Gaidge, LLC (“Gaidge) is a performance monitor that keeps a practice informed of critical financial numbers and other key performance indicators. Information for Gaidge’s use is automatically collected through the practice’s management system and moved to Gaidge’s website, saving hours of staff time collecting end of the month information and organizing it into a meaningful and concise format.
Gaidge provides a consistent means of evaluating a practice each month that will offer industry benchmarks for comparison and alert the orthodontist when the practice is outside of an acceptable range. Practices will also enjoy the opportunity to compare statistics with other regional and national averages of practices who participate in Gaidge for a current evaluation of what’s happening in the industry. Gaidge will encompass information from practices across multiple practice management software systems.
The “Agreement” or “this Agreement” as referenced herein includes the Service Agreement entered into between the parties, the Business Associate Agreement entered into between the parties, if applicable, these Terms and Conditions, and any other documents attached to the Service Agreement.
Gaidge, LLC will be referred to as “Gaidge.” The orthodontic practice contracting with Gaidge will be referred to as “Orthodontist.” Gaidge and Orthodontist will collectively be referred to as the “parties.”
Terms and Conditions:
1. The Services.
1.1 WebSite. The services provided by Gaidge under this Agreement (the “Services”) are to be facilitated via the Internet at www.Gaidge.com. Gaidge shall provide Orthodontist with a user ID and Password that will grant Orthodontist access to the site’s functions. Gaidge will provide detailed instructions to Orthodontist on how to use the site.
1.2 Telephonic Support. Gaidge will provide telephonic support to Orthodontist during Gaidge’s normal business hours to answer questions and provide assistance in connection with the provision of the Services. 1.3 Practice Management Software Requirement/Support. Gaidge is only available to users of participating practice management software platforms. It is understood that if Orthodontist switches to a software platform that does not provide Gaidge with the necessary analysis data, Gaidge services will no longer be available to Orthodontist.
1.4 Additional Services. The parties may agree from time to time for Gaidge to perform additional services and functions. A description of any such additional services, and the fees relating thereto, shall be attached to this Agreement as an addendum hereto and signed by each party. The performance of any such additional services shall be governed by this Agreement. Services outside the scope of this Agreement will be provided pursuant to a separate agreement.
2. Control of Services. The method and means of providing the Services shall be under the exclusive control, management and supervision of Gaidge. Gaidge may, in its sole discretion take the following actions: (i) change locations where its work functions are performed; (ii) perform its obligations through its subsidiaries or affiliates, or through the use of Gaidge-selected independent subcontractors, provided, however, that Gaidge shall not be relieved of its obligations under this Agreement by the use of such subsidiaries, affiliates or subcontractors; (iii) modify or replace work processes or technology relating to the Services; (iv) from time to time initiate changes in order to improve, modify or migrate the Services; and (v) from time to time consolidate or transfer any or all of the Services being provided hereunder into any facility or facilities selected by Gaidge and relocate the personnel, equipment and other resources used in providing the Services.
3. Payment for Services.
3.1 ACH or credit card draft must be authorized by due date. Any draft rejected by client’s bank shall be subject to late charges as follows.
(a) one and one half (1.5)% percent per month of
the overdue amount, or (b) the maximum amount permitted under
applicable law. 3.2 Attorney’s Fees. In the event Gaidge is required to hire an attorney or take legal action to collect any invoice under this Agreement, Gaidge shall receive its reasonable attorneys’ fees and expenses in addition to the amount due.
4. Right to Perform Services for Others. Gaidge may, in its sole discretion, perform services similar to the Services for other Gaidge clients, and this Agreement does not prevent Gaidge from using any of its personnel, equipment, facilities or technology for such purposes.
5. Use of Practice Information.
5.1 Authorization for Release and Distribution of Practice Information. Orthodontist authorizes Gaidge to gather information on the performance of Orthodontist from Orthodontist’s practice management system that will be compiled with other practice data for the purpose of calculating regional and national industry averages and trends. These averages will be shared with other Gaidge subscribers across multiple practice management software platforms. Orthodontist’s practice name and location will not be released with the regional and national comparison data. Gaidge will not make any comparison data available until there are enough practices subscribing to Gaidge services in that demographic to keep the data anonymous. Orthodontist perpetually waives and releases any claim of privacy or confidentiality as to practice information transmitted and used pursuant to this Section 5.1.
5.2 Restrictions on Disclosure. Specific practice information transmitted from Orthodontist to Gaidge shall be held by Gaidge in confidence, shall be used by Gaidge and its employees and agents only for the purposes set forth in this Agreement, and shall not be disclosed without the prior consent of Orthodontist, unless disclosure is required by law. The information transmitted from Gaidge to Orthodontist shall be held by Orthodontist in confidence, shall be used by Orthodontist and his/her employees and agents only for the purposes set forth in this Agreement, and shall not be disclosed without the prior written consent of Gaidge, unless disclosure is required by law.
5.3 Business Associate Agreement. Orthodontist understands that its relationship with Gaidge may constitute a "Business Associate" relationship as that term is used in the "Administrative Simplification" provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191 and regulations promulgated thereunder by the U.S. Department of Health and Human Services (HHS) and that Gaidge may be entering into one or more contractual relationships with Business Associates who will or may have access to the information provided by Orthodontist. Orthodontist consents to Gaidge and each of its Business Associates having such access as its agent, provided that Gaidge and each of its Business Associates agree that, at such time as it is required by law, they will enter into a Business Associate Agreement and, if appropriate, a Chain of Trust Agreement with Orthodontist or, if the person is Gaidge's Business Associate, with Gaidge, in whatever form appropriate to comply with regulations addressing the privacy and security of patient health information that may be promulgated in final form by HHS.
6. Proprietary Rights. Gaidge retains all right, title and interest, including any and all intellectual property rights therein, in and to any and all Gaidge Technology (as hereinafter defined). Gaidge’s use on Orthodontist’s behalf of any pre-existing software and documentation owned by and/or licensed from a third party by Gaidge shall be governed by the then-current written license agreement required by such third party. For purposes hereof, “Gaidge Technology” means Gaidge’s (or its licensors’) proprietary information, data, technology, methods and methodologies, processes, know-how, algorithms, tools, development tools, templates, software code, documentation, tools, software and interfaces, trade secrets, works of authorship and other proprietary materials, and all patented or patentable work that are owned, developed, or licensed by Gaidge (or its licensors) and used by Gaidge in the performance of the Services, including, without limitation, any and all Innovations (as hereinafter defined). For purpose hereof, “Innovations” means any and all inventions, developments, innovations, findings, discoveries, formulae and trade secrets, created or made by Gaidge in the course of providing the Services, including all patents, copyrights, trademarks, trade secrets or know- how embodied therein or otherwise pertaining thereto.
7. Noncompetition. Orthodontist agrees that for a period commencing on the date of this Agreement and ending two (2) years after the termination of this Agreement, Orthodontist and its affiliates will not utilize Gaidge Technology, Innovations, or any other information provided to Orthodontist pursuant to this Agreement in order to establish, own, operate, manage or control any business that (i) is engaged in the business of providing services substantially similar to the Services and (ii) competes with the business of Gaidge. In the event that any provisions in this section shall be determined to be unenforceable, it shall be interpreted to extend only over the maximum period of time, geographic area or range of activities as to which it may be enforceable. Orthodontist acknowledges that the breach of this Section 7 may give rise to irreparable injury to Gaidge. Accordingly, in the event that Orthodontist breaches, or threatens to breach the provisions of this Section 7, Gaidge shall be entitled to injunctive or other equitable relief. Gaidge shall also be entitled to its reasonable attorney’s fees incurred as a result of Orthodontist’s breach or threatened breach of this Section 7.
8. Warranties and Representations.
8.1 General Representations and Warranties. Each party represents and warrants to the other party that: (i) it has all requisite power and authority to execute this Agreement and to perform its obligations hereunder; (ii) the execution, delivery and performance of this Agreement have been duly authorized; (iii) it will comply with all federal, state and local laws and regulations applicable to the transactions contemplated by this Agreement; (iv) it has obtained all permits, rights and licenses required for the transactions contemplated by this Agreement; and (v) this Agreement is a valid and binding agreement enforceable in accordance with its terms. 8.2 Representations
and Warranties of Gaidge. Gaidge represents, warrants and covenants to Orthodontist that: (i) the Services will be performed in a professional and workmanlike manner by qualified and properly trained personnel; (ii) in connection with providing the Services, Gaidge shall comply with all applicable federal, state, and local laws and regulations and has obtained all applicable permits, rights, and licenses; and (iii) Gaidge shall perform its responsibilities under this Agreement in a manner that does not infringe on the intellectual property rights of any person. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, GAIDGE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OR WHETHER ARISING BY OPERATION OF LAW, COURSE OF PERFORMANCE OR DEALING, CUSTOM, USAGE IN THE TRADE OR PROFESSION OR OTHERWISE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.1 Indemnification by Orthodontist. Orthodontist shall indemnify, defend and hold harmless Gaidge, each officer, director, employee or agent thereof, their respective controlling persons, and their respective estates, successors and assigns, from and against any and all claims, losses, damages, liabilities and expenses (including, without limitation, settlement costs and any legal or other expenses for investigating or defending any actions or threatened actions) reasonably incurred by any of them as a result of: (i) the untruth, inaccuracy or breach of any representation or warranty made by Orthodontist in this Agreement; or (ii) the nonfulfillment or breach of any covenant, agreement or obligation of Orthodontist contained in this Agreement.
9.2 Indemnification by Gaidge. Gaidge shall indemnify, defend and hold harmless Orthodontist and his or her estate, successors and assigns, from and against any and all claims, losses, damages, liabilities and expenses (including, without limitation, settlement costs and any legal or other expenses for investigating or defending any actions or threatened actions) reasonably incurred by any of them as a result of: (i) the untruth, inaccuracy or breach of any representation or warranty made by Gaidge in this Agreement; or (ii) the nonfulfillment or breach of any covenant, agreement or obligation of Gaidge contained in this Agreement.
10. Limitation on Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WHETHER IN TORT, CONTRACT, OR OTHERWISE SHALL GAIDGE OR ITS OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS BE LIABLE TO ORTHODONTIST OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS EVEN IF GAIDGE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL GAIDGE’S TOTAL LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THE FEES PAID TO GAIDGE FOR THE SERVICES.
11.1 Severability. If any provision of this Agreement should be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be deemed restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.
11.2 Survival. The provisions of Sections 6, 7, 9, 10 and 11 shall survive the termination of this Agreement for any reason.
11.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to the conflicts of laws provisions thereof. The parties, by their execution hereof, irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Gainesville, Hall County, Georgia for the purpose of any action, claim, cause of action or suit, inquiry, proceeding or investigation arising out of or based upon this Agreement or relating to the subject matter hereof. The parties consent and waive any objection to venue based on the grounds of forum non conveniens, which it may now or hereafter have to the brining of any action, claim, cause of action or suit, inquiry, or proceeding in such jurisdiction.
11.4 Notices. Whenever one party is required or permitted to give notice to the other, such notice shall be deemed given: when delivered by hand; one day after being given to an express courier with a reliable system for tracking delivery; when telecopied or faxed and receipt confirmed; or three (3) days after the day of mailing when mailed through United States mail, registered or certified mail, return receipt requested, postage prepaid. The addresses for delivery of notices are set forth in the parties’ Service Agreement.
11.5 No Third Party Beneficiaries. This Agreement is entered into solely for the respective benefit of the parties and their respective successors and assigns, and nothing in this Agreement will be construed as giving any entity other than the parties to this Agreement, persons and entities expressly indemnified hereunder and their respective successors and permitted assigns, any right, remedy or claim under this Agreement. 11.6 Relationship of the Parties. The parties shall be deemed independent contractors with respect to all performance rendered under this Agreement Neither Gaidge nor its employees shall be considered employees or agents of Orthodontist for any purpose. Neither party shall have the authority to bind or make commitments on behalf of the other party for any purpose, and neither shall hold itself out as having such authority. Gaidge shall have sole responsibility for the supervision, daily direction and control, payment of salary (including withholding of income taxes and social security), worker’s compensation, disability benefits and the like of Gaidge personnel.
11.7 Force Majeure. Neither party shall be responsible for any delay or failure in performance resulting from acts beyond their control including but not be limited to an act of God; an act of war, sabotage or terrorism; a riot or other civil disturbance; outages of electrical, telecommunications or computer server services provided by third parties; an epidemic, fire, flood, extreme weather condition, or other disaster; an act of government; delays in transit or delivery; or labor shortage, labor unrest, strike or lockout; provided that, in order to be excused from delay or failure to perform, such party must act diligently and reasonably to remedy the cause of such delay or failure.
11.8 Entire Agreement. This Agreement constitutes the entire and final and exclusive statement of the agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous discussions, communications, negotiations and agreements, written or oral, with respect to the subject matter hereof. There are no representations, warranties, understandings or agreements relating to the subject matter hereof which are not fully expressed in this Agreement. No amendment, modification, waiver or discharge of this Agreement shall be valid unless in writing and signed by an authorized representative of the party against whom such amendment, waiver or discharge is sought to be enforced.
11.9 Assignment. Orthodontist shall not assign or otherwise transfer its rights and/or obligations under this Agreement without the written consent of Gaidge.
11.10 Headings. The section and subsection headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
11.11 Counterparts. This Agreement may be executed in counterparts, including counterpart transmitted by facsimile, each of which shall be deemed an original, and all such counterparts shall constitute one and the same agreement.