Management Services Agreement
THIS MANAGEMENT SERVICES AGREEMENT (“Agreement”) is entered into effective as of the date upon which I (the “Clinician”) began my subscription (the “Effective Date”), by and between myself (the “Clinician”) and My Kid Blooms LLC (DBA “Branchly”) (The foregoing parties, collectively, the “Parties” and each a “Party”). Clinician agrees to all terms and conditions described in this Agreement now and in future revisions that are updated on this website and disseminated to all Members via the email on the Clinician’s profile.
RECITALS:
A. Branchly is engaged in the business of providing marketing, business and administrative support services, including online business profiles, creation, distribution and/or sale of digital content, and telehealth operational consultation as well as other management services (the “Management Services”).
B. Clinician desires to engage Branchly to provide the Management Services on behalf of Clinician, and Branchly desires to provide the Management Services upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and for their mutual reliance, the parties hereto agree as follows:
Services: Branchly hereby agrees to provide the Management Services as set forth in this Agreement as outlined in Exhibit A, and agrees to provide such Management Services in Exhibit A in accordance with and subject to the terms and conditions contained in this Agreement.
Independent Contractors: Branchly shall at all times be acting and performing as an independent contractor of Clinician, and no provision of this Agreement shall be construed or deemed to create a relationship of employment, partnership, franchise, or joint venture among the Parties. Branchly shall have the authority to act as the agent of the Clinician to the extent necessary to fulfill Branchly’s obligations under this Agreement. No Party, nor any other person performing services on behalf of either Party pursuant to this Agreement, shall have any right or claim against the other Party under this Agreement for social security benefits, workers’ compensation benefits, disability benefits, unemployment insurance benefits, health benefits, vacation pay, sick leave, or any other employee benefits of any kind.
Exclusive Control of Practice by Clinician: Clinician shall be solely and exclusively in control of all aspects of the practice of medicine and the provision of professional clinical services. Branchly shall neither have nor will exercise any control or direction over the methods by which the Clinician or its employees practice medicine or exercise their professional medical judgment. Clinician shall be responsible for ensuring that it possesses all permits and licenses necessary for it to own and operate the medical practice and to ensure professional working for Clinician satisfy the qualifications and standards required in their profession. In no way shall My Kid Blooms be responsible for medical care provided by Clinician and Clinician shall indemnify and hold harmless Brafor any claim that arises regarding clinical care given to patients.
Compliance with Applicable Laws: In performing their respective duties and obligations hereunder, the Parties shall comply in all material respects with all applicable federal, state and municipal codes, ordinances, rules, regulations and other requirements of law now in force or which may hereafter be in force.
Duties of Clinician Provider:
Clinician must provide Branchly with a current personal profile and ensure that the profile shown on branchly.com is accurate (e.g. professional title, education, specialty, etc). Any changes in their professional status (e.g. availability) should be updated as soon as possible and within thirty (30) days of changes.
Clinician must - at all times - be currently licensed/certified/registered in their jurisdiction to practice the profession for which they are advertising content and services without restrictions. If there are any changes to Clinician’s title, licensure or registration, Clinician must inform Branchly as soon as possible and within five (5) days of any changes remove themselves from Branchly if they are no longer legally capable of providing advertised services.
Clinician must be offering services that are within their Scope of Practice as defined by Clinician’s professional regulatory board in their jurisdiction. It is Clinician’s responsibility to ensure that all services and content marketed on branchly.com are in line with their professional ethical and regulatory laws.
Clinician must abide by all laws and rules for providing telehealth in their jurisdiction including, but not limited to:
receiving informed consent of the client prior to commencing services,
establishing a HIPAA Business Associate Agreement (BAA) with telehealth software provider and/or online scheduling platform, and
storing medical records for the appropriate time period as outlined by law if required by Clinician’s professional license/registration.
Clinician must not have a history of felony criminal charges including, but not limited to fraud, malpractice or child endangerment in their jurisdiction or any other jurisdiction in the United States of America or abroad. Clinician must immediately inform Branchly if any such charges are put forward on them.
Clinician carries professional liability insurance for any clinical work performed.
Clinician provides Branwith a link to a HIPAA-compliant online scheduling platform if this will be on Clinician’s public-facing profile,
Clinician agrees to participate and pay for the Membership Package of choice throughout the terms of the Agreement as delineated in this contract.
Clinician agrees to the terms and conditions related to the creation, ownership, use and social sharing of content set forth in section 6.
Clinician agrees to allow sharing of all digital content created or co-created by Branchly that is related to Clinician on Branchly’s social media.
Clinician agrees to share on social media all digital content related to Clinician that is featured on Branchly's social media channels (without editing or altering the same), unless the parties specifically agree that a particular piece of digital content will not be sharable.
Clinician can create a link on their company's social media and website back to branchly.com in order for Clinician's clients to view Clinician's digital content and profile.
Content: With respect to content created in whole or in part by Branchly hereunder and/or content created by Clinician for use hereunder, the parties acknowledge and agree as follows:
Branchly Content: The parties acknowledge and agree that Branchly may create content to be distributed on Clinician’s behalf for purposes of marketing, sales and patient education, including, without limitation, recorded interviews, written content, educational videos, webinars, marketing videos, podcasts and the like (the “Branchly Content”). The parties further acknowledge and agree that the Branchly Content may embody Clinician’s contributions, including dialogue, voice, performance, illustrations, diagrams, and the like (hereinafter, “Clinician Contributions”). In connection, Clinician hereby acknowledges and agrees that Branchly shall be the sole and exclusive owner throughout the world in perpetuity of all rights in and to the Branchly Content, including all known or hereafter existing rights of any kind and character whatsoever, without any restrictions, limitations or reservations, it being understood that all Clinician Contributions, as embodied in the Branchly Content, shall, from the inception of their creation, be deemed “works made for hire” for Branchly by Clinician within the meaning of the U.S. Copyright Act. If it is determined that any Clinician Contributions as embodied in the Branchly Content are not deemed “works made for hire”, they will be deemed irrevocably assigned to Branchly by this Agreement, together with all rights therein and thereto. Consequently, Branchly and its designees shall have the unlimited, perpetual and exclusive right to use, reproduce, distribute, edit, prepare derivative works of, display, and perform the Branchly Content (including any Clinician Contributions therein) in any media format, and through any media channels, whether now known or hereafter devised, including, without limitation, the branchly.com website, third party online players and media channels, and social media.
Clinician Content. In connection with the services rendered by Branchly hereunder, Clinician may independently create content to be used or distributed hereunder for purposes of marketing, sales and patient education, including, without limitation, recorded interviews, written content, educational videos, “healthinars,” webinars, marketing videos, podcasts and the like that it wishes to be marketed and/or distributed hereunder (hereinafter the “Clinician Content”). As between Clinician and Branchly all rights in and to the Clinician Content, including the worldwide and perpetual copyrights therein and thereto shall be and remain Clinician’s sole and exclusive property.
Clinician License to Use Clinician Content: Clinician hereby grants Branchly and its designees during the Term hereof a worldwide, perpetual, sub-licensable and transferable license to use, reproduce, distribute, edit, prepare derivative works of, display, and perform the Clinician Content in any media format, and through any media channels, whether now known or hereafter devised, including, without limitation, the mykidblooms.com website, third party online players and media channels, and social media.
Clinician Representations and Warranties: Clinician represents and warrants, as of the date that Clinician provides any Clinician Content and/or Clinician Contributions to Branchly:
(i) Clinician is the sole and exclusive owner of the Clinician Content and/or Clinician Contributions, and all rights therein and thereto, and has the full right and authority to enter into this Agreement and grant the rights herein granted;
(ii) Clinician has the required qualifications, credentials, and expertise (including education, training, knowledge, and skill sets) to provide and disseminate the information contained in the Clinician Content or Clinician Contributions;
(iii) The Clinician Content and Clinician Contributions, and the materials embodied therein, are not and shall not be imitations or copies, and shall not infringe on any common law, statutory law or other rights of any person, firm or corporation;
(iv) The Clinician Content and Clinician Contributions shall contain no inappropriate, offensive, racist, hateful, sexist, pornographic, false, misleading, incorrect, infringing, defamatory or libelous content or information;
(v)Clinician fully discloses any conflicts of interest arising by virtue of the use or display of products, methodologies, techniques, medical devices, pharmaceutical products, or the like in any Clinician Content and/or Clinician Contributions;
(vi) during the Term, and with respect to its own exploitations of Clinician Content (if any), Clinician shall not charge a higher price for such content than the price charged on any Branchly platform, and
(vii) except as otherwise specifically provided herein, Branchly shall have no obligation to pay any person, firm or corporation any amounts in connection with the exercise of any of its rights hereunder.
Branchly's Obligations:
Qualifications and Credentials: At all times during the Term, Branchly shall be a professional corporation in good standing under the laws of the State of Texas.
Billing & Invoicing Information: Branchly shall provide automated notifications of payments according to the selected subscription plan. Such invoice shall be paid by Clinician within seven (7) days of notification of payment due or profile will be discontinued on mykidblooms.com. All fees are non-refundable.
Fair Market Value: The Parties acknowledge and agree that the fees represents fair market value negotiated between the Parties in arms’ length negotiations, in light of, among other factors, the considerable expenses and business risks to be incurred by Branchly in providing Management Services under this Agreement, and the valuable expertise and proprietary know-how that Branchly has developed in providing Management Services and that will be made available to Clinician under this Agreement. At no time do fees paid by Clinician to Branchly relate to the value or volume of referrals back and forth between the parties.
Term: The initial Term shall be according to the selected subscription plan commencing as of the Effective Date (the “Initial Term”). Thereafter, this Agreement shall be automatically extended for successive periods according to the same subscription plan (the “Renewal Terms”) unless either Clinician or Branchly has submitted written notification of its intention not to renew such then-current Initial Term or Renewal Term, as applicable, to the other Party or earlier terminated as hereinafter provided. The Initial Term and each Renewal Term, as applicable, shall constitute the “Term” of this Agreement.
Termination:
The Term of this Agreement may be terminated without cause at any time by either party upon at least thirty (30) days’ prior written notice to the other party.
Clinician can opt to not renew subscription until the day of the automatic renewal occurs per the terms in the selected subscription.
In the event of a material breach of or material default under this Agreement by either party, the affected party may provide written notice to breaching party (the “Default Notice”) specifying the nature of the material breach or material default. The non-breaching party may terminate the Term of this Agreement if the breaching party fails to cure such material breach or material default within thirty (30) days after the date on which the notice is given.
Upon the expiration or earlier termination of the Term of this Agreement,
the Parties shall thereafter be automatically relieved and released from all further liabilities and obligations hereunder, except for liabilities and obligations accruing prior to the expiration or earlier termination, and any revenue sharing obligations continuing thereafter.
All active links and webpages created or hosted by Branchly for Clinician will be removed upon termination unless in Branchly’s sole discretion it determines to keep them active for a period of time.
Assignment: This Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective legal representatives, successors, and assigns. Neither Party may assign this Agreement nor any rights hereunder, nor may it delegate any of its duties to be performed hereunder, without the prior written consent of the other Party; provided, however, that notwithstanding the foregoing sentence to the contrary, Manager shall have the right to assign this Agreement to any affiliates of Manager and shall have the right to subcontract with any responsible parties, including affiliates of Manager, for the performance of various aspects of its obligations hereunder.
Entire Agreement: This Agreement and the exhibits attached hereto, and other agreements referenced herein constitute the entire agreement of the parties and supersedes any or all written or oral agreements, representations or understandings with respect to the subject matter contemplated by this Agreement. No modification, amendment or alteration to this Agreement shall be effective unless in writing and signed by each Party.
Confidentiality: The parties may provide each other with confidential information and trade secrets, including without limitation, information on their respective organization, business, finances, personnel, services, systems, pricing structure, proprietary products and processes, transactions and/or business relations (collectively, the "Information"). The term "Information" shall not include (i) information generally available to the public through no fault of the other Party, (ii) information which the other Party already had knowledge of, or (iii) information which has become part of the public domain through no fault of a Party. Each Party agrees to retain in confidence at all times and to require its employees, consultants, professional representatives and agents to retain in confidence all information disclosed by the other Party. Each Party shall only use the other's information solely for the purpose of performing obligations under this Agreement, and only disclose the Confidential Information on a need-to-know basis, provided that, such party shall be liable for the acts of any third party who obtains the Confidential Information from such party. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis. Further, the receiving Party may disclose information to the extent ordered to be disclosed by subpoena, other legal process or requirement of law, after first giving the disclosing Party a reasonable opportunity to contest such disclosure requirement.
Injunctive Relief: Each Party acknowledges and agrees that any use or disclosure of Confidential Information by the Party in a manner inconsistent with the provisions of this Agreement may cause another Party harm which will not be compensable by monetary damages alone and, accordingly, such other Party will, in addition to other available legal or equitable remedies, be entitled to seen an immediate injunction restraining the disclosing Party from committing or continuing to commit a breach. A Party may avail itself of injunctive relief in addition and without prejudice to any other remedies available to it. Sections 11 and 12 will survive the termination or expiration of this Agreement.
Disclaimer: EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES AND EACH PARTY HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
LIMITATION OF LIABILITY. THE PARTIES AGREE THAT IN NO EVENT SHALL MY KID BLOOMS OR Clinician BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY (I) BE LIABLE FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES ARISING OUT OF THE TERMINATION OF THIS AGREEMENT, OR (II) BE LIABLE FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, THAT EXCEED THE AMOUNTS REQUIRED TO BE PAID BY EITHER PARTY TO THE OTHER HEREUNDER. THE PARTIES FURTHER AGREE THAT FOR AMOUNTS PAYABLE UNDER SECTION 7 (INDEMNIFICATION) OR SECTION 8 (CONFIDENTIALITY) HEREUNDER, EITHER PARTY'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE SUM OF ($5,000.00). THE FOREGOING NOTWITHSTANDING, AS BETWEEN THE PARTIES AND ANY PARTNER AND/OR VENDOR OF THE RESPECTIVE PARTIES, NOTHING IN THIS AGREEMENT SHALL CONFER ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES OF ANY NATURE FOR ANY REASON BY THE PARTIES AGAINST SUCH PARTNER AND/OR VENDOR USED BY THE PARTIES TO PROVIDE AND/OR SUPPORT THE PARTY'S RESPECTIVE PRODUCTS AND/OR SERVICES.
Governing Law and Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, venue in Travis County. In the event of any litigation or arbitration arising out of this Agreement or a default hereof, the non-prevailing party shall reimburse the prevailing party for out-of-pocket costs and fees incurred through trials, arbitration and appeals, including without limitation, its reasonable attorney fees, court costs, bonds, and witness fees.
Headings: The paragraph headings set forth in this Agreement are for the purposes of convenience only and shall have no bearing whatsoever on the actual content or interpretation of this Agreement.
Severability: In the event that any provision or part of any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the remaining parts or provisions of this Agreement which shall continue in full force and effect.
Notices: Any notice or other communication required or permitted by this Agreement shall be in writing and shall be delivered personally, or by United States first class mail or reputable private carrier service, fees prepaid, certified or registered, return receipt requested, or by facsimile with return receipt requested, addressed to the respective address first set forth above or to such other addresses or persons or names as may be furnished from time to time in writing by the Parties. If personally delivered, such notice shall be effective upon delivery. If mailed or delivered by private carrier in accordance with this Section, or sent by facsimile with receipt confirmation, such notice shall be effective as of the date indicated on the return receipt whether or not such notice is accepted by the addressee.
Force Majeure: Neither Party shall be liable for any failure, inability or delay to perform hereunder, if such failure, inability or delay is due to any cause beyond the reasonable control of the Party so failing, and due diligence is used in curing such cause and in resuming performance.
Access to Records: Each Party agrees to generate and retain such records and make such disclosures as may be required, from time to time, by Medicare or other federal or state healthcare program with respect to this Agreement and the rendition of services hereunder, in order to assure satisfaction of all requirements for participation and payment associated with such programs.
Dispute Resolution: The Parties shall use good faith negotiation to resolve any claim, controversy, dispute or disagreement between the Parties through the use of informal discussions and mediation, the expenses split among the parties. In the event of any Dispute that the Parties are unable to resolve after mediation, the parties shall submit such Dispute to binding arbitration administered by the American Arbitration Association (“AAA”) and select arbitrators to hear and decide such Dispute. Each Party shall promptly select one arbitrator. The two arbitrators so chosen shall then promptly select a third arbitrator who is experienced in the matter or action that is subject to such arbitration. If such matter or action involves health-care issues, then the third arbitrator shall have such qualifications as would satisfy the requirements of the American Health Lawyers Association Alternative Dispute Resolution Service.
Counterparts: This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The exchange by the Parties of copies of this Agreement and executed signature pages hereto by facsimile or other electronic transmission shall constitute effective execution and delivery of the Agreement and may be used in lieu of the original thereof for all purposes. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart executed by the Party against whom enforcement of this Agreement is sought.
Exhibit A
Branchly may provide or arrange for the following Management Services described in this Exhibit A as requested by Clinician. Each Clinician may use some or all of the following services, and whatever services are used shall be invoiced monthly and such services outlined in the invoice from Branchly to Clinician provider. Depending on which Membership Plan Clinician chooses will outline the level of services provided. Such services may include:
Marketing, Advertising and Public Relations: Branchly may provide marketing services through the community, online or via Branchly’s social media platforms on behalf of the Clinician. Such marketing efforts may include webinars, videos, blogs, posts on Branchly's social media channels, biographies on individuals, or any other marketing services for the purposes of patient education or sales.
Hosting and Storage of Data: Branchly may store or manage digital content for Clinician practice on a cloud-based or other such storage mechanism that Branchly so chooses fits Clinician Practice. Such hosting or storage will be charged on a subscription basis.
Digital Content Creation and Sales: Branchly may assist in the creation of videos or other digital content created solely for Clinician Practice.
Telehealth Consulting: Branchly may offer assistance in the form of operational consulting and sample paperwork/policies associated with telemedicine/telehealth for Clinician providers. The Clinician is responsible for selecting, editing and managing any sample paperwork provided by Branchly in accordance with the ethics, laws and regulations of their professional Board. Branchly does not take responsibility for any paperwork/policies that the Clinician elects to utilize in their practice.
Business Forms: Branchly may develop and design operational forms, records and documents as reasonably necessary for the administration and operation of the Clinician practice at Clinician’s site and as requested by Clinician.
Clinician acknowledges that some telehealth software companies have made arrangements with Branchly's offering the providers in the Branchly Ecosystem discounts and/or referral incentives for Branchly. Providers in the Ecosystem are not obligated to choose one of the software companies that Branchly has partnered with although they are aware that this discount is available to them via the Branchly Ecosystem Membership.