DRC shall provide to Client the services (the “Services”) set out in one or more Order Forms to be provided by DRC and accepted by Client (each, an “Order Form”). The initial accepted Order Form is attached hereto as Exhibit A. Additional Order Forms shall be deemed issued and accepted only if signed by DRC and Client.
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of DRC in the course of performing the Services (collectively, the “Deliverables”) except for any Confidential Information of Client or Client materials shall be owned by DRC. DRC hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within ten (10) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure and unless otherwise prohibited, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, DRCs, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
With regard to its use and/or disclosure of Protected Health Information (“PHI”), the Parties shall be subject to the terms and conditions of the Business Associate Agreement (“BAA”) executed between the Parties and incorporated herein by reference. The Parties agree to amend or execute any necessary agreements as necessary to comply with all applicable rules and regulations.
EXCEPT FOR DRC’S REPRESENTATIONS HEREIN, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO CREATE ANY EXPRESS OR IMPLIED WARRANTY, OR EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ON THE PART OF DRC, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED.
Each Party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and its affiliates, and their respective directors, officers, employees, and agents (each, an “Indemnified Party”), from and against all losses, liabilities, damages, settlements, claims, actions, suits, penalties, fines, costs or expenses (including reasonable attorneys’ fees, experts’ fees and other costs of investigation or defense at any stage of the proceedings) to the extent relating to a Third Party claim, action or demand (any of the foregoing, a “Loss”) arising out of or resulting from: (a) the negligence, recklessness or intentional acts or omissions of the Indemnifying Party or its affiliates, and their respective directors, officers, employees and agents with respect to this Agreement and the Services contemplated hereby; (b) any breach of a representation or warranty of the indemnifying party hereunder; (c) any act or omission by Client that results in DRC submitting any false or fraudulent claim to any governmental payor or private third party payor; and (d) a breach of any applicable law by such Indemnifying Party.
The Parties agree that no payment or other remuneration that is offered, paid, solicited or received hereunder is to improperly induce any person to (i) make referrals for items or services for which payment may be made in whole or in part under Medicare or other Federal Healthcare Programs (as defined in 42 CFR § 1320a-7b(f)); or (ii) purchase, lease, order or arrange for or recommend purchasing, leasing, or ordering any items or services that may be covered by Federal Healthcare Programs.
This Agreement, including and together with any related Order Form, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Order Form, the terms and conditions of the Order Form shall supersede and control.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to reflect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Client shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of DRC. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Client of any of its obligations under this Agreement. DRC may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of DRC’s assets without Client’s consent. DRC may use subcontractors to perform Services (or portions thereof); provided, however, that such subcontracting shall not relieve DRC from responsibility for performance of its duties hereunder.
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by DRC shall be under its own control, Client being interested only in the results thereof. DRC shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet the Client’s final approval and shall be subject to the Client’s general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, employer-employee or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of Puerto Rico, without giving effect to the conflict of law’s provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of Puerto Rico.
Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than U.S. District Court for the District of Puerto Rico or, if such court does not have subject matter jurisdiction, the courts of Puerto Rico sitting in San Juan, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in U.S. District Court for the District of Puerto Rico or, if such court does not have subject matter jurisdiction, the courts of Puerto Rico sitting in San Juan. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Each party acknowledges that any controversy that may arise under this agreement, including exhibits, schedules, attachments, and appendices attached to this agreement, is likely to involve complicated and difficult issues. Therefore, each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this agreement, including any exhibits, schedules, attachments, or appendices attached to this agreement, or the transactions contemplated hereby.
The DRC shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of DRC including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 90 days, Client shall be entitled to give notice in writing to DRC to terminate this Agreement.
Both Parties agree that during the Term, and for two (2) years following the termination of this Agreement or the maximum time period permitted by applicable law, regardless of cause, that neither Party shall directly or indirectly solicit, or cause others to solicit, the employment of any employee of the other Party without the other Party’s expressed prior written consent, and that neither Party shall interfere with the other Party’s relationship with, or endeavor to entice away from the other Party, any person who, on the date of the termination of this Agreement and/or at any time during the one (1) year period prior to the termination of the Term, was a customer of the other Party or otherwise had a material business relationship with the other Party. Nothing herein shall preclude either Party from hiring employees or contractors of the other Party (or its subsidiaries) to the extent such employees or contractors respond, without any solicitation by or on behalf of the hiring party, to advertisements or job openings published or otherwise made generally available to the public by the hiring party.
If Client has contracted a third party provider of services competitive with the Services, at no time will the Client require DRC to train such third party provider’s staff, share DRC’s SOPs and strategies, or perform any activities that could reasonably be considered harmful for DRC.
Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other Party at the addresses set forth on the Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this section). Each Party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section.
This Agreement may be executed electronically and in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 11, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. Legal Compliance. Client shall be solely responsible to verify the rules and regulations for using the Service in accordance with their state and federal laws, including HIPAA and other privacy regulations. Client should make its own independent and informed decision for when and how the Services are utilized and hereby agrees to defend and indemnify DRC for any and all claims, fines, and damages arising out of Services rendered in accordance with this Agreement.
General Definititions. The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Security Incident, Subcontractor, and Use.
Specific Definitions. The following terms shall have the meaning set forth below:
Business Associate agrees to:
In no event shall Business Associate’s total liability, exclusive of any applicable insurance coverage, if any, whether in tort, contract or otherwise, for any direct, indirect, actual, contemplated, foreseen, exemplary, incidental, or consequential damages, including any duty to indemnify, hold harmless and defend, from any and all claims, liabilities, losses, costs, expenses, disputes, controversies or suit brought by Covered Entity, any patient, including patient’s heir or assigns, or any third party (the “Claim”) against Business Associate exceed the total amount of fees paid pursuant to the Underlying Agreement by Covered Entity to Business Associate in the six (6) months preceding the notice of any Claim.
Covered Entity agrees to indemnify, hold harmless and defend (at Business Associate’s election) Business Associate, its officers, agents or employees from and against all controversies, liabilities, demands, Claim, penalties, damages, losses, costs and expenses, (including costs and reasonable attorneys’ fee), or claims, for violations of State or federal law or injury or damages that are caused by or result from the acts or omissions of Covered Entity, its officers, employees, agents and subcontractors with respect to the use, maintain, store, modify, transmit and/or disclosure of Covered Entity’s PHI, whether based, in whole or in part, on a violation or purported violation of the Agreement, HIPAA Rules, the Federal laws relating to the confidentiality of drug and/or substances abuse (42 C.F.R. §§ 2.1, et seq.), or other State or Federal laws regarding the privacy of patient health care records.
Any notices or communications to be given under the terms of this Agreement shall be made to the addresses given in the signature page, below, via certified mail return receipt requested. Each party named above may change its address upon thirty (30) days written notice to the other party.