Last Updated: February 24, 2022
This Consulting Agreement (this “Agreement”), together with the Consulting Order Form, is made by and between WeInfuse, LLC (“WeInfuse”) and the undersigned client (“Client”), entered and effective as of the Effective Date set forth in the Order Form.
WHEREAS, WeInfuse is an infusion software and consultancy organization based in Texas;
WHEREAS, Client desires to retain WeInfuse for the performance of certain consulting services as outlined in Exhibit A (the “Services”);
WHEREAS, WeInfuse desires to perform such Services for Client on the terms and conditions described in the Consulting Order Form and this Agreement, including Exhibit A. Entering this Agreement and performing the Services herein are contingent upon Client signing WeInfuse’s Software License Order Form and using WeInfuse’s software platform for at least one year;
WHEREAS, the execution and delivery of the Consulting Order Form, this Agreement and the Software License Order Form are conditions precedent to WeInfuse being retained by Client; and
NOW, THEREFORE, in consideration of the mutual promises between the parties and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree to the following terms:
- Status of Parties and Commitment to Others. It is expressly understood and agreed that, in the performance of this Agreement, WeInfuse shall at all times act as an independent contractor with respect to Client. Further, it is expressly understood and agreed by the parties that nothing contained in this Agreement shall be construed to create a joint venture, fiduciary relationship, partnership, association, or other affiliation or like relationship between the parties. The parties specifically agree that their relationship is and shall remain that of independent parties to a contractual relationship as set forth in this Agreement. In no event, shall either party be liable for the debts or obligations of any other except as otherwise specifically provided in this Agreement. Each party represents and warrants that the execution of this Agreement does not constitute a breach of any other agreement between such party and any third party.
- Term and Termination.
- Term. This Agreement shall become effective and operative on the Effective Date and shall continue in full force and effect for four (4) months (the “Initial Term”). After the Initial Term, this Agreement may be renewed by mutual written agreement of the parties (“Renewal Term”). The Initial Term and any Renewal Term(s) are herein together referred to as the “Term” of this Agreement.
- Without Cause. After the Initial Term, either party may terminate this Agreement at any time without cause by giving fourteen (14) days’ prior written notice to the other party.
- With Cause. At any time during any Term, either party may terminate this Agreement if the other party has breached the Agreement; provided however, the breaching party is given fourteen (14) days’ written notice to cure any such breach. If the breaching party cures the breach within fourteen (14) days or can demonstrate reasonable diligence in curing such breach, then this Agreement will not terminate pursuant to this Paragraph 2(b)(ii).
- Insolvency. Either party may terminate this Agreement upon ten (10) days’ written notice in the event the other party becomes insolvent or fails to pay or admits in writing its inability to pay, its debts as they mature; or a trustee, receiver or other custodian is appointed for the other party for all or a substantial part of the other party’s property; or any bankruptcy reorganization, debt, arrangement, or other proceeding under any bankruptcy or insolvency law or any dissolution or liquidation proceeding is instituted by or against the other party and if instituted against the other party.
- Compensation and Payment.
- Client agrees and contracts to pay WeInfuse as compensation for WeInfuse’s Services the amount(s) detailed in the Consulting Order Form.
- During the Term of this Agreement, Client will reimburse WeInfuse for all reasonable business and travel related expenses associated with performing the Services. To the extent practicable, WeInfuse will seek Client’s pre-approval for such business and travel related expenses.
- In the event of the termination of this Agreement, Client shall (i) immediately pay WeInfuse for any and all outstanding amounts due to WeInfuse related to reimbursements as set forth in Paragraph 3(b), (ii) pay all outstanding invoices pursuant to invoice terms, and (iii) pay WeInfuse for all Services up to the date of the termination of this Agreement even if not yet invoiced by WeInfuse pursuant to the terms and conditions of this Agreement.
- Confidential Information. In connection with this Agreement, each party may have access to the other party’s confidential or proprietary information and materials, including without limitation, information concerning customer / patients lists, marketing strategies, marketing templates, algorithms, intellectual property, operations, and plans (“Confidential Information”). Each party hereby agrees to treat with confidentiality all information and materials provided by and relating to the other party and to use such Confidential Information solely for the purposes of this Agreement. Except as may be required in carrying out the obligations hereunder, each party agrees not to disclose any such Confidential Information to any third party (other than third parties hired or retained by the other party with a “need to know”) without the prior written consent of the other party. The foregoing provisions will not be applicable to any information that was previously known by the other party, (as evidenced by documents or other written materials), that is or becomes publicly available, other than through a breach by a party of its agreements contained herein, or that is required to be disclosed by judicial or administrative process in connection with any action, suit, proceeding, or claim or otherwise by applicable law. Each party will give immediate written notice to the other party of any known improper disclosure of information and any such judicial, administrative, or legal requirement prior to disclosing any information in order to provide the other party, if it so desires, the opportunity to seek an appropriate protective order. Confidential Information will be deemed “publicly available” if it becomes a matter of public knowledge, is in the public domain, is contained in materials available to the public or is obtained by a party (or that party’s directors, officers, employees, or outside agents) from any source other than obtained due to a breach of this provision; provided that such source is not bound by a confidentiality agreement with respect to such information.
- Mutual Indemnification. Each party agrees to indemnify, defend, and hold harmless the other party from any claim, liability, or loss (including reasonable attorneys’ fees) arising out of or resulting from the willful misconduct or negligent acts or omissions of the other party, or any of its agents or employees or its, or their, performance of or failure to perform the provisions of this Agreement. Each party shall notify the other immediately in writing of any claim of injury or damage related to activities performed pursuant to this Agreement. The parties shall cooperate with each other in the investigation and disposition of any claim arising out of the activities performed pursuant to this Agreement, provided that nothing shall require either party to disclose any documents, records or communications that are protected under the peer review privilege, the attorney-client privilege or the attorney work-product privilege. The provisions of this section shall survive the termination of this Agreement.
- Limitation of Liability. IN THE EVENT THAT IT IS DETERMINED THAT WEINFUSE FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, WEINFUSE’S TOTAL LIABILITY, IF ANY, TO CLIENT FOR ALL CLAIMS AND CAUSES OF ACTION, AND ALL THEORIES OF LIABILITY, RELATING TO THIS AGREEMENT AND THE SERVICES SHALL BE LIMITED TO, AND SHALL NOT EXCEED THE AMOUNT EQUAL TO THE TOTAL OF THREE MONTHS OF FEES PAID BY CLIENT TO WEINFUSE IMMEDIATELY PRECEDING THE DATE SUCH LIABILITY AROSE. THIS AMOUNT REPRESENTS THE FULL MEASURE OF DAMAGES, IF ANY, DUE TO CLIENT. THIS LIMITATION ON LIABILITY SHALL APPLY TO ANY AND ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT.
- General Consultancy Services. Client acknowledges and agrees that WeInfuse is acting in its capacity as a business consultant and that no WeInfuse officer, director, employee, partner, or agent is giving professional medical billing, accounting or legal advice unless formally retained in writing to do so by separate engagement.
- Non-Solicitation of WeInfuse Employees. Without prior written consent otherwise, Client covenants and agrees that, during the Term of this Agreement and for a period of one (1) year after the termination thereof, regardless of the reason for such termination, the Client will not directly or indirectly solicit, induce, or communicate with any person who is an employee or contractor of WeInfuse or was an employee or contractor of WeInfuse during the final four months of this Agreement about employment, hiring, or otherwise engaging as an employee, contractor, or otherwise. If there is a conflict between this provision and a similar provision in Client’s WeInfuse software license agreement, such WeInfuse software license agreement shall control.
- Duration. This Agreement shall continue in full force and effect until either party terminates the Agreement pursuant to Paragraph 2. Paragraphs 1, 3(c), 4, 5, 6, 7, 8, 9, 10, 11, 12 and 14 of this Agreement shall continue in full force and effect following the termination of this Agreement.
- Jurisdiction. This Agreement will be construed and the legal relations between the parties hereto determined in accordance with the laws of the State of Texas without regard to its conflicts of laws rules. The parties agree that the state and federal courts sitting in Dallas, Dallas County, Texas, will be the proper forums for any legal controversy arising in connection with this Agreement, and the parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of such courts for such purposes. So far as is permitted under applicable law, this consent to personal jurisdiction will be self-operative and no further instrument or action, other than service of process, will be necessary in order to confer jurisdiction upon the parties in any such court.
- Notice. Any notice required or permitted to be given hereunder must be (i) sent via email to valid email addresses set forth in the Order Form, as applicable or (ii) in writing sent certified mail, return receipt requested via USPS, to the addresses set forth in the Order Form.
- Exclusivity. This Agreement is non-exclusive meaning that each party may engage with other clients or retain other individuals or companies as employees or contractors, as applicable, to provide the same or similar services during the Term of this Agreement.
- Counterparts. The Order Form along with the Agreement, as applicable, may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
- Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties pertaining to its subject matters and supersedes all prior and contemporaneous agreements or understandings relating to its subject matters between the parties. This Agreement may not be amended unless in writing signed by both parties. Client may not assign this Agreement to any person or entity without prior written consent of WeInfuse which such consent may not be unreasonably withheld, delayed or conditioned. The terms of this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns. The provisions of this Agreement are severable; if any provision of this Agreement is determined by a proper court or authority to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect or impair the remainder of this Agreement, and this Agreement shall remain in full force and effect without such invalid, illegal, or unenforceable provision. No waiver of any provision of this Agreement or any breach of this Agreement shall be effective unless such waiver is in writing and signed by the waiving party and any such waiver shall not be deemed a waiver of any other provision of this Agreement or any other or subsequent breach of this Agreement.
- Client Duties. In order for WeInfuse to fulfill its obligations and adequately perform the Services as contemplated herein, Client shall communicate with WeInfuse on matters pertaining to the Services and shall devote reasonably sufficient time and attention to discharge its duties under this Agreement.
- Description and Scope of WeInfuse Services. WeInfuse shall perform the Services as more fully described herein and in accordance with the terms and conditions set forth in this Agreement and in this Exhibit A.
- Provide general and strategic advice on setting up and establishing a provider / physician-based infusion center; and
- As it relates to the provision of operating an infusion center, such general and strategic advice shall include:
- Structural set up (entity and organizational)
- Payer contract issues
- Purchasing processes
- Billing Processes
- Business risks and areas of concern.
- WeInfuse’s Performance of Services.
- Service Level. WeInfuse represents and warrants that the Services will be performed in an efficient, professional and skillful manner in accordance with its experience in the industry.
- Work-Product. WeInfuse may disclose Client as a client and may utilize examples of the work-product generated by WeInfuse on behalf of Client.
- Logo Use. Client hereby grants to WeInfuse a limited, revocable license to use Client’s logo, slogans, marks and trademarks (“Client Marks”) for the limited purpose of marketing its services to other current or potential clients.
The parties agree that this Exhibit A is incorporated into this Agreement subject to the terms and conditions set forth herein.