Terms and Conditions
1. The Agreement. The ABCredit Program is offered by American Benefit Credit, Incorporated. The doctor and any individuals associated with the doctor/practice listed on the ABCredit Registration Form are collectively referred to as the “Doctor”. These Terms and Conditions of the ABCredit Program are attached to, and incorporated by reference in, the ABCredit Registration Form completed and executed by the Doctor. The ABCredit Registration Form and these Terms and Conditions of the ABCredit Program are collectively referred to as the “Agreement.”
2. Marketing. The Doctor agrees to make the financing program (the “ABF Program”) available to all of the Doctor’s patients regardless of race, color, sex, age, disability, religion, national origin or marital status.
3. Patient’s Fee. As directed by the Doctor, the Doctor will receive the patient’s fee from ABCredit by direct deposit (provided that the Doctor has submitted a Direct Deposit Form to ABCredit) or by check. The Fee Program is a non-recourse program for the Doctor, meaning that ABCredit will not seek repayment from the Doctor if the patient fails to repay the loan. However, if a patient does not use a loan or if the procedure is not performed after the fee has been disbursed to the Doctor, then, upon the request of ABCredit, the Doctor will promptly return the amount of such fee to the ABCredit less incurred costs.
4. Customer Service Inquiries. Neither party will attempt to answer inquiries concerning the other party’s products and services. Each party will refer inquiries concerning the other party’s products and services to the customer service telephone numbers provided by such other party. Such other party will use reasonable efforts to address such inquiries in a timely and effective manner.
5. Intellectual Property. Before re-publication of ABCredit's newsletters, or any portions thereof, the Doctor will either obtain the written consent of ABCredit or will sign a separate agreement related to the re-publication of ABCredit's intellectual property.
6. Web site Links. Before creating any links from the Doctor’s web site to ABCredit’s web site, the Doctor and ABCredit, Inc will sign a separate link exchange agreement.
7. Patient Information. The Doctor may, with a patient’s written consent, 1) complete and send to the ABCredit applications for the loans (each, a “ABCredit Application”) and 2) receive Truth In Lending disclosures related to the ABCredit loans on behalf of patients seeking financing through ABCredit. The Doctor agrees to maintain the patient’s written consent for a period of no less than seven (7) years and further agrees to provide the original or a copy of this written consent to ABCredit upon ABCredit's request within 24 hours of the request. In connection with such activity, the Doctor represents and warrants that it maintains patient records in accordance with the information security and privacy provisions of the Health Insurance Portability and Accountability Act of 1996 and any regulations promulgated there under (“HIPAA”). Upon the written request of ABCredit, the Doctor will promptly deliver to ABCredit a certificate executed by an officer/principal of the Doctor certifying that Doctor is in compliance with the information security and privacy provisions of HIPAA. The Doctor further represents and warrants that it will: (a) treat any ABCredit Application and/or any information it receives in conjunction with an ABCredit Application as Protected Health Information (“PHI”) as defined in HIPAA and (b) maintain such PHI in a manner compliant with the information security and privacy provisions of HIPAA. Finally, the Doctor represents and warrants that it has, and will continue to have for so long as it retains PHI of ABCredit's customers, adequate administrative, technical and physical safeguards to (i) ensure the security and confidentiality of patient records and information, (ii) protect against any anticipated threats or hazards to the security or integrity of such records and (iii) protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any patient. If the Doctor discovers there has been a material breach in its security safeguards required by this Amendment, the Doctor will immediately notify ABCredit. ABCredit may thereafter take all reasonable and appropriate steps to protect such records and information in such event.
8. Term and Termination. Notwithstanding anything to the contrary in this agreement, either party may terminate this agreement at any time upon written notice to the other party. Any bankruptcy (whether voluntary or involuntary) or insolvency by either party shall be considered an immediate termination event and shall result in the termination of this Agreement. Termination of this agreement will not terminate, affect, or impair any rights, obligations, or liabilities of either party, which may accrue prior to such termination or which under the terms of this agreement, continue after the termination.
9. Records and Audits. Pursuant to applicable laws and regulations, not limited to financial privacy regulations, each party will keep and maintain at its principal place of business appropriate books and records relating to its activities under this Agreement for a minimum of seven years after their creation. Each party will be responsible for its own costs and expenses in connection with any audits and inspections of the other party’s books and records.
10. Indemnification. The Doctor shall indemnify, hold harmless and, at ABCredit’s request, defend ABCredit and its affiliates and their officers, directors, and employees from and against any and all liabilities, obligations, losses, claims, damages, actions, suits, proceedings, investigations, demands, assessments, adjustments, settlement payments, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses), and deficiencies suffered, sustained, incurred or paid by ABCredit (collectively, “Losses”) in connection with, resulting from, relating to, or arising out of any of the following: (i) any material breach by the Doctor of any representation or warranty set forth in this Agreement; (ii) any material non fulfillment or breach by the Doctor of any covenant or agreement set forth in this Agreement; (iii) the gross negligence or willful misconduct by the Doctor in the performance of obligations under this Agreement; or (iv) to the extent of available insurance coverage, any malpractice claim, suit or any other similar action for which Doctor has been legally adjudicated to be liable.
11. Representations and Warranties. Each party represents and warrants to the other party that: (i) such party has the right, power, and authority to enter into this Agreement and perform the acts required of it hereunder; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms (except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general principles of equity).
12. General Provisions.
A. Relationship of Parties. The parties agree that in performing their responsibilities pursuant to this Agreement, they are in the position of independent contractors. This Agreement is not intended to create, nor does it create, a partnership, joint venture or any association for profit between ABCredit and the Doctor.
B. Assignment. This Agreement may not be assigned, in whole or in part, by either party, without the prior written consent of the other party; provided, however, that ABCredit may assign this Agreement, at its discretion, to an affiliate without the consent of the Doctor. This Agreement will be binding upon and will inure to the benefit of the parties and their representatives and respective successors and permitted assigns.
C. Waivers. No party will be deemed to have waived any of its rights, powers or remedies hereunder unless that party approves such waiver in writing. Any delay, waiver, or omission by a party to exercise any right or power arising from any breach or default in any of the terms, provisions, or covenants of this Agreement will not be construed to be a waiver by that party of any subsequent breach or default of the same or other terms, provisions or covenants.
D. Entire Agreement; Amendments. This Agreement, including any and all attachments hereto, constitutes the entire agreement between the parties relating to the subject matter hereof, and all prior negotiations and understandings, whether oral or written, are superseded hereby. No modification or amendment of this Agreement will be effective unless and until set forth in writing and signed by the parties.
E. Insurance. The Doctor shall maintain sufficient insurance coverage to reasonably protect ABCredit from any and all liabilities for which the Doctor has agreed to indemnify and hold harmless ABCredit.
F. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of California, without reference to the choice of law principles thereof.
G. Compliance with Laws. Each party shall comply with all applicable laws and regulations in performing its obligations under this Agreement.
H. Severability. If any provision of this Agreement or portion thereof is held invalid, illegal, void or unenforceable by reason of any rule of law, administrative or judicial provision or public policy, all other provisions of this Agreement will nevertheless remain in full force and effect to the extent such remaining provisions accurately reflect the intent of the parties.