Terms & Conditions
Confidentiality of Business Information.
During the performance of this Agreement, the Parties may learn certain business, financial, operational, or other information about each other including, without limitation, the business relationships of each Party with their respective employees, independent contractors, referral sources, vendors, business relationships, customers and network participants. The Parties understand and acknowledge that such information of each Party (collectively, the "Confidential Information") is confidential, that it has been developed or obtained by the investment of significant time, effort and expense by each Party, that the respective Confidential Information of each Party is a valuable, special and a unique asset owned by such Party, and that each Party's Confidential Information provides that Party with a significant competitive advantage. Therefore, each Party hereby covenants and agrees to keep all Confidential Information of the other Party strictly confidential and to not use such information for any other purpose other than in connection with the provision of the Services as set forth in this Agreement. Without limiting the foregoing, the Parties shall not (a) disclose the Confidential Information of the other Party to any third party; (b) disclose the Confidential Information of the other Party within the Party's entity or among its affiliates except on a need-to-know basis; (c) copy, duplicate or modify any Confidential Information of the other Party except as necessary to provide the Services; (d) provide any description of the Parties' business to any individual or entity not a Party to this Agreement; (e) provide any opinion of the condition or the operations of the Parties' business to any individual or entity not a Party to this Agreement; or (f) use any of the other Party's Confidential Information in any manner to benefit itself or any other individual or entity not a Party to this Agreement. This Section 6 shall survive the termination of this Agreement.
Confidentiality of Patient Information; HIPAA Compliance.
During the performance of this Agreement, the Parties may learn or receive from each other, or create or receive on behalf of each other, patient healthcare, billing, or other confidential patient information ("Patient Information"). Patient Information, as the term is used herein, includes all "Protected Health Information," as that term is defined in 45 CFR 164.501. The Parties shall use Patient Information only as necessary to provide the services to as set forth in this Agreement. The Parties shall comply with all laws, rules and regulations relating to the confidentiality of Patient Information, including the applicable provisions of state law and the privacy regulations promulgated pursuant to Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). The Parties understand and acknowledge that they are fully responsible for ensuring compliance with these obligations by its current or former employees, officers, directors, agents, and representatives. The Parties will be responsible for any breach of this confidentiality obligation by such individuals or entities. The Parties will take all actions reasonably necessary to mitigate any breach of this confidentiality obligation, including pursuing all equitable remedies available against any current or former employee, agent, or representative of each Party who breaches this confidentiality obligation. The Parties agree to sign any other documents or agreements reasonably requested by the other Party to effectuate the provisions of this confidentiality obligation. The Parties may terminate this Agreement immediately, without liability, upon the other Party's breach of this confidentiality obligation. Notwithstanding any other provision of this Agreement, the Parties shall indemnify and hold each other harmless against any claims, penalties, fines or costs (including attorney's fees and court costs) related to such Party's breach of this provision. This indemnification obligation shall not be limited by any limitation on liability provision. This confidentiality obligation shall survive the termination of this Agreement. Manager shall execute the HIPAA Business Associate Agreement with Services provider attached as Exhibit A in addition to performing all other obligations regarding privacy and security of patient health information described in this Agreement. This Section 7 shall survive the termination of this Agreement.
The initial term of this Agreement is one (1) year commencing on the Effective Date (the "Initial Term"). Unless either Party delivers written notice to the other Party that it does not wish to renew this Agreement at least thirty (30) days prior to the expiration of the Initial Term, this Agreement shall automatically renew at the end of the Initial Term for additional terms of one (1) year each (each, an "Extended Term") unless and until terminated by either Party.
Termination Without Cause.
Either Party may terminate this Agreement at any time (with or without cause) by giving at least thirty (30) days written notice to the other Party in accordance with the terms herein. Such notice need not include any statement or explanation of the reasons for such termination. Notwithstanding the foregoing, the Parties agree that if this Agreement is terminated hereunder during the Initial Term, then the Parties shall not enter into any new or replacement agreement by or among the Parties for the performance of the Services, or of any services materially similar to the Services, until the expiration of the balance of what otherwise would have been the full Initial Term.
Termination For Cause.
In the event of material breach of this Agreement by a Party, the non-breaching Party may immediately terminate this Agreement at any time for cause by giving the breaching Party written notice in accordance with the terms herein. For purposes hereof, a "material breach" shall include (i) a breach of a Party's obligations under this Agreement that remains uncured after the expiration of thirty (30) days written notice of such breach by the non-breaching Party, (ii) fraud or criminal conduct committed by a Party, (iii) insolvency of a Party, or (iv) this Agreement held to be illegal under state or federal law. Notwithstanding the foregoing, the Parties agree that if this Agreement is terminated hereunder during the Initial Term, then the Parties shall not enter into any new or replacement agreement by or among the Parties for the performance of the Services, or of any services materially similar to the Services, until the expiration of the balance of what otherwise would have been the full Initial Term.
Obligations Upon Termination.
Upon termination of this Agreement, Services provider shall remain obligated to pay that portion of the Compensation accrued and in arrears for the Services performed by the Manager through the effective date of the expiration or termination of this Agreement, with such payments to be made as provided in Section 4 above. Other than for the payment of such portion of the Compensation, upon the termination or expiration of this Agreement, the Manager's obligations to perform the Services, and Services provider's obligation to pay the Compensation to the Manager, will cease and the Parties will have no further obligations to each other from such date other than the obligations set forth in Sections 6, 7, 12, 13, 25, 26 and 31 of this Agreement, each of which shall survive the termination or expiration of this Agreement.
Ancillary to the agreement of the Parties to not disclose or use the Confidential Information of the other Party as set forth in Section 6 above, and to further protect the value of each Party's Confidential Information, and to protect the business, operations, and prospects of each Party, during the term of this Agreement, and continuing for a period of two (2) years following the termination or expiration of this Agreement, the Parties hereby covenant and agree as follows:
Services provider shall not knowingly, directly or indirectly, either itself or through any employee, independent contractor, affiliate or other individual or Contracted Laboratory(s), solicit directly or intentionally induce or otherwise influence any referral sources, vendors, business relationships, customers or Network Providers of the Manager, or any other individual or entity that has a business relationship with the Manager, to work, deal, or engage in its business directly with Services provider or any affiliate of Services provider, to discontinue or reduce the extent of such relationship with the Manager, or to otherwise take any action to circumvent the existing business relationships between the Manager and such referral sources, vendors, business relationships, customers and Network Providers, and any such other individual or entity that has a business relationship with Manager.
Agreement, and under the terms of any agreements with such Party's employees and independent contractors in matters related to the Services to be performed under this Agreement, in a manner compliant with such federal, state, and local laws, rules and regulations. Nothing in this Agreement is intended to, or should be construed to, require referrals, the use of services or products, or the generation of business or revenue in any inappropriate manner. Notwithstanding any unanticipated effect of any of the provisions herein, the Parties intend to comply with 42 U.S.C. §1320a-7b(b), commonly known as the Anti-Kickback Statute, and any federal or state laws and regulations governing fraud and abuse or self-referrals relating to health care programs, as amended. This Agreement will be construed in a manner consistent with compliance with such statutes and regulations, and the Parties agree to take such actions as are necessary to construe and administer this Agreement consistent with such states and regulations. The Parties further believe in good faith and intend that the compensation paid under this Agreement is commercially reasonable and represents fair market value for the services it covers based on arm's length bargaining, the respective costs and risks, the value of similar services, and other appropriate factors. In the event that any federal or state court or federal or state agency of competent jurisdiction determines that this Agreement or any material provision of this Agreement could reasonably be construed to violate any federal or state law, rule or regulation, the Parties shall negotiate in good faith to amend this Agreement or the relevant provision hereof to remedy such violation in a manner that will not be inconsistent with the intent of the Parties or such provision.
Notices shall be given by personal service or by United States certified or registered mail, postage prepaid, return receipt requested, or by same-day or overnight private courier, addressed to the Party to be served at the address indicated next to such Party's signature on the signature page of this Agreement or such other address as the Party to be served may from time to time designate in a notice to the other Party. Notice personally served shall be effective when delivered to the Party upon whom such Notice is served. If served by registered or certified mail, notice shall be conclusively deemed served on the date shown on the return receipt, but if delivery is refused or the notice is unclaimed, notice shall conclusively be deemed given forty-eight (48) hours after mailing. If served by private courier, notice to the addressee shall be conclusively deemed given as confirmed by the private courier service making delivery.
Each Party shall execute such documents and instruments or accomplish all such acts as reasonably may be necessary or desirable to give effect to the intentions expressed in this Agreement.
Binding on Transferees.
This Agreement is binding upon and inures to the benefit of the Party's successors, permitted assigns, heirs, executors and administrators.
The captions in this Agreement are solely for the convenience of the Parties and shall not be construed as being part of this Agreement.
All questions with respect to the construction of this Agreement and the rights and liabilities of the Parties shall be governed by the laws of the State of Michigan, without regard to conflicts of laws principles. Any legal proceedings which may be required to enforce, interpret or construe this Agreement shall be instituted in Isabella County, Michigan, and the Parties hereby waive all objections to personal jurisdiction of such courts.
Time of the Essence.
With regard to the performance by the Parties of their obligations under this Agreement, time is expressly made of the essence.
This Agreement may be executed in counterparts and as executed shall constitute one agreement, binding on all Parties, even though all Parties do not sign the original or the same counterpart. Facsimile or digital execution or transmission of any signed document, and retransmission of any signed facsimile or digital transmission, will be the same as delivery of an original. At the request of any Party, the Party will confirm facsimile or digitally executed or transmitted signatures by signing an original document.
Each Party shall indemnify and hold harmless the other Party, its partners and employees (collectively the "Indemnified Parties"), from all suits, actions, claims, demands, damages, losses, expenses, including attorney's fees, costs and judgments of every kind and description to which the Indemnified Parties may be subjected to by reason of any breach of this Agreement (including, without limitation, Section 18 hereof), any injury or death to persons, any property damage, or any statutory or regulatory fines or penalties, resulting from or growing out of any action of commission, omission, negligence or fault of a Party committed in connection with this Agreement and/or the performance of the Services. This Section 25 shall survive the termination of this Agreement.
Limitation of Liability.
Except as otherwise explicitly set forth in this Agreement, each Party, including, without limitation, its agents, officers, employees, invitees, or guests, and any of its other contractors or affiliates and their agents, officers, and employees, shall not be liable to the other Party for (i) consequential damages, (ii) loss of profits, (iii) business interruption, (iv) damage to property or death or injury to persons from any cause whatsoever including, without limitation, professional liability or malpractice, acts of vandalism, loss of trade secrets or other confidential information, power failure, fire, strikes, shortage of supplies, or any cause whatsoever in or any part thereof, UNLESS SUCH CLAIMS, LOSSES, COSTS, DAMAGES, OR EXPENSES ARE THE RESULT OF THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY AND/OR ITS AFFILIATES AND/OR THEIR RESPECTIVE AGENTS, OFFICERS, OR EMPLOYEES. This Section 26 shall survive the termination of this Agreement.
No waiver of any provision herein shall constitute a general waiver for future purposes.
If any provision or provisions of this Agreement are determined to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision or the rest of the Agreement, so long as the basic intent of the Parties in entering into the Agreement may be fulfilled.
This Agreement has been negotiated at arm's length and between Parties sophisticated and knowledgeable in the matters dealt with in this Agreement. Accordingly, any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the Party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the purpose of the Parties and this Agreement.
This Agreement together with any other agreements and instruments executed concurrently herewith memorialize and constitute the final expression and the complete and exclusive statement of agreement and understanding between the Parties with respect to the matters set forth herein. It supersedes and replaces all prior negotiations, proposed agreements, and agreements, whether written or unwritten. Each of the Parties to this Agreement acknowledges that it has not executed this Agreement in reliance upon any promise, representation, statement, or warranty whatsoever, express or implied, which is not expressly contained in this Agreement or in reliance upon any belief as to any fact not expressly recited herein.
If any arbitration, suit, or action is instituted to interpret or enforce the provisions of this Agreement, to rescind this Agreement, or otherwise with respect to the subject matter of this Agreement, the Party prevailing on an issue will be entitled to recover with respect to such issue, in addition to costs, reasonable attorney fees incurred in the preparation, prosecution, or defense of such arbitration, suit, or action as determined by the arbitrator or trial court, and if any appeal is taken from such decision, reasonable attorney fees as determined on appeal. This Section 31 shall survive the termination of this Agreement.
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