The below terms and conditions are incorporated into the agreement (the “Agreement”) between Candid and the applicable CandidPro provider who has entered into a services agreement with Candid:
1. Confidentiality. All non-public, confidential or proprietary information of each party or its affiliates, including without limitation specifications, samples, patterns, designs, plans, drawings, documents, data, trade secrets, business operations, customer lists, pricing, discounts or rebates, disclosed by such party (“Disclosing Party”) or any of its affiliates or their respective employees, agents or representatives to the other party (“Recipient”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement, is confidential, is disclosed solely for the purpose of performing this Agreement and may not be disclosed unless authorized by Disclosing Party in writing. Upon Disclosing Party’s request, Recipient will promptly either return or destroy all documents and other materials received from Disclosing Party and its affiliates. This Section does not apply to information that: was in the public domain at the time of Recipient’s receipt of such information; at the time of disclosure was already known by the Receiving Party; or becomes available to the Recipient on a non-confidential basis from a source that, to the knowledge of the Recipient, is not prohibited from disclosing it on a non-confidential basis. Recipient: (i) acknowledges that failure to comply with this Section will cause Disclosing Party irrevocable harm and that a remedy at law for such a failure would be an inadequate remedy for Disclosing Party; and (ii) consents to Disclosing Party’s obtaining from a court having jurisdiction specific performance, an injunction, a restraining order or any other equitable relief in order to enforce this Section. The right of Disclosing Party to obtain such equitable relief is in addition to, and not in lieu of, any other remedy (including without limitation monetary damages) to which Disclosing Party is entitled under applicable law.
2. Return of Confidential Information. Upon written request of Disclosing Party, Recipient will either destroy or deliver to Disclosing Party all documents or other materials furnished by Disclosing Party to Recipient constituting Confidential Information, together with all copies thereof stored in any media in the possession of Recipient. In the event of such request, all other documents or other materials constituting Confidential Information, together with all copies thereof stored in any media in the possession of Recipient, will be destroyed with any such destruction confirmed by Recipient in writing to Disclosing Party. Notwithstanding the foregoing, the obligation to return or destroy Confidential Information shall not cover information that is required to be retained by law or pursuant to a representative’s professional obligations, or information maintained on routine computer system backup tapes, disks, or other backup storage devices as long as such backed-up information is not used, disclosed, or otherwise recovered from such backup devices. Return or destruction of Confidential Information shall not apply to patient information required to be retained by law or in order to provide ongoing services with respect to such individual, or to respond to investigation, litigation or any proceedings.
3. Termination. This Agreement may be terminated at any time upon mutual consent of the parties, evidenced by a written agreement signed by an authorized officer or representative of Practice and by an officer of Candid.
- Either party may terminate this Agreement without cause on not less than ninety (90) days’ prior written notice.
- Either party may terminate this Agreement for cause on not less than ten (10) days’ prior written notice, provided such notice specifies the cause for termination, and provides not less than ten (10) days’ opportunity to cure, and the Agreement shall terminate at the end of the cure period, unless the cause has been adequately addressed.
- Either party has the right to immediately terminate this Agreement if the other party ceases to do business in the normal course, is declared bankrupt or insolvent, or makes an assignment for the benefit of creditors.
3(A). Effect on Rights. Termination of this Agreement by a party shall not act as a waiver of any breach of this Agreement and shall not act as a release of any party from any liability for breach of such party's obligations under this Agreement. Except where otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity, including, without limitation, rights or remedies under applicable patent, copyright, trade secrets, or proprietary rights laws, rules or regulations.
3(B). Effect of Termination. Upon termination or expiration of this Agreement, except as stated in this paragraph, all licenses set forth and granted in this Agreement shall terminate. Within thirty (30) calendar days of termination of this Agreement, each party shall pay to the other party, as applicable, all sums then due and owing. The covenants contained in this Agreement which, by their terms, require or contemplate performance by the parties after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. Notwithstanding termination of this Agreement, the parties agree that unless termination was for cause, any patients then in-treatment shall be continued in the normal course, and any payments that would ordinarily be required to be made with respect to such patients shall be made timely in the normal course.
3(C). Cooperation After Termination. Notwithstanding termination or anything else herein the parties shall: (i) reasonably cooperate to avoid any instance of patient abandonment, (ii) reasonably exchange information to the extent necessary to further patient welfare consistent with legal and ethical requirements, and (iii) use commercially reasonable efforts to promptly forward communications intended for the other that may be received. All payment obligations shall survive termination. In addition, notwithstanding termination or confidentiality obligations, each party shall be permitted to retain Patient information or Confidential Information to the extent necessary to comply with law, substantiate expenses, provide services to or on behalf of Patients, or defend itself from claims or litigation.
4. Indemnification. To the fullest extent permitted by law, each party shall defend, indemnify and hold harmless (“Indemnifying Party”) the other party, their officers, directors, shareholders, members, managers, employees, agents and representatives (“Indemnified Parties”), from and against any claims, allegations, damages, awards, judgments, and expenses of every kind or character, including, but not limited to, attorney’s fees and expert costs, (“Losses”) which may arise out of or result from in whole or in part by the gross negligence or willful misconduct of the Indemnifying Party, or their employees, agents, or representative’s performance of the terms of the Agreement, except to the extent caused by the gross negligence or willful misconduct of Indemnified Parties. Indemnifying Party’s obligation to defend Indemnified Parties shall be immediate upon written notice by Indemnified Parties to Indemnifying Party. Indemnifying Party, at its expense, shall assume control of its defense and resolution of each claim using legal counsel approved by the Indemnified Party, such approval not to be unreasonably withheld, and keep Indemnified Party fully and timely informed of the progress of such defense and resolution. With respect to each claim, Indemnified Party shall have the right to retain independent legal counsel and monitor such claim’s defense and resolution. Indemnifying Party and its legal counsel shall fully cooperate with Indemnified Party and its legal counsel in providing such information as they may reasonably request. If Indemnified Party, acting reasonably, determines that Indemnifying Party has failed to (i) defend a claim to Indemnified Party’s reasonable satisfaction or (ii) take timely and reasonable steps to resolve a claim, Indemnified Party shall have the right, but not the obligation, to assume control of the defense and resolution of such Claim at Indemnifying Party’s expense; provided that, if Indemnified Party assumes such control, (a) Indemnified Party shall keep Indemnifying Party reasonably informed of the progress of resolution of the claim, (b) shall consider in good faith comments from Indemnifying Party regarding the defense and resolution of such claim, and (c) Indemnifying Party shall be bound by the results obtained by Indemnified Party with respect to the claim. Indemnifying Party shall not confess judgment or settle, compromise or resolve any claim without the written consent of Indemnified Party, such consent not to be unreasonably withheld.
5. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO OTHER PARTY FOR ANY INDIRECT, SPECIAL CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF GOODWILL, LOSS OF USE, OR LOSS OF DATA OR INFORMATION OF ANY KIND, HOWEVER CAUSED, OR FAILURE OF ANY DELIVERABLE PROVIDED HEREUNDER TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES WAS DISCLOSED OR COULD HAVE BEEN REASONABLY FORESEEN BY THE OTHER PARTY. LIABILITY, IF ANY, ON ANY CLAIM FOR DAMAGES ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES (FOR CLARITY, DIRECT DAMAGES MAY INCLUDE DAMAGES PAID OUT TO THE THIRD PARTY). EXCEPT AS PROVIDED IN THIS SECTION, NEITHER PARTY SHALL BE REQUIRED TO PAY DAMAGES UNDER THIS AGREEMENT IN EXCESS OF THE GREATER OF (I) THE AMOUNT PAID BY PRACTICE TO CANDID IN THE IMMEDIATELY PRECEDING NINETY (90) DAYS AND (II) $100,000, EXCEPT IN CASES OF THE PARTY’S WILLFUL MISCONDUCT.
6. Dispute Resolution. The parties agree that in the event of a dispute arising out of or relating to this Agreement, prior to engaging in any litigation, arbitration or mediation under the auspices of a third party, the parties shall endeavor in good faith to resolve the dispute for not less than twenty (20) days. In order to trigger such twenty (20) day period, one party must provide the other written notice of a dispute, citing this provision. 6(A). Mediation. If the matter is not resolved through negotiation, the parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration as set forth below. Once the twenty (20) day negotiation period has ended, either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation (or any arbitration) by any of the parties, their agents, employees, experts and attorneys, and by the mediator (or arbitrator) or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
6(B). Arbitration. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the parties so desire. At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the mediation process described above. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.
Should the mediation procedures set forth above fail to resolve the parties’ differences, the parties agree to submit their dispute to arbitration in accordance with the expedited commercial arbitration rules of JAMS then in effect. The arbitration shall be held in the New York metropolitan area before a sole arbitrator agreed to by the parties and selected from the panel of arbitrators of JAMS. (The arbitrator will permit appearance by teleconference unless the circumstances require otherwise.) The parties shall attempt in good faith to agree upon an arbitrator, and if there is no agreement, then the selection of the arbitrator shall be made by JAMS. The parties agree to keep the proceedings of the arbitration, all events leading up to the arbitration, and the outcome of the arbitration confidential. It is the intent of the parties that this Section provides a broad arbitration clause and is intended to include claims and causes of action regarding, arising out of, or relating to this Agreement, whether arising in contract, tort, statute, regulation, common law, or otherwise. The parties’ submission and agreement to arbitrate shall be specifically enforceable, and the judgment of the arbitrator granting an award to a party may be entered in any court having jurisdiction thereof. Notwithstanding the provisions of this Section, each party hereto agrees and acknowledges that certain actions of either party which violate the rights of the other party with respect to the maintenance of confidentiality of information may cause irreparable harm and significant injury to an extent that (i) may be extremely difficult to ascertain and (ii) an immediate remedy may be necessary yet cannot be adequately addressed within the dispute resolution timeframe set forth in this Section. Accordingly, each party agrees that with regard to any such violation or threat, the other will have the right to seek injunctive relief to enjoin any such breach or violation without the prior necessity of posting bond or other security or proving the likelihood that substantial damages will accrue to such party in the absence of such injunctive relief.
7. Waiver of Jury Trial. EACH PARTY KNOWINGLY, WILLINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM, OR OTHER PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION WITH THIS AGREEMENT.
8. Insurance. During the term of this Agreement and for a period of two (2) years thereafter, each party will, at its own expense, maintain and carry insurance in full force and effect which includes, without limitation, the following:
- General Liability: Commercially reasonable amounts, but in any event no less than $1,000,000 per occurrence for bodily injury, personal injury and property damage, $2,000,000 general aggregate, $2,000,000 products and completed operations aggregate.
- Worker’s Compensation: Statutory for state of hire.
- Employer’s Liability: $1,000,000 per accident for bodily injury and per employee/aggregate for bodily injury by disease.
- Umbrella Liability: Commercially reasonable amounts (excess of (a), (b) and (d) above) but in no event less than $2,000,000 per occurrence and in the aggregate.
- Professional Liability: $1,000,000 each loss and $2,000,000 aggregate covering the scope of any services (if any) provided under this Agreement or any Purchase Order. Claims made coverage is acceptable if the retroactive date of the claim precedes the Effective Date.
9. Payment Terms. Invoices are payable within thirty (30) days of invoice. Undisputed invoices outstanding after thirty (30) days shall be subject to interest charges of 1.5% per month, prorated daily. In the event of a disputed invoice, Practice shall promptly pay the undisputed amount. If Candid engages in any proceeding to collection unpaid invoices and prevails, Candid shall be entitled to recover its reasonable legal fees and expenses.
10. Refund. Once materials have been ordered by the Practice, the applicable fees are incurred and Candid shall not be required to make any refunds. In the event of the provision of defective aligners or other manufactured items, Candid shall provide replacements.
11. Force Majeure. Neither party will be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event(s)”). Force Majeure Events include acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike or embargoes. Each party will use reasonable and diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Events are minimized and resume performance under this Agreement. If a Force Majeure Event prevents the other party from carrying out its obligations under this Agreement for a continuous period of more than ten (10) business days, either party may terminate this Agreement immediately by giving written notice to the other party without any liability.
12. Assignment. Neither party may without written approval of the other assign this Agreement or transfer its interest or any part thereof under this Agreement to any third party except that a party may assign its rights or obligations to a third party in connection with the merger, reorganization or acquisition of stock or assets affecting all or substantially all of the properties or assets of the assigning party.
13. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity will be construed from this Agreement. This Agreement will be subject to a Business Associate Subcontractor Agreement, entered into by the parties as of the Effective Date.
14. Non-Solicitation. During the period commencing on the Effective Date and ending one year following the termination effective date, neither party will, without the other party’s prior written consent, directly or indirectly solicit or encourage any person to leave the employment or other service of the other party or its affiliates; provided, however, that each party will not be prohibited from making general employment solicitations not specifically directed at employees or affiliates of the other party or hiring any individuals who respond to such solicitations.
15. Survival. The following sections of this Agreement shall survive termination of this Agreement for any reason: All of the Terms and Conditions, and all of the other sections of the Agreement with respect to any patients continuing in treatment past termination, and with respect to any amounts unpaid and owed hereunder.
16. Applicable Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York without regard to its choice or conflicts of law principles. Venue of any litigation under this Agreement shall be in a court of competent subject matter jurisdiction in New York, New York.
17. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice,” and collectively, “Notices”) must be in writing and addressed to the parties at the addresses set forth in the first paragraph of this Agreement or to such other address that may be designated by the receiving party in writing in accordance with this Section. All Notices must be delivered by personal delivery, certified mail return receipt requested or nationally recognized overnight courier. Notices (other than notice of breach or termination) may also be made by electronic mail if receipt of notice is clearly acknowledged by the recipient by electronic mail. To send a notice by electronic mail, notice must be sent to two identified individuals at the other party. The parties designate the below individuals capable of receiving such notices, which may be updated from time to time upon written notice to the other party:
If to the CandidPro Provider:
To the Name and Contact indicated in the books and records of Candid, which Name and Contact is subject to change by the Provider on reasonable notice.If to Candid:
Candid Care Co.44 West 28th Street, 14th FloorNew York, NY 10001Attn: CEOEmail: email@example.comWith a copy to: Legal@candidco.com
18. Entire Agreement; Modification. The terms, provisions, agreements, and representations set forth in this Agreement constitute the entire agreement among the parties, supersede any prior or contemporaneous agreements, and the parties have not relied upon any agreements or representations in entering into this Agreement except for the agreements and representations set forth expressly in this Agreement. The rights and duties of the parties contained in this Agreement cannot be modified or waived in any way except as provided herein. Candid may modify the terms and conditions of this Agreement on not less than five (5) days’ notice (which may include notice provided by electronic mail), provided that other than modifications required by law, if the modification is material and adverse to the CandidPro provider, the CandidPro provider may terminate the Agreement at any time on not less than five (5) days’ notice, provided, however, that the parties shall reasonably cooperate to serve, on a reasonable basis, any individuals already in treatment by the CandidPro provider.
19. Definitional and Interpretative Provisions. The words "hereof," "herein" and "hereunder" and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions and headings used herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to the Articles, Sections, Exhibits and Schedules, respectively, of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. The terms “Dollars”, “dollars” and “$” shall mean United States dollars. Any singular term in this Agreement shall be deemed to include the plural and any plural term the singular, and references herein to any gender shall include the other gender. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words "without limitation," whether or not they are in fact followed by those words or words of like import. "Writing," "written" and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that with respect to any agreement or contract listed on any schedules hereto, any substantive amendments, modifications or supplements must also be listed in the appropriate schedule. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to "law," "laws" or to a particular statute or law shall be deemed also to include any and all applicable law. Any reference to a code, act, statute or regulation means that law, code, act, statute or regulation as amended or supplemented from time to time and any corresponding provisions of successor laws, codes, acts, statutes or regulations and any reference to any law, code, act or statute shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. References to a “day” or any number of “days” (without explicit qualification as “business days”) shall be interpreted as a reference to a calendar day or number of calendar days. If the last day for the giving of any notice or the performance of any act required or permitted under this Agreement is a day that is not a business day, the time for the giving of such notice or the performance of such act shall be extended to the next succeeding business day.
20. No Third Party Beneficiaries. Nothing in this Agreement, unless specifically so stated, is intended to or shall confer upon any person, entity, company, partnership, limited liability company or other unincorporated association other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
21. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, except to the extent that a party would be materially and unfairly prejudiced thereby.
22. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original, and all of which will constitute but one and the same instrument. Counterparts may be exchanged electronically.
Last Updated: 10/21/21