Terms and Conditions of Use of Apollo, Inc. and Services
Thank you for visiting Apollo, www.apollohct.com (the “Site”) owned and operated by Apollo, Inc. and its affiliates (collectively, “Apollo,” “we,” or “our”). You should not access or use this Site until you have carefully read and agreed to these terms and conditions, which consist of four sections: (i) terms applicable to all Users of the Site (the “Site Use Terms”), (ii) terms applicable only to Physicians (defined below) (the “Physician Terms”, the “Professional Terms”), and (iii) terms applicable only to Clients (defined below) (the “Client Terms”). For the avoidance of any doubt, the Site Use Terms apply to all Users, including all Professionals (defined below), both the Site Use Terms, both the Site Use Terms and Physician Terms apply to Physicians, and both the Site Use Terms and the Client Terms apply to Clients. Collectively the Site Use Terms, the Professional Terms and the Client Terms may be referred to as the “Terms.”
Apollo provides the Site, an online platform linking healthcare professionals seeking to provide professional services (the “Professional Services”) and healthcare facilities seeking to engage healthcare professionals to perform Professional Services at such healthcare facilities. “User,” “Users,” “you,” or “your” refer to all persons who access or use the Site, including but not limited to Professionals and Clients. “Professionals” refers to those healthcare professionals, including physicians and nurses, who registered with Apollo through the Site to provide Professional Services at the Clients. “Physicians” refers to those Professionals who are physicians. “Client” or “Clients” refer to those healthcare facilities that registered with Apollo through the Site to engage Professionals to provide Professional Services at the Clients.
By visiting the Site, you and other Users agree to the Site Use Terms. If you do not agree to the Site Use Terms, you may not access or use the Site. We may modify the Site Use Terms from time to time without notice to you by posting revised Site Use Terms on the Site with a new effective date. We include the effective date of our Site Use Terms at the top of the Site Use Terms. We encourage you to check our Site frequently to see the current Site Use Terms in effect and any changes that may have been made to them. By visiting the Site following any modifications to the Site Use Terms, you agree to be bound by such modifications.
The Terms govern the permitted and prohibited access to and uses of the Site and the respective rights of Apollo and the Users with regard to the Site. Apollo provides you with access to and use of the Site subject to your compliance with the Terms. The provisions contained herein supersede all previous notices or statements regarding our Terms.
We may modify the Professional Terms or Client Terms as required by the development of our business and with notice to the respective Professionals or Clients. We include the effective date of our Professional Terms and Client Terms at the top of the respective Professional Terms and Client Terms. Such modifications to the Professional Terms or Client Terms shall take effect, and be binding on Professionals and Clients, respectively, thirty (30) days after such notification.
You agree to comply with all applicable laws, rules and regulations in connection with your access and use of the Site.
A. SITE USE TERMS
User Age and Access
By submitting information through the Site you represent that you are a United States resident over the age of 18.
The Site, including all of its contents, such as text, images and the HTML used to generate the pages (“Materials”), is our property or that of our suppliers or licensors and are protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided herein, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, transmit, or distribute any Materials from the Site in whole or in part, for any public or commercial purpose, without the specific written permission of Apollo. We grant you a personal, non-exclusive, non-transferable license to access our Site and to use the information contained here. In turn, you grant us a non-exclusive, royalty-free license to use any content you post on the Site for any purpose, subject to the express terms of these Site Use Terms.
- Rules and Limits on and Modifications to the Site
We reserve the right, for any reason, in our sole discretion and without notice to you, to terminate, change, suspend or discontinue any aspect of the Site, including, but not limited to, information, data, text, music, sound, photographs, graphics, video, messages or other materials (“Content”), features and/or hours of availability, and we will not be liable to you or to any third party for doing so. We may also impose rules for and limits on use of the Site or restrict your access to part, or all, of the Site without notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion.
a. Specific Prohibited Uses. The Site may be used only for lawful purposes. You are responsible for your own communications, including the upload, transmission and posting of information, and are responsible for the consequences of their posting on or through the Site. Apollo specifically prohibits any use of the Site, and requires all Users to agree not to use the Site, for any of the following:
- Posting any information that is incomplete, false, inaccurate or not your own, such as creating a fictional account;
- Impersonating another person, such as creating an account for a person other than yourself;
- Constituting or encouraging conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national or international law or regulation or that fails to comply with accepted Internet protocol;
- Posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it;
- Posting material that reveals trade secrets, unless you own them or have the permission of the owner;
- Posting material that infringes on any other intellectual property, privacy or publicity right of another;
- Transmitting or transferring (by any means) information or software derived from the Site to foreign countries or certain foreign nations in violation of United States export control laws; and
- Attempting to interfere in any way with the Site’s or Apollo’s networks or network security, or attempting to use the Site’s service to gain unauthorized access to any other computer system.
- b. Non-Solicitation. You acknowledge and agree that Apollo provides Users with a valued service in presenting Professionals to Clients. In return, to the extent consistent with applicable state law, Professionals shall not solicit or accept either a temporary engagement or permanent position directly with a Client, or an Affiliate of a Client, that was the subject of an Introduction to such Professional for a period of one (1) year after the date of the Introduction unless Client pays Apollo a Reassignment Fee, as defined in each Client’s agreement with Apollo. For purposes of this Section 3(b), an “Affiliate” of a Client includes, but is not limited to, an organization or person that has any form of direct or indirect business relationship with such Client, any entity comprised of one or more owners of such Client, or any successor to or assignee of such Client. For purposes of this Section 3(b), an “Introduction” shall be deemed to have occurred when a Professional has initiated contact with a Client and when a Client has initiated contact with a Professional through the Apollo platform, regardless of whether there is a response to the initiated contact and regardless of whether the contact or any response is initiated or conducted through the Site or otherwise. In the event that there is any conflict or inconsistency between this Section 3(b) and the terms and conditions contained in the Professional Terms or another agreement between an individual Professional and Apollo, the Professional Terms as applicable or such other agreement as applicable shall control.
c. Security Rules. Violations of system or network security may result in civil or criminal liability. Apollo will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the User or Users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, the following:
- Accessing data not intended for you or logging into a server or account that you are not authorized to access;
- Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
- Attempting to interfere with service to any User, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding,” “mailbombing,” or “crashing,” or sending unsolicited e-mail, including promotions and/or advertising of products or services; or
- Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
- International Use
We control and operate the Site from our offices in the United States, and all information is processed within the United States. We do not represent that Materials on the Site are appropriate or available for use in other locations. Users who choose to access the Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
- Proprietary Rights
As between you and Apollo, (or other company whose marks appear on the Site), Apollo (or the respective company) is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing on the Site, and is the copyright owner or licensee of the Content and/or information on the Site, unless otherwise indicated.
Except as otherwise provided herein, use of the Site does not grant you a license to any Content, features or Materials you may access on the Site and you may not modify, rent, lease, lend, sell, distribute or create derivative works of such Content, features or Materials, in whole or in part. No Material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, except for as specifically allowed in the Site. Any commercial use of the Site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Content or screens for any purpose except as otherwise authorized by Apollo. If you make use of the Site, other than as provided herein, in doing so you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any User of our trademarks, registered trademarks, service marks, copyrightable material or intellectual property by including them on the Site.
The information on the Site including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law, including copyright law.
Product names, logos, designs, titles, words or phrases may be protected under law as the trademarks, service marks or trade names of Apollo or other entities. Such trademarks, service marks and trade names may be registered in the United States and internationally.
The Apollo logos and service names are trademarks of Apollo (the “Apollo Marks”). Without Apollo’s prior permission, you agree not to display or use the Apollo Marks in any manner. Nothing on the Site should be construed to grant any license or right to use any Apollo Mark without the prior written consent of Apollo.
- Links from and to the Site
You may be able to link to third party websites (“Linked Sites”) from the Site. Linked Sites are not, however, reviewed, controlled or examined by Apollo in any way and Apollo is not responsible for the content, availability, advertising, products, information or use of user information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply Apollo’s endorsement of, or association with, the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall Apollo be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through these Linked Sites. You should direct any concerns to that site’s administrator or Webmaster. Apollo reserves the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Site and/or introduce different features or links to different Users. Permission must be granted by us for any type of link to the Site. To seek our permission, you may write to us at the address below. We reserve the right, however, to deny any request or rescind any permission granted by us to link through such other type of link and to require termination of any such link to the Site, at our discretion at any time.
- Payment Notifications
Payment to Apollo is not required at this time.
- Representation and Warranty; Indemnity
You represent and warrant to Apollo that any information or materials You post on or transmit through the Site for any purpose will not infringe on the intellectual property rights or violate any other rights of any third party. You agree to defend, indemnify and hold Apollo, its directors, officers, employees, agents and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, in any way arising from, related to or in connection with your use or misuse of the Site, your violation of these Site Use Terms or the posting or transmission of any materials on or through the Site by you, including, but not limited to, any third party claim that any information or materials you provide infringes any third party proprietary right.
- DISCLAIMER OF WARRANTIES REGARDING SITE
YOU UNDERSTAND AND AGREE THAT:
THE SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, FUNCTION AND MATERIALS, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Apollo DOES NOT WARRANT THAT THE SITE OR THE FUNCTIONALITY, CONTENT OR MATERIALS MADE AVAILABLE THEREBY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. Apollo MAKES NO WARRANTY THAT THE SITE WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE OPERATION OF THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
Apollo DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY OR ON BEHALF OF THIRD PARTIES ON OR THROUGH THE SITE. Apollo IS NOT A PARTY TO, AND DOES NOT MONITOR, ANY TRANSACTION BETWEEN USERS AND THIRD PARTIES THAT IS WITHOUT THE DIRECT INVOLVEMENT OF Apollo.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL Apollo, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE CONTENT, MATERIALS AND FUNCTION RELATED THERETO, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF Apollo OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF Apollo TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THESE SITE USE TERMS OR YOUR ACCESS TO OR USE OF THE SITE EXCEED, IN THE AGGREGATE, $100.00.
- Severability; No Waiver
If any provision of these Site Use Terms is held to be contrary to law, such provision shall be deemed valid only to the extent permitted by law, and all other provisions shall continue in full force and effect. Apollo’s failure to require performance of any provision shall not affect its right to require performance at any time thereafter, nor shall Apollo’s waiver of any breach or default of these Site Use Terms constitute a waiver of any subsequent breach or default.
- Governing Law
These Site Use Terms are enforceable pursuant to and in accordance with the laws of the State of New York. Any dispute arising out of these Site Use Terms shall be decided by a court of competent jurisdiction in New York County, New York.
- Successors and Assigns; No Assignment
These Site Use Terms shall be binding upon, and shall inure to the benefit of, Apollo and the Users and their respective heirs, legal representatives, successors and assigns.
The subject headings of the sections of these Site Use Terms are included for purposes of convenience only and shall not affect the construction of interpretation of any of its provisions.
Except as prohibited by law, any dispute between Apollo and a User (or between Apollo or a User, on the one hand, and any officer, director, employee or affiliate of Apollo or a User, on the other hand) shall be resolved through binding arbitration in New York County, New York under the Federal Arbitration Act. Nothing in this arbitration provision is intended to prevent Apollo or a User from filing charges with state or federal agencies. By using the Site, you agree that such arbitration shall be conducted on an individual basis only, not a class, collective or representative basis, and you waive right to bring class-wide, collective or representative claims before any arbitrator or in any forum. YOU UNDERSTAND THAT BY AGREEING TO ARBITRATE DISPUTES YOU ARE WAIVING ANY RIGHT THAT YOU MIGHT OTHERWISE HAVE TO A JURY TRIAL. This arbitration provision is not intended to modify or limit the right of Apollo or a User’s right to seek equitable relief, such as an injunction or attachment, through judicial process, which will not be deemed a waiver of the right to demand and obtain arbitration.
- Consent to Processing
By providing any personal information to the Site, all Users, including without limitation Users in the European Union, fully understand and unambiguously consent to the collection and processing of such information in the United States. Any inquiries concerning these Site Use Terms should be directed to Apollo at the address below.
You agree that no joint venture, partnership, employment, or agency relationship exists between Apollo and you as a result of these Site Use Terms or your use of the Site.
- Time to Bring Claims
Any claim or cause of action you may have with respect to Apollo or the Site must be commenced within one (1) year after the claim or cause of action arose.
Notices to Users may be made via either email or regular mail. The Site may also provide notices of changes to these Site Use Terms or other matters by displaying notices or links to notices to Users on the Site.
- Contacting Apollo.
To contact us with any questions or concerns in connection with these Site Use Terms or the Site, or to provide any notice under these Site Use Terms to Apollo, please click the “Contact Us” link in the footer of the home page.
B. PHYSICIAN TERMS
These Physician Terms of Service (the “Physician Terms”) are by and between Apollo, Inc. (“Apollo”) and each physician (each being “Physician”) who is registered with Apollo through www.apollohct.com (the “Site”) to provide Physician Services on behalf of Clients. Apollo owns and operates the Site, which is an online platform linking physicians seeking to provide professional services (the “Physician Services”) as locum tenentes (“Locums”) and/or as regular hires (“Regular Hires”) and organizations seeking to engage physicians to perform the Physician Services on their behalf (“Clients”).
- Account Registration and Suspension
To accept Engagements (defined below) through the Site, Physician shall have registered an account with Apollo through the Site. Physician may suspend his or her account at any time using the account settings page or by contacting Apollo using the “Contact Us” link in the footer of the home page provided that Physician has no outstanding Service Contracts (as defined below). Apollo may suspend Physician’s account at any time with notice to Physician. If Physician’s account is suspended, such account will no longer appear on the Site as visible to the public, but such suspension will not terminate these Physician Terms or any outstanding Offer, Service Contract, or Placement Contract (defined below).
- Physician may from time to time accept engagements presented to him or her through the Site to perform Physician Services for Clients (each, an “Engagement”) either as a Locums (a “Locums Engagement”) or as a Regular Hire (a “Regular Engagement”). For each Engagement, Physician and a Client shall be responsible for determining, as applicable (i) Physician’s fees for his or her Physician Services (the “Provider Fees”) and any travel and lodging expenses, (ii) Physician’s work schedule and coverage assignments, (iii) malpractice insurance coverage and (iv) other details related to the Physician Services, all of which shall be set forth in an offer presented to Physician by Client (the “Offer”). The Offer is subject to negotiation between Physician and each Client and may contain terms different from or in addition to these Physician Terms. For purposes of these Physician Terms, “Service Contract” means the binding agreement established among Apollo, Client and Physician upon the acceptance of the Offer for a Locums Engagement by Physician in accordance with the Clinical Staff Agreement between Apollo and Client (the “Client Agreement”) and these Physician Terms. For purposes of these Physician Terms, “Placement Contract” means the binding agreement established among Apollo, Client and Physician upon the acceptance of an Offer for a Regular Engagement by Physician in accordance with the Client Agreement and these Physician Terms.
- Physician hereby acknowledges that (i) Apollo is not collecting, exacting, charging or receiving a fee, in cash or in kind, from Physician for procuring, or attempting to procure, or assisting to procure employment, work or a situation of any kind for Physician, (ii) Apollo may direct Physician to Clients that have requested that they be regularly introduced to physicians with qualifications like Physician’s, and (iii) Apollo may promote Physician to Clients, even if such Clients have not posted job listings for applicants similar to Physician.
For Locums Engagements, on a biweekly basis, Physician shall prepare and submit to Apollo through the Site such complete, timely, accurate and legible documentation as may be requested by Apollo to reflect the performance of the Physician Services in such form and containing such detail as requested by Apollo in accordance with the Apollo Policies (as defined below) and applicable Laws (as defined below). Apollo shall use such documentation to populate a time sheet for Physician (the “Time Sheet”).
- Except as provided in Section 4(b) below, for each Locums Engagement, Apollo shall arrange for Physician to be paid the Provider Fees agreed to by Physician and a Client pursuant to a Service Contract for those Physician Services documented pursuant to a properly submitted Time Sheet. Such payment shall be made to Physician within fourteen (14) days of such Client’s approval of the Time Sheet.
- Physician hereby acknowledges that if a Client fails to meet financial obligations to Apollo for Physician Services performed by Physician, including with regard to a Locums Engagement or Regular Engagement, such Engagement between Physician and such Client may be canceled by Apollo. Under no circumstances will Apollo be obligated to arrange for payment for Physician Services for which Apollo has not received payment from a Client. Physician shall not be entitled to payment for any Physician Services scheduled pursuant to an Engagement that are not actually performed; however, Apollo will use all commercially reasonable efforts to collect amounts due to Physician for up to thirty (30) days after a canceled Engagement when a Client does not provide a minimum thirty (30) days’ notice of cancellation.
- Physician acknowledges that Apollo will provide payment processing through a third party service provider, Dwolla, Inc. Physician authorizes Apollo’s service provider, Dwolla, Inc., to originate credit transfers to Physician’s financial institution account. Apollo will provide information to Dwolla, Inc., including Physician’s personally identifiable information and financial information.
- Apollo Professional Liability Coverage
Apollo does not offer malpractice insurance coverage to physicians. It is the responsibility of clients and hospitals to provide malpractice coverage as they see fit to matches generated from Apollo services..
- Relationship of Physician and Apollo
- Apollo shall neither have nor exercise any control or direction over the professional judgment, decision-making, or methods by which Physician performs Physician Services. As an independent contractor, Physician shall be responsible for his or her own medical decisions and actions and shall indemnify Apollo and hold Apollo harmless from any and all claims, damages, losses, liabilities, settlements, attorneys’ fees and expenses (collectively “Claims”) not covered by Physician’s professional liability insurance coverage (whether or not Physician obtains coverage through the Apollo Professional Liability Coverage) that are incurred by Apollo arising out of, in connection with, or as a result of Physician rendering or failing to render Physician Services, including Claims that Physician’s negligence, in whole or in part, caused the loss.
- These Physician Terms are not intended to create, nor shall be deemed or construed to create, any relationship between Physician and Apollo other than that of independent parties contracting with each other for the purpose of effecting the provisions of these Physician Terms. Physician agrees that he or she (i) is an independent contractor (not an employee or other agent) solely responsible for the manner in which he or she performs the Physician Services, (ii) is solely responsible for all taxes, withholdings and other statutory, regulatory or contractual obligations of any sort, and (iii) is not entitled to participate in any employee benefit plans, group insurance arrangements or similar programs of Apollo. Apollo does not pay or provide for social security, workers compensation, unemployment insurance, or health insurance with regard to Physician and shall not be responsible for withholding for, or contributing to, employment taxes or benefits of any type for Physician.
- A Form 1099 will be issued to Physician for income reporting purposes for Locums Engagements.
- Physician shall not be required to subscribe for any publications or incidental services or contribute to the cost of Apollo’s advertising. Any obligations owed by Apollo to Physician, including any payments required hereunder, are contingent upon Physician being properly credentialed and obtaining the necessary privileges at Clients. To the extent Physician fails to be credentialed and/or fails to obtain the necessary privileges in question, for any reason, Apollo shall have no obligations to Physician as set forth herein. Apollo shall not be responsible for a Client’s failure to properly credential and/or provide privileges to Physician for any reason.
- Apollo represents, warrants and covenants that, except as provided to Physician in writing, Apollo has never been excluded or suspended from participation in, or sanctioned by, any Medicare program, any Medicaid program or any other federal health care program as such term is defined at 42 U.S.C. Title 42 § 1320a-7b (the “Government Health Care Programs”) and has never been included on the OIG-LEIE or GSA exclusion list.
- Professional Standards and Qualifications
- Physician shall comply with (i) all policies, procedures and guidelines of Apollo (the “Apollo Policies”), each as may be adopted or amended by Apollo from time to time; (ii) all federal, state and local laws, regulations and orders (collectively, the “Laws”) applicable to these Physician Terms, any Service Contract, any Placement Contract and the Physician Services; and (c) all standards of the applicable licensing boards, certifying authorities or professional specialty boards having jurisdiction from time to time over the Physician (collectively, the “Boards”).
- Physician (i) is and shall remain licensed to practice medicine in the states in which Physician provides Physician Services, (ii) has and shall maintain an unrestricted federal Drug Enforcement Administration registration and (iii) has and shall maintain any and all other licenses, permits, registrations, or other certifications as required by applicable Laws to provide the Physician Services.
- In providing the Physician Services, Physician shall exercise the degree of skill, diligence and knowledge normally possessed by members of the same profession in the states in which Physician provides the Physician Services and conform to the standards of care of such states.
- Physician shall not use illegal drugs or perform the Physician Services while impaired by alcohol or any chemical substance.
- Physician shall remain eligible for professional errors or omissions coverage for the Physician Services.
- Representations and Warranties
Physician represents, warrants and covenants that, except as provided to Apollo in writing, the following are true as of the Effective Date and remain true until these Physician Terms have been terminated pursuant to its terms.
- Physician has never had a license, permit, registration, or other certification relevant to Physician’s provision of professional services in any state suspended, revoked or restricted;
- Physician has never been reprimanded, sanctioned or disciplined by any licensing boards, certifying authorities or professional specialty boards having jurisdiction from time to time over Physician;
- Physician has never been excluded or suspended from participation in, or sanctioned by, any Government Health Care Program or other third party payor programs;
- Physician has not been denied membership and/or reappointment to the medical staff of any hospital or health care facility, or had such medical staff membership or clinical privileges suspended, limited, or revoked for a medical disciplinary cause or reason; and
- Physician is eligible for professional errors or omissions coverage.
Physician shall notify Apollo in writing immediately upon the occurrence of any one or more of the following events:
- Physician is aware of any threatened, pending or final suspension, revocation, limitation, restriction or disciplinary action taken by a Board that has jurisdiction over him or her;
- Physician uses illegal drugs or performs the Physician Services while impaired by or under the influence of any chemical substance;
- Physician violates the Apollo Policies or Laws;
- Physician is suspended, excluded or otherwise ineligible to participate in one or more Government Health Care Programs or other third party payor programs; or
- Physician is denied membership and/or reappointment to the medical staff of any hospital or health care facility, or has such medical staff membership or clinical privileges suspended, limited, or revoked for a medical disciplinary cause or reason.
- Billing and Collections
All fees billed by Clients for Physician Services rendered by Physician pursuant to a Locums Engagement shall be and remain the property of such Clients. Clients shall have the sole and exclusive right to bill and collect from any and all third-party payors, including Government Health Care Programs, for all Physician Services rendered by Physician while providing Physician Services for such Clients pursuant to an Engagement. Physician hereby irrevocably reassigns to Clients, as applicable, all receivables and collections with respect to the Physician Services. Physician shall comply with all Laws pertaining to Government Health Care Program billing and reimbursement and all requirements of any third-party payors contracting with Clients. Physician shall prepare, execute and deliver to Clients such assignments and/or other documents as may be requested by Clients and necessary or appropriate to effectuate the intent of this Section 10, including, without limitation, Form CMS-855R.
Physician acknowledges and agrees that Apollo has provided to Physician a valued service in presenting Physician to Clients. In return, to the extent consistent with applicable state law, Physician shall not solicit or accept either a temporary engagement or regular position directly with a Client, or an Affiliate of a Client, that was the subject of an Introduction to Physician for a period of two (2) years after the date of the Introduction unless Physician has provided Apollo with written notice at least fifteen (15) business days before Physician provides such services to Client or its Affiliates. For purposes of these Physician Terms, an “Affiliate” of a Client includes, but is not limited to, an organization or person that has any form of direct or indirect business relationship with such Client, any entity comprised of one or more owners of such Client, or any successor to or assignee of such Client. For purposes of these Physician Terms, an “Introduction” shall be deemed to have occurred when Physician or a Client has initiated contact with the other through the Apollo platform, regardless of whether the other responds and regardless of whether such contact occurred through the Site or otherwise.
- Termination of Physician Terms
- Either Apollo or Physician may terminate these Physician Terms upon thirty (30) days prior written notice to the other party (i) if Physician is not currently providing services pursuant to a Service Contract or (ii) as of the last day of any remaining Service Contract.
- Apollo may terminate these Physician Terms immediately, and shall promptly notify Physician of such termination, if there is no Service Contract outstanding and Physician violates (i) Apollo’s Site Use Terms, or (ii) Section 7 (Professional Standards and Qualifications), Section 8 (Representations and Warranties), Section 9 (Notifications) of these Physician Terms.
- Upon any termination of these Physician Terms, Physician’s account with Apollo shall automatically be suspended and all rights and obligations of the parties shall cease except: (a) those rights and obligations that have accrued and remain unsatisfied prior to the termination of these Physician Terms; and (b) those rights and obligations that expressly survive termination of these Physician Terms.
- Sections 4, 5, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 of these Physician Terms shall survive any termination of these Physician Terms.
- Revocation of Offer; Termination of Service Contract or Placement Contract
- Apollo, Client or Physician without Cause. Apollo, Client or Physician may revoke an Offer or terminate the resulting Service Contract or Placement Contract (i) without cause prior to the scheduled provision of Physician Services pursuant thereto or (ii) pursuant to the terms of such Service Contract or Placement Contract. If Physician terminates a Service Contract or Placement Contract without cause within ten (10) calendar days prior to the commencement of Physician Services under such Service Contract or Placement Contract, Physician shall be liable to Apollo and/or Client for all damages, including costs, losses, and prejudice, incurred by either Apollo or Client due to Physician’s termination. Such damages may include costs to Apollo or Client of finding a replacement for Physician and amounts incurred by Apollo in processing Physician’s Service or Placement Contract, not to exceed $15,000. If Apollo is deemed the prevailing party in an action to enforce its rights under this Paragraph, it may recover its expenses (including reasonable attorneys’ fees) incurred in connection with the action and any resulting appeal.
- Effect of Revocation or Termination. Upon revocation of the Offer or termination of the resulting Service Contract or Placement Contract for any reason, all rights and obligations of Apollo, Client and Physician shall cease except: (i) those rights and obligations that have accrued and remain unsatisfied prior to the revocation of such Offer or termination of such Service Contract or Placement Contract; (ii) those rights and obligations that expressly survive termination of such Service Contract or Placement Contract; and (iii) as provided in Apollo’s Site Use Terms, the Client Agreement or these Physician Terms. For the avoidance of doubt, Apollo shall have no obligation to replace Physician upon termination of an Offer, Service Contract or Placement Contract for any reason.
- Health Insurance Portability and Accountability Act
Apollo and Physician acknowledge that the performance of Apollo’s obligations under these Physician Terms and any Service Contract or Placement Contract does not involve the use or disclosure of protected health information, as defined in 45 C.F.R. § 160.103 (“PHI”). Apollo does not create, receive, maintain or transmit PHI on Physician’s behalf. Consequently, Apollo and Physician hereby agree that Apollo is not a “business associate” of Physician for purposes of the federal Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 and the regulations promulgated thereunder.
In addition to any other obligation of Physician otherwise to provide indemnification, Physician agrees to indemnify and hold harmless Apollo, its directors, officers, employees, agents and affiliates from and against any and all Claims arising out of or resulting from any act or omission of Physician, including without limitation (i) execution of these Physician Terms, a Service Contract or a Placement Contract or performance of an Engagement by Physician, (ii) any breach of these Physician Terms, a Service Contract or a Placement Contract by Physician; or (iii) Physician rendering or failing to render Physician Services, including Claims arising out of or resulting from Physician’s negligence or willful or reckless misconduct, in whole or in part, without regard to whether or not such Claims are covered by professional liability insurance.
- Severability; No Waiver
If any provision of these Physician Terms is held to be contrary to Law, such provision shall be deemed valid only to the extent permitted by Law, and all other provisions shall continue in full force and effect. Apollo’s failure to require performance of any provision shall not affect its right to require performance at any time thereafter, nor shall Apollo’s waiver of any breach or default of these Physician Terms constitute a waiver of any subsequent breach or default.
- Binding Contract; Governing Law
These Physician Terms are a binding contract between Apollo and Physician that is enforceable pursuant to and in accordance with the Laws of the State of New York. Any dispute arising out of these Physician Terms shall be decided by a court of competent jurisdiction in New York County, New York.
- Successors and Assigns; No Assignment
These Physician Terms shall be binding upon, and shall inure to the benefit of, Apollo and Physician and their respective heirs, legal representatives, successors and assigns. Physician shall not assign or subcontract any of its rights, interests, duties, or obligations under these Physician Terms without the prior written consent of Apollo, which consent may be given or withheld in Apollo’s sole discretion, and any attempted or purported assignment in violation of this Section 18 shall be void.
The subject headings of the sections of these Physician Terms are included for purposes of convenience only and shall not affect the construction of interpretation of any of its provisions.
- ARBITRATION; ATTORNEYS FEES
Except as prohibited by Law, any dispute between Apollo and Physician shall be resolved through binding arbitration in New York County, New York under the Federal Arbitration Act. Nothing in this arbitration provision is intended to prevent Apollo or Physician from filing charges with state or federal agencies. Physician agrees that such arbitration shall be conducted on an individual basis only, not a class, collective or representative basis, and Physician waives any right to bring class-wide, collective or representative claims before any arbitrator or in any forum. PHYSICIAN UNDERSTANDS THAT BY AGREEING TO ARBITRATE DISPUTES PHYSICIAN IS WAIVING ANY RIGHT THAT HE OR SHE MIGHT OTHERWISE HAVE TO A JURY TRIAL. This arbitration provision is not intended to modify or limit the right of Apollo or Physician’s right to seek equitable relief, such as an injunction or attachment, through judicial process, which will not be deemed a waiver of the right to demand and obtain arbitration. In the event of any dispute between Apollo and Physician concerning the terms and provisions of these Physician Terms, any Offer, any Service Contract, any Placement Contract and the Site Use Terms, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys fees.
- Entire Agreement
These Physician Terms, any Offer, any Service Contract, any Placement Contract and Apollo’s Site Use Terms constitute the entire agreement between Physician and Apollo relating to and governing Physician’s use of the Site and Apollo’s relationship with Physician, superseding any prior agreements between Physician and Apollo.
All notices or communications required or permitted under these Physician Terms may be made either via (a) e-mail (in which cases such notice shall be deemed given on the date of delivery), (b) by next business day courier service (e.g., Federal Express, UPS or other similar service) (in which case such notice shall be deemed given on the business day following date of deposit with the courier service), or (c) by United States mail, first class, postage prepaid, registered or certified, return receipt requested (in which case such notice shall be deemed given on the third (3rd) day following the date of deposit with the United States Postal Service). Notice to Apollo shall be delivered to Apollo by clicking the “Contact Us” link in the footer of the home page. Notice to Physician shall be delivered to the e-mail address or physical address provided by Physician to Apollo from time to time.
Apollo may modify these Physician Terms with notice to Physician. Apollo includes the Effective Date of these Physician Terms at the top of these Physician Terms. Such modifications to these Physician Terms shall take effect, and be binding on Physician thirty (30) days after such notification.
C. CLIENT TERMS
Effective Date: March 25th, 2016. For the avoidance of any doubt, capitalized terms not otherwise defined herein shall have the meanings given to them in the Site Use Terms and the Physician Terms.
- Account Registration and Suspension.
Clients who wish to engage Physicians for Engagements through the Site shall have registered an account with Apollo through the Site. Representatives of the Client will create individual accounts by selecting a username and password and associating such accounts with the Client’s facility or facilities. Each representative of the Client must be verified as an employee of the Client by either (a) transmitting a photograph of his or her Client-issued identification badge or (b) receiving an invitation to Apollo from a Client representative who has already been verified as an employee of the Client by other means, including, but not limited to, the mechanism described in (a). Client users may suspend his or her individual account at any time using the account settings page or by contacting Apollo using the “Contact Us” link in the footer of the home page.
- Duties of Client
- Selection and Engagement of Physicians.
- Clients may from time to time select Physicians introduced to Clients through the Site to perform Physician Services on behalf of Clients for the rates specified in one or more Orders by submitting to Apollo a completed and fully-exectued Order. Clients shall exercise independent judgment in assessing the professional qualifications of each Physician it seeks to engage and shall be responsible for credentialing each Physician to determine whether each Physician is qualified by training and experience to perform the Physician Services described on the Order. Clients acknowledge that Apollo is not licensed to practice medicine and shall have no control as to the means or the quality of the Physician Services furnished by the Physicians, nor shall Apollo have any right or responsibility for making any determinations regarding the Physicians’ professional service engagements, schedule or practice.
- Clients, in consultation with the Physicians, shall be responsible for determining the Physicians Fees, as well as for determining the Physicians’ work schedule, coverage assignments, schedule, number of hours provided, number of patients served and other requirements related to the performance of the Physician Services by the Physicians.
- Clients shall, as necessary and appropriate, provide to the Physicians providing Physician Services on behalf of Clients (A) a reasonable coverage schedule, (B) reasonably maintained, usual and customary equipment and supplies, (C) a suitable practice environment complying with acceptable ethical and procedural standards and (D) as necessary, appropriately trained support staff, all so as to enable the Physicians to perform the Physician Services in their specialty on comparable terms to other practitioners in the same specialty as the Physicians. Client shall provide to the Physicians an orientation of Client’s facility and required policies and procedures.
- Clients shall use their best efforts to assist the Physicians in timely obtaining any hospital or medical staff privileges necessary for the Physicians to provide the Physician Services on behalf of such Clients and shall pay all application fees associated with obtaining such privileges.
- Clients shall bill for, collect and retain all professional fees generated by the Physician Services rendered by Physicians. Clients are responsible for obtaining all necessary documentation to permit it to bill for and collect all professional fees generated by the Physician Services rendered by Physicians, including without limitation Form CMS-855R.
Clients may, from time to time, post about opportunities to provide Physician Services on behalf of Client on the Site. Consistent with the Site Use Terms, Clients shall only post true information pertaining to opportunities that are actually available and shall use commercially reasonable efforts to timely remove posts for opportunities that are no longer available.
Clients shall comply, and shall cause all of their employees and agents to comply, with (i) the Laws applicable to the obligations of Clients under the Client Terms and any Order and (ii) the Apollo Policies, each as may be adopted or amended by Apollo from time to time.
- Notification to Apollo.
If there are any occupational safety hazards or events involving a Physician engaged by Clients pursuant to the Client Terms and any Order, or there is any sentinel event or actual or threatened claim arising out of or relating to the acts or omissions of such Physician, such Clients shall provide Apollo with written notice of such claim immediately, and in no event, ten (10) days after such Clients knew or reasonably should have known of such claim.
- Selection and Engagement of Physicians.
- Apollo Professional Liability Coverage
Apollo does not offer professional malpractice coverage of enrolled physicians. It is the responsibility of the client and/or physician to provide malpractice insurance.
- Time Sheets and Physician Fees
- Clients shall be responsible for verifying the Physicians’ Time Sheets on a monthly basis. Clients shall sign, and remit to Apollo the Physician Fees associated with, each Time Sheet within fourteen (14) calendar days of receipt such Time Sheet. Interest shall accrue on any late payments at a rate of one-and-one-half percent (1.5%) per month compounded annually, provided however that such interest shall not be greater than the applicable legal maximum rate of interest if lower. Apollo shall remit to each Physician the Physician Fees, and any associated interest, within thirty (30) calendar days of receipt from Clients.
- A signed Time Sheet by a Client shall indicate such Client’s agreement that the applicable Physician properly provided the Physician Services for the stated hours and that such Client will remit the Physician Fees pursuant to the Client Terms and the applicable Order. If a Client has any questions concerning a Time Sheet, such Client must notify Apollo in writing within three (3) business days of such Client’s receipt of such Time Sheet. If such Client does not provide such notice to Apollo, such Time Sheet shall be deemed accurate and valid.
- Clients shall cooperate with and assist Apollo in the preparation of a Form 1099, which Apollo shall issue to Physicians for tax reporting purposes.
- Each Client shall pay Apollo (A) a fee equal to [fifteen] percent (%) of the Physician Fees, plus (B) the portion of the Apollo Professional Liability Coverage premium associated with the Physicians providing Physician Services on behalf of such Client (collectively the “Apollo Fees”). Apollo shall invoice Clients for the Apollo Fees on a monthly basis. Clients shall pay all undisputed invoices within fourteen (14) calendar days after receipt. Interest shall accrue on any late payments at a rate of one-and-one-half percent (1.5%) per month compounded annually, provided however that such interest shall not be greater than the applicable legal maximum rate of interest if lower.
- If a Client has reasonable cause to dispute the accuracy of an invoice, such Client shall promptly, but in any case not later than ten (10) calendar days following the receipt of the invoice, notify Apollo in writing of the nature of the dispute. Such Client may withhold payment of the disputed amount, and such payment will not be considered past due during such Client’s investigation of the dispute. Such Client shall make all commercially reasonable efforts to completely resolve the dispute within thirty (30) calendar days following the date that such Client received the invoice and shall advise Apollo of the results of the completed investigation, and Apollo shall make any adjustments to the invoice mutually agreed to by Apollo and such Client. If Apollo and such Client are unable to resolve the dispute within the period described above, it will be resolved pursuant to the dispute resolution provisions in Section 15 of the Site Use Terms.
- Clients acknowledge and agree that Clients shall not collect, or attempt to collect, remuneration of any kind from the Physicians to reimburse or compensate Clients for the Apollo Fees, for the Physician Fees, or otherwise related to Clients’ use of the Site or the engagement of the Physicians.
- Representations and Warranties
Each Client represents and warrants the following: Such Client has and shall maintain any and all licenses, permits, registrations, or other certifications necessary to perform its obligations under the Client Terms and any Order and to engage Physicians to provide the Physician Services on behalf of such Client; and Such Client has all requisite power and authority, and has taken all corporate action necessary, to agree to the Client Terms and to perform its duties obligations under the Client Terms.
- Relationship of the Parties
None of the provisions of the Client Terms are intended to create, nor shall be deemed or construed to create, any relationship between Apollo and any Client other than that of independent parties contracting with each other for the purpose of effecting the provisions of the Client Terms. Each Client acknowledges that (i) Apollo and such Client are not and shall not be construed to be in a relationship of joint venture, partnership or employer-employee, (ii) the Physicians are and shall at all times be independent contractors with respect to such Client in their performance of the Physician Services; (iii) the Physicians are not employees, subcontractors, or agents of Apollo for any purpose; (iv) Apollo is not involved in the practice of medicine and does not have any responsibility for the medical acts of the Physicians providing the Physician Services on behalf of such Client pursuant to the Client Terms and an Order; and (iv) no provision of the Client Terms shall be deemed or construed to mean that Apollo or any employee of Apollo is engaged in the practice of medicine.
- LIMITATION OF LIABILITY BY Apollo FOR PHYSICIAN SERVICES
Apollo SHALL HAVE NO LIABILITY TO ANY CLIENT FOR ANY INJURY OR LOSS TO ANY PARTY RELATING TO OR IN ANY WAY ARISING OUT OF THE PHYSICIANS’ PROVISION OF PHYSICIAN SERVICES ON BEHALF OF A CLIENT PURSUANT TO THE CLIENT TERMS OR ANY ORDER OR FOR ANY ACTIONS OF THE PHYSICIANS.
Apollo and each Client shall maintain general liability insurance with customary coverage levels. If either Apollo’s or a Client’s coverage is on a claims made basis, then Apollo or such Client shall (i) maintain such insurance for a period of no less than three (3) years after the last Physician provides Physician Services on behalf of such Client pursuant to the Client Terms or (ii) procure equivalent extended reporting period coverage. Within two (2) business days of Apollo’s request at any time, a Client shall provide evidence of such insurance coverage to Apollo. Within two (2) business days of a Client’s request at any time, Apollo shall provide evidence of such insurance coverage to such Client.
- Health Insurance Portability and Accountability Act
Apollo and each Client acknowledge that the performance of Apollo’s obligations under the Client Terms does not involve the use or disclosure of PHI. Apollo shall not receive PHI from any Client, nor create, receive, maintain or transmit PHI on any Client’s behalf. Consequently, Apollo and each Client hereby agree that Apollo is not a “business associate” of any Client, as defined in 45 C.F.R. §160.103, for purposes of the federal Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 and the regulations promulgated thereunder.
- Non-Solicitation of Apollo Employees
A Client that is a party to an Order shall not, during the term of such Order and for a period of one (1) year thereafter, directly or indirectly, on its own behalf or in the service or on the behalf of others, (i) induce or attempt to induce any director, officer or employees of Apollo to leave Apollo, or (ii) hire, contract or take away or cause to be hired, contracted or taken away any director, officer or employee of Apollo.
- Reassignment Fee
In the event that, within two (2) years after a Physician and a Client last communicated via the Site, such Client or any Affiliate of such Client directly (i.e., outside of the Client Terms) employs or retains a Physician introduced to such Client through an Introduction, such Client shall pay to Apollo a reassignment fee equal to ten percent (10%) of the Physician Fees paid by such Client during the first (1st) year that Physician provided Services on behalf of such Client or $50,000, whichever is less (the “Reassignment Fee”). The Reassignment Fee shall be due in full on the first (1st) day such Physician performs services for such Client or an Affiliate of such Client in such capacity. Until the Reassignment Fee is paid by such Client, all services provided by such Physician to Client or an Affiliate of Client shall be treated as provided through this Agreement. For purposes of these Client Terms, an “Introduction” shall be deemed to have occurred when a Physician or Client has initiated contact with the other, regardless of whether the other responds and regardless of whether such contact occurred through the Site or otherwise.
In addition to any other obligation of a Client otherwise to provide indemnification, each Client agrees to indemnify and hold harmless Apollo, its directors, officers, employees, agents and affiliates from and against any and all Claims arising out of or resulting from any act or omission of, by or on behalf of Client, including without limitation (i) execution or performance of an Order by, for or on behalf of Client, or (ii) any breach of the Client Terms or an Order by, for or on behalf of Client.
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