. Confidentiality, Prohibition Against Competition & Non-Disparagement
8.1 Confidential Information Defined. For purposes of this Agreement, “Confidential Information” means a “trade secret” within the meaning of 18 U.S.C. § 1839, subd. 3, and includes without limitation thereof all information about FMD’s clients, products, services, personnel, pricing, sales strategy, technology, trade secrets, methods, processes, research, development, finances, systems, techniques, accounting, purchasing and plans, including medical liability insurance providers and other vendors. All information disclosed to Provider by FMD or to which Provider obtains access, whether marked as “confidential” or not, whether originated by Provider or by others (either prior to execution of this Agreement or thereafter), shall be presumed to be Confidential Information if it is treated by FMD as being Confidential Information or if Provider has a reasonable basis to believe it is Confidential Information.
8.2 Obligation of Confidentiality.
a. Except as required in connection with delivery of the Services hereunder, Provider shall not use or disclose to any person any Confidential Information for any purpose.
b. During the Term and for a period of two years following termination of this Agreement, Provider shall inform FMD of the identity and location of any entity to which Provider provides any services as an employee or independent contractor or in any other capacity if that entity can be reasonably considered to be a competitor to FMD in the provision of telehealth services. Provider acknowledges that the purpose of this information is to allow FMD to inform such entities that Provider is in possession of Confidential Information of FMD. Provider further acknowledges that Provider’s failure to supply the information required by this provision may make Provider personally liable for any use of FMD’s Confidential Information by those companies.
8.3 Noninterference with Existing Relationships. Provider agrees that during the Term and for a period of two years following termination of this Agreement, Provider will not directly or indirectly:
a. induce or attempt to induce any person who is employed by or otherwise engaged to perform services for FMD to cease working for FMD; or
b. induce or attempt to induce any customer, client, vendor, or supplier of FMD to cease doing business with FMD.
8.4 Prohibition Against Solicitation. Unless otherwise agreed in writing by Provider and FMD, Provider will be restricted in the practice of telehealth for the specified periods indicated below.
a. During the term of this Agreement and for a period of one (1) year thereafter, Provider shall not, subject only to the exclusions set forth in subparagraph (d) hereof, directly or indirectly, engage or participation in visits with patients brought to the Provider by FMD with any other telehealth platform or business entity, in any business that provides telehealth services.
b. During the term of this Agreement, Provider shall not engage in the provision of telehealth services during any scheduled shifts with FMD for anyone other than the FMD.
d. Nothing in this Section 8.4 to the contrary withstanding, Provider (i) may hold less than 1% of the outstanding capital stock of a corporation whose securities are listed on any national securities exchange or quoted on the National Association of Securities Dealers Automated Quotation System or traded on the over-the-counter market, and (ii) may practice medicine, including telehealth, in any U.S. State on a local basis. For purposes hereof, “local basis” means (i) the provision of services to patients located within 50 miles of Provider’s principal residence or office by whatever means.
e. FMD may refuse during the period for which non-competition limitations apply to provide a list of hospital affiliations for Provider unless Provider is in compliance with the requirements of this Section 8 and reasonably evidences the same to FMD.
8.5 Blue Pencil Doctrine. Provider acknowledges that FMD has expended substantial time and expense in the acquisition, research and development of processes, technology, techniques and products that are unique to FMD or not generally known to others and which could be unfairly taken or used by others in competition with FMD, and further acknowledges that competition with FMD is not based strictly on geographical location. Accordingly, Provider agrees that the restrictions contained in this Article are reasonable. If the scope of the restrictions contained in this Article is too broad to permit enforcement of such restrictions to their full extent, then such restrictions shall be construed or re-written so as to be enforceable to the maximum extent permitted by law.
8.6. Extension of Term. The period of time during which Provider is prohibited from engaging in certain activities or obligated to undertake certain actions pursuant to this Article shall be extended by the length of time during which Provider is in breach of this Agreement.
8.7. Effect of Prior Non-Competition Clauses. Provider represents and warrants that neither this Agreement nor Provider’s performance of services hereunder violates any other agreement to which Provider is a party, including any non-competition agreement in favor of such party.
8.8. Non-Disparagement Clause. Provider agrees that during the Membership Term or at any time thereafter, the Provider will not make any statements, comments or communications in any form, oral, written or electronic to any Media, public or private forum, review site, social media, message board or any customer, client or supplier of FMD or any of its Affiliates, which would constitute libel, slander or disparagement of FMD or its products, services, directors, employees, vendors, partners or any of its Affiliates, including, without limitation, any such statements, comments or communications that criticize, ridicule or are derogatory to FMD or any of its Affiliates; provided, however, that the terms of this Section 8.8 shall not apply to communications between the Provider and, as applicable, the Provider’s attorneys or other persons with whom communications would be subject to a claim of privilege existing under common law, statute or rule of procedure. The Provider further agrees that they will not in any way solicit any such statements, comments or communications from others.
8.9. Liquidated Damages. The Provider and FMD acknowledge that in the event the Provider is found to be in default of the Disparagement Clause as outlined by this Agreement, the Adverse Consequences to FMD as a result of such default may be difficult, if not impossible, to ascertain. Accordingly, in lieu of indemnification pursuant to Section 8.9, FMD shall be entitled to receive from the Provider for such default a fee in the amount of two-thousand and five hundred dollars ($2,500) (“Default Fee”) as liquidated damages without the need for proof of damages, subject only to successfully proving in a court of competent jurisdiction that the Provider is in default of Section 8.8. FMD shall proceed against the Default Fee as full satisfaction of liquidated damages owed by the Provider and as its sole remedy for a failure of the clauses contemplated in Section 8.8 to occur. Non-payment of the Default Fee once awarded by the court will compound at a rate of 10% monthly.
9. Warranties, Indemnification and Limitation on Damages
9.1 Disclaimer of Warranties. Except as otherwise expressly provided herein, all services or products provided by FMD are provided without warranty of any kind, whether express, implied or arising from custom, course of dealing or trade usage, any implied warranties of non-infringement, merchantability or fitness for a particular purpose.
9.2 Indemnification. Each party agrees to indemnify and hold the other harmless from any and all claims, liabilities, damages, taxes, fines, repayment obligations, or expenses, including court costs and reasonable attorney fees (collectively, “Claims”), arising from any act or omission by the indemnifying party or its employees or agents (excepting the indemnified party), or from the indemnifying party’s material breach of this Agreement. Without limiting the generality of the foregoing, Provider expressly agrees to indemnify and hold FMD harmless from any and all Claims arising from any other professional services provided by or on behalf of Provider or any other work Provider may engage in outside of this Agreement.
9.3 Limitation of Liability. Neither FMD nor Provider shall be liable for, nor shall any measure of damages include, any indirect, incidental, special, exemplary, punitive or consequential damages or amounts for loss of income, profits or savings, loss of data arising out of or relating to its performance or failure to perform under this Agreement, even if the party against whom liability is sought to be imposed has been advised of the possibility of such damages or loss; provided, however, that the limitations of liability set forth this paragraph shall not apply to (i) Provider’s obligations set forth in Section 8, or (ii) the reciprocal obligations of indemnification set forth in Section 9.2.
10.1 Force Majeure. Neither party shall be responsible for any damages, delay in performance or failure to perform by Provider or FMD, if caused by any act or occurrence beyond its reasonable control such as embargoes, changes in government regulations or requirements (executive, legislative, judicial, military or otherwise), acts of war or terrorism, power failure, electrical surges or current fluctuations, lightning, earthquake, flood, the elements or other forces of nature, delays or failures of transportation, or acts or omissions of telecommunications common carriers. In particular, without limitation, neither Provider nor FMD shall be responsible for any interruption in Services caused by an interruption in or failure of Internet services.
10.2 Amendment. This Agreement may be amended only by a writing that is signed by both parties.
10.3 Assignment. FMD may, in its sole discretion, assign this Agreement to any entity that succeeds to some or all of the business of FMD through merger, consolidation, or sale of some or all of the assets of FMD, or any similar transaction. Provider acknowledges that the services to be rendered to FMD are unique and personal and therefore Provider may not assign any rights or obligations under this Agreement.
10.4 Successors and Assigns. Subject to Section 10.3, the provisions of this Agreement shall be binding upon the parties hereto, upon any successor or assign of FMD, and upon Provider’s heirs and the personal representative of Provider’s estate.
10.5 Waiver. Any waiver by either party of compliance with any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement or of any subsequent breach by a party of the same or another provision of this Agreement. Any delay or failure by either Party to assert a right under this Agreement shall not constitute a waiver by said Party of any right hereunder, and either Party may subsequently assert all of its rights hereunder as if the delay or failure had not occurred. No waiver by FMD shall be valid unless in writing and signed by an authorized representative of FMD.
10.6 Severability. If any one or more of the provisions (or portions thereof) of this Agreement shall for any reason be held by a final determination of a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions (or portions of the provisions) of this Agreement, and the invalid, illegal, or unenforceable provision shall be deemed replaced by a provision that is valid, legal, and enforceable and that comes closest to expressing the intention of the parties.
10.7 Governing Law, Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to the conflict of law provisions thereof. Any dispute, claim or controversy arising out of or related to this Agreement shall be resolved by binding arbitration by a single arbitrator in New York, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. Judgment upon the arbitration award shall be final, binding and conclusive and may be entered in any court having jurisdiction. If for any reason Provider performs Services under this Agreement outside of the United States, Provider agrees to submit to the jurisdiction of, be accountable to, and remain in compliance with, all applicable state and federal law, rules, regulations or executive orders of any U.S. or foreign government, agency or authority, and accreditation authorities including but not limited to the American Medical Association.
10.8 Counterparts. This Agreement may be executed by facsimile signature and by either of the parties in counterparts, each of which shall be deemed to be an original, but all such counterparts shall constitute a single instrument.
10.9 Notices. All notices, requests, or other communications hereunder shall be in writing and either transmitted via facsimile, overnight courier, hand delivery or registered mail, postage prepaid and return receipt requested, to the parties at the address listed below their respective signatures or such other addresses as may be specified by written notice. Notices shall be deemed to have been given when received or, if delivered by registered mail, five days after posting.
10.10 Equitable Relief. The parties acknowledge that their remedies at law for any breach or threatened breach of this Agreement may be inadequate. Therefore, a party shall be entitled to seek injunctive and other equitable relief restraining a party from violating this Agreement, in addition to any other remedies that may be available to it under this Agreement or applicable law.
10.11 Entire Agreement. This Agreement, including any attached Exhibits, schedules and appendices (which are hereby incorporated into the Agreement), constitutes the entire agreement between the parties hereto with respect to its subject matter and there are no other representations, understandings or agreements between the Parties relating to such subject matter.
10.12 Services Provided Prior to Effective Date. Except with respect to compensation, the Parties acknowledge that any Services provided by Provider prior to the Effective Date of this Agreement are covered by the terms herein.
10.13 Survival. The provisions of this Section, Sections 2.4, 4, 6.3, 7.2, 8, 9 and 10 shall survive termination of this Agreement for any reason.