AGREEMENT FOR SERVICES
AGREEMENT made November 21, 2017 by and between Mobile Health Medical Services, P.C., a New York professional corporation, with its principal place of business located at 229 West 36th Street, 10th Floor, New York, New York 10018 (hereinafter referred to as “Mobile Health”) with its principal place of business located at (hereinafter referred to as the “Client”).
WHEREAS, Mobile Health provides occupational health and employee screening services; and
WHEREAS, the Client seeks to retain the services of Mobile Health;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration the parties intend to be legally bound as follows:
1. SERVICES TO BE PROVIDED. Mobile Health agrees to provide and the Client agrees to purchase the services as described in Schedule 1 attached hereto and made a part hereof (the “Services”). If Client wishes to engage Mobile Health to provide other services, Schedule 1 may be supplemented by additional service orders (“Service Orders”) signed by both parties. This Agreement shall also apply to all Service Orders. Mobile Health may subcontract some or all of the Services to third parties with the prior permission of Client.
2. RESPONSIBILITIES OF CLIENT. Client will provide such assistance, cooperation and resources as may be necessary for Mobile Health to provide the Services. Client acknowledges that its failure to do so may adversely affect Mobile Health’s ability to perform the Services, and that in such event, Mobile Health will not be responsible for any resulting delay.
3. FEES AND PAYMENT TERMS. Client shall pay Mobile Health the fees set forth for the Services in accordance with Schedule 1 and any applicable Service Order. The fees shown in Schedule 1 are for the Initial Term of the Agreement only and are subject to change thereafter. Client agrees to coordinate payment for services detailed in Schedule 1 and any applicable Service Orders. When applicable, Client agrees to promptly pay all invoices submitted by Mobile Health. In the event Client fails to pay an invoice within thirty (30) days following receipt, Mobile Health reserves the right to suspend Services to the Client. Mobile Health also reserves the right to impose a one and one half percent (1 and 1/2%) late fee per month for unpaid balances over sixty (60) days. Client is responsible for any collection agency and legal fees.
4. TERM AND TERMINATION. This Agreement will begin November 21, 2017 and continue in full force and effect until November 21, 2018 (“Initial Term”) and will automatically renew for one (1) year periods thereafter, (“Extension Terms”) unless either the Initial or Extension Terms are terminated in accordance with the provisions of this Section 4.
(a) Termination Upon Bankruptcy. If either party becomes subject to any bankruptcy law and/or if the business of either party is placed in the hands of a receiver, or trustee in bankruptcy, whether by voluntary act of such party or otherwise, the other party will have the right to terminate this Agreement, effective immediately and without notice.
(b) Termination Upon Insolvency. If either party becomes insolvent or admits its inability to pay its debts generally as they become due, the other party will have the right to terminate this Agreement, effective immediately and without notice.
(c) Termination Upon Breach. Except as otherwise expressly provided in this Agreement, if a material breach of this Agreement occurs, the injured party shall provide the other party with written notice of this breach. If this breach is not cured within thirty (30) days, or ten (10) days in the event of non-payment by Client, of the receipt of written notice, the injured party will have the right to terminate this Agreement immediately at the conclusion of the notice period, unless the breach is of a nature that cannot be cured. In the event of such termination, neither party will be relieved of any obligations incurred prior to termination and each party will have any and all rights and remedies available at law or equity.
(d) Termination for Convenience. Either party may voluntarily terminate this Agreement with sixty (60) days written notice to the other party. Client is responsible to pay Mobile Health for all services rendered up until the date of termination.
(e) Termination Based on Legal Event. Notwithstanding any other provision of this Agreement, if the governmental agencies which administer the Medicare, Medicaid or other federally funded programs, or any other federal, state or local governmental agency, any court or administrative tribunal, or any professional association with jurisdiction over either party passes or promulgates any new law, rule, regulation, standard, interpretation, order, decision or judgment, including, but not limited to, those relating to any regulations pursuant to federal or state anti-kickback or self-referral statutes (collectively and individually, the “Legal Event”), which, in the reasonable interpretation and judgment of counsel for either party causes either party to be in material violation of applicable statutes, regulations or rules, or in risk of prosecution due to the continued performance of this Agreement or any provision hereof (collectively and individually, the “Adverse Result”), the adversely affected party has the right to notify the other party of its intent to terminate this Agreement effective in thirty (30) days from the date written notice is provided. During said thirty-day period, the parties will negotiate, in good faith, to amend this Agreement to eliminate the Adverse Result without affecting either party’s rights in any material way. In the event that the parties are unable to re-negotiate this Agreement to eliminate the Adverse Result without affecting either party’s rights in any material way, this Agreement will terminate upon the expiration of said thirty-day period; provided, however, if this Agreement can be amended such that the Adverse Result is eliminated and the interests, rights and duties of each of the parties under this Agreement are not adversely affected in a material way, the parties shall effectuate such amendment and the Agreement will not terminate.
(f) Return of Information. Following the expiration or termination of this Agreement, except as otherwise set forth herein, each party will return to the other all proprietary and Confidential Information, as defined herein, of the other party, in whatever form (hard copy, electronic or other form) maintained and will not retain any copies of this information.
(g) Surviving Obligations. Obligations under the following provisions will survive the termination or expiration of this Agreement: 3, 4(d), 6, 7, 8, 9, 10, 13, 14 and 17.
5. REPRESENTATIONS AND WARRANTIES.
(a) Client represents and warrants that (i) it has the power and authority to enter in to this Agreement and to fully perform its obligations hereunder, (ii) this Agreement has been executed by its duly authorized representative, and (iii) it is under no contractual or other legal obligation that would interfere in any way with the full, prompt, and complete performance of its obligations pursuant to this Agreement.
(b) Mobile Health represents and warrants that it is an independent contractor, and nothing in this Agreement will be deemed to place the parties in the relationship of employer-employee, principal-agent, partners or joint venturers. Mobile Health will be responsible for paying the payroll taxes and withholdings, employment taxes and workers compensation for its employees. The method and means of providing the Services under this Agreement will be under the exclusive control, management, and supervision of Mobile Health.
(c) Client represents and warrants that it is solely and ultimately responsible for meeting all compliance requirements for individuals who receive the Services under this Agreement, and that Mobile Health assists the Client, but is not responsible for meeting compliance requirements.
(d) Client acknowledges that Mobile Health is not a legal services firm, does not provide legal, business or tax advice and that the accuracy, completeness, adequacy or currency of any representations of Mobile Health with respect to legal, business or tax implications of Mobile Health’s services is not warranted or guaranteed. Client acknowledges that Mobile Health’s websites, representations and services are not substitutes for the advice or services of an attorney and that Client should consult a lawyer or other appropriate professional for all legal, business or tax advice.
(a) Client Indemnity. To the maximum extent allowed by law, Client will indemnify, defend, and hold harmless Mobile Health and its shareholders, directors, officers, employees, and agents (the “Mobile Health Indemnitees”), from and against any and all expenses (including reasonable attorneys’ fees), judgments, fines, penalties, losses, claims, actions by any local, state or federal agency, damages, liabilities, interest incurred or amounts paid in settlement (where there is no admission or judicial finding of liability) (collectively referred to as “Claims”), that the Mobile Health Indemnitees may suffer or incur arising out of or in connection with: (a) Client’s negligence, willful misconduct, or breach of any representation, warranty, or other obligation under this Agreement; (b) Client’s clients or its or their employees or agents based on Services rendered in connection with this Agreement; (c) any personal injury (including death) or damage to property resulting from Client’s or its clients’ or its or their agents’ acts or omissions; or (d) any law, regulation or other requirement relating to wages and/or benefits of any employee of Client under state law, federal law, local law or any other authority. The Mobile Health Indemnitees will give prompt notice of any Claim to the Client, and the Client will defend the Mobile Health Indemnitees at the Mobile Health Indemnitees’ request. Mobile Health reserves the right to employ counsel at its own expense and participate in the defense and/or settlement of any Claim.
(b) Mobile Health Indemnity. To the maximum extent allowed by law, Mobile Health will indemnify, defend, and hold harmless Client and its shareholders, directors, officers, employees, and agents (the “Client Indemnitees”), from and against any and all expenses (including reasonable attorneys’ fees), judgments, fines, penalties, losses, claims, actions by any local, state or federal agency, damages, liabilities, interest incurred or amounts paid in settlement (where there is no admission or judicial finding of liability) (collectively referred to as “Claims”), that the Client Indemnitees may suffer or incur arising out of or in connection with: (a) Mobile Health’s negligence, willful misconduct, or breach of any representation, warranty, or other obligation under this Agreement; (b) Mobile Health’s clients (other than the Client) or its or their employees or agents based on Services rendered in connection with this Agreement; or (c) any personal injury (including death) or damage to property resulting from Mobile Health’s or its clients’ (other than the Client) or its or their agents’ acts or omissions. The Client Indemnitees will give prompt notice of any Claim to Mobile Health, and Mobile Health will defend the Client Indemnitees at the Client Indemnitees’ request. Mobile Health reserves the right to employ counsel at its own expense and participate in the defense and/or settlement of any Claim.
7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING AND ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL MOBILE HEALTH BE LIABLE TO CLIENT FOR ANY DAMAGES OR OTHER LIABILITY ARISING OUT OF OR RELATING TO ANY LAW, REGULATION OR OTHER REQUIREMENT RELATING TO WAGES AND/OR BENEFITS OF ANY EMPLOYEE OF CLIENT UNDER STATE LAW, FEDERAL LAW, LOCAL LAW OR ANY OTHER AUTHORITY.
8. CONFIDENTIAL INFORMATION.
(a) Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” means the information and documentation of a party that (1) has been marked “confidential” or with words of similar meaning at the time of disclosure by the entity disclosing the information; (2) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing entity and marked “confidential” or with words of similar meaning; (3) with respect to information of a party, whether marked “confidential” or not, includes but is not limited to information regarding business plans (strategic and tactical) and business operations, information regarding administrative, financial, or marketing activities; pricing and fee information, personnel information, products and/or service offerings (including specifications and design), processes (e.g., technical and logistical), and any other information or data that would appear to a reasonably prudent person to contain proprietary or confidential information of a party, or any Confidential Information derived from information of a party. The term “Confidential Information” does not include any information or documentation that was: (i) already in the possession of the receiving party without an obligation of confidentiality; (ii) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (iii) obtained from a source other than the disclosing party without an obligation of confidentiality; or (iv) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the receiving party).
(b) Obligation with Respect to Confidential Information. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep such information confidential.
(c) Cooperation to Prevent Disclosure of Confidential Information. Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
(d) Protected Health Information. Each party agrees to fully comply with the Health Insurance Portability and Accountability Act of 1996 and its associated regulations and, more specifically, in 45 C.F.R. §§ 160-164 (collectively referred to as (“HIPAA”)), any applicable state privacy and/or security laws, any applicable implementing regulations and the requirements of the Health Information Technology for Economic and Clinical Health Act, as incorporated in the American Recovery and Reinvestment Act of 2009 (the “HITECH Act”), and any regulations adopted or to be adopted pursuant to the HITECH Act that relate to the obligations of either party hereto. All Protected Health Information (as that term is defined in 45 C.F.R. § 160.103) received from, or received, maintained, transmitted or created on behalf of, the parties in connection with the Services (collectively, “PHI”) shall be subject to the business associate agreement (“BAA”) between the parties attached to and incorporated into this Agreement as Exhibit A, which may be amended and/or restated from time to time by the parties. In the event of a conflict between this Agreement or any Service Order, on the one hand, and the BAA, on the other hand, relating to creation, receipt, maintenance or transmission of PHI, the terms and conditions of the BAA shall control.
9. NON-SOLICITATION. Client (including any person, firm, corporation or other entity with which Client is associated) agrees that it will not, during the Term or any Extension Term of this Agreement and for a period of two (2) years thereafter, directly or indirectly solicit, induce, or encourage any employee of Mobile Health to leave Mobile Health’s employ.
10. INJUNCTIVE RELIEF. The parties acknowledge that a breach of the obligations set forth in Sections 8 or 9 would cause irreparable harm that cannot be remedied by the payment of monetary damages alone. Accordingly, the party alleging a breach of Section 8 or 9 will be entitled to preliminary and permanent injunctive relief and other equitable relief, without the posting of a bond.
11. NO PHYSICIAN/PATIENT RELATIONSHIP. This Agreement does not intend to establish a physician/patient relationship between Mobile Health and any individual for which the Client requests Services.
12. FORCE MAJEURE. Neither party shall be liable for defaults or delays due to any causes (including but not limited to strikes, wars, acts of sabotage or terrorism, or natural disasters, acts of civil or military authorities, accidents, delays in carriers) that are beyond its control and that are not due to its fault or negligence. Each party shall notify the other in case of a force majeure occurrence within five (5) days after the beginning thereof. The time for performance will be extended for a period equal to the Force Majeure event, but in no event longer than thirty (30) days, and the party receiving notice may, by providing notice to the other party, extend the time for performance, or cancel all or any unperformed part, of this Agreement.
13. SEVERABILITY. In the event that any provision of this Agreement is subject to an interpretation under which it would be void or unenforceable, such provision will be construed so as to constitute it a valid and enforceable provision to the fullest extent possible, and in the event that cannot be so construed, it will, to that extent, be deemed deleted and separable from the other provisions of this Agreement, which will remain in full force and effect and will be construed to effectuate the purpose of this Agreement to the maximum legal extent.
14. GOVERNING LAW AND VENUE. This Agreement and performance hereunder shall be governed by and construed in accordance with the substantive laws of the State of New York, excluding its conflict of law rules. The venue for any judicial proceeding will lie exclusively in the state and federal courts of New York County, New York. Each of the parties hereby submits to the jurisdiction of such courts.
15. HEADINGS AND PRESUMPTIONS. The headings of the sections of this Agreement are provided for convenience only and may not be used to limit or construe the contents of this Agreement. As the Agreement is a negotiated agreement, no presumption against either party exists on the basis that it was responsible for preparing this Agreement or any part of it.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each of which will be deemed an original for all purposes, and which together will constitute one and the same agreement.
17. ASSIGNMENT. Neither party may assign its rights or delegate its duties under this Agreement without the prior written consent of the other party, except that, without such consent, (i) either party may assign and transfer its rights and obligations hereunder to any third party that succeeds to all or substantially all of its business and assets and assign its right to receive its payments hereunder and (ii) Mobile Health may subcontract its obligations as set forth above, provided that Mobile Health remains primarily liable to the Client. This Agreement will be binding upon and will inure to the benefit of Client and Mobile Health and their respective successors and permitted assigned.
18. NOTICE. Any and all notices or other communications or deliveries required or permitted to be given pursuant to this Agreement shall be deemed to have been duly given for all purposes when hand delivered or sent by certified or registered mail (return receipt requested and postage paid), overnight mail or courier as follows:
If to Mobile Health:
229 West 36th Street, 10FL
New York, New York 10018
Attn: Andrew Shulman, CEO
If to Client:
19. NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the benefit of Mobile Health and Client and no third party beneficiary status shall be created with respect to any other entity or person.
20. ENTIRE AGREEMENT. This Agreement and the attached Schedule(s), Exhibit(s) and any Service Orders, which are incorporated into this Agreement by reference, constitute the complete and exclusive understanding between the parties with respect to the subject matter hereof, superseding all prior negotiations, preliminary agreements, correspondence or understandings, written or oral. No waiver or modification of any provision of this Agreement will be binding unless in writing and signed by each of the parties. No waiver of a breach under this Agreement will be deemed to constitute a waiver of a further breach, whether of a similar or dissimilar nature.