GENERAL
A. TERM/TERMINATION.
The term of this Agreement shall be as provided under Paragraph 1 (“Term and Renewal”) on Page 1 of this Agreement and shall continue thereafter as provided in said paragraph unless or until terminated as described herein. Either party may terminate this Service Agreement “for cause” by giving the other party a sixty (60) day prior written notice by U.S. certified mail, return receipt requested. Such notification shall state the cause for termination and give the other party a period of 30 days in which to satisfactorily cure the cause. In the absence of such cure, termination will occur within the timetable set forth in the notification. Either party shall have the right to terminate this Agreement at the end of the initial term or any successive term upon 60 days prior written notice (by certified mail).
B. PRICING AND PAYMENT.
Customer agrees to pay fees to Service Provider as set forth under the section entitled “Services” on Page 1 of this Agreement (the “Fees”). Service Provider shall provide Customer with monthly invoices that are due net 30 days. Service Provider reserves the right to impose a late charge equal to the lesser of 1.5% per month or the maximum rate permitted by law on overdue invoices. Customer shall bear any costs that Service Provider may incur in collecting overdue amounts from Customer, including, but not limited to, reasonable attorneys’ fees and costs. Should any amounts due pursuant to this Agreement remain unpaid for more than 30 days from the date of Service Provider's first invoice, Service Provider shall have the option, without notice to Customer, to suspend service under this Agreement until the overdue amounts (plus late charges and collection fees) are paid.
C. STATUS OF PARTIES.
Service Provider’s relationship with Customer is that of an independent contractor, and nothing in this Agreement shall be construed to designate Service Provider as an employee, agent or partner of Customer or as being engaged in a joint venture with Customer.
D. INDEMNIFICATION.
(a) Service Provider shall indemnify and hold Customer harmless from any liabilities, claims, actions or costs arising from the willful misconduct of Service Provider in the performance of its obligations as long as Customer notifies Service Provider in writing within 30 days after Service Provider becomes aware of the existence of any claim requiring indemnification and gives Service Provider authority to defend or settle in its discretion and Customer does not in any way compromise the claim for which indemnification is sought.
(b) Customer shall indemnify and hold harmless Service Provider and its officers, directors, and employees from any liabilities, claims, actions or costs arising from negligence or willful misconduct of Customer (including but not limited to the Customer’s failure to properly segregate, package, label or otherwise prepare any waste material for shipment, the tender of any Non-Conforming Waste Material or the breach of this Agreement) as long as Service Provider notifies Customer in writing within 30 days after Customer becomes aware of the existence of any claim requiring indemnification. The foregoing indemnity obligations include attorneys' fees and costs.
E. NOTICE.
All notices which may be or are required to be given under this Agreement shall be in writing and shall be deemed to have been duly given when delivered in person, transmitted by telecopy, or mailed by certified first class mail, postage prepaid, return receipt requested, to the parties at the fax number or address set out on the first page of this Agreement.
F. ASSIGNMENT, BINDING EFFECT.
Customer may not assign or transfer this Agreement or any rights hereunder without prior approval of Service Provider and any attempt to do so is null and void. Service Provider may assign any or all of its rights or duties under this agreement at any time upon written notice to Customer. This Agreement will inure to the benefit of and be binding on the successors and permitted assigns of Customer and Service Provider
G. SEVERABILITY.
Any provision of this Agreement that in any way contravenes the law of any state or country in which this Agreement is effective will, in that state or country, to the extent the law is contravened, be considered separable and inapplicable and will not affect any other provision or provisions of this Agreement unless an essential purpose of, or rights contained in this Agreement would be defeated by the loss of the illegal, unenforceable, or invalid provision. In such event, at Service Provider’s option, this Agreement may be terminated.
H. AMENDMENT AND WAIVER.
No waiver by either party of any term or condition of this Agreement shall be effective unless in writing signed by the waiving party. No amendment or modification shall be valid unless signed by both parties.
I. GOVERNING LAW AND ARBITRATION.
This Agreement and any dispute arising hereunder will be governed and determined by the law of the jurisdiction in which the services are provided, or if the services are provided solely via the internet, by the laws of the State of Texas, without regard to any Conflicts of Law provisions of such jurisdiction. Any dispute that arises under or relates to this Agreement will be resolved in arbitration in such jurisdiction, before an arbitrator mutually acceptable to the parties and in accordance with the rules and procedures of such arbitrator. To the extent provided by law, the parties expressly waive any right they may otherwise have to cause any action or proceeding to be brought elsewhere. The party prevailing in arbitration shall be entitled to reimbursement for costs and reasonable attorney's fees.
J. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which when taken together shall constitute one and the same instrument. A copy or facsimile of this Agreement shall be as effective as an original.
K. ENTIRE AGREEMENT.
This Agreement and all other agreements, exhibits, and schedules referred to in this Agreement constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter hereof and supersede all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly set forth in this Agreement.
2. ADDITIONAL TERMS AND CONDITIONS FOR COMPLIANCE SERVICES.
A. NOT LEGAL ADVICE.
Customer understands and acknowledges that Service Provider's compliance programs are based on the currently available laws and regulations. Service Provider's compliance programs provide a series of guidelines from a business and technical perspective rather than a legal interpretation of such laws and regulations. Nothing in Service Provider's compliance programs or materials should be construed as legal advice, and Customer is advised to seek the advice of counsel of its own choice or other professionals regarding legal questions or concerns.
B. COMPLIANCE AND CONSULTING MATERIALS.
To the extent that Service Provider provides Customer with any electronic or printed materials (“Materials”) these Materials are subject to a limited license for Customer to use the Materials for Customer’s own, non-commercial use. Service Provider may revoke this license at its discretion at any time. Customer may not copy, distribute, sell, assign or transfer the Materials (whether provided in electronic or printed form) in any manner. Customer agrees to return all printed Materials to Service Provider at Customer’s expense at the expiration or termination of this Agreement. Service Provider may charge Customer a fee for failure to return printed Materials at the expiration or termination of this Agreement or a restocking fee for return of printed Materials prior to the expiration or termination of this Agreement. Failure to return required materials within 15 days may result in Service Provider imposing a penalty in the amount of $250 per manual.
C. OSHURANCE GUARANTEE.
Service Provider will pay fines levied against Customer for certain OSHA violations, provided that Customer follows the training, guidance and instructions contained in Service Provider’s guidelines, procedures, and programs. In order for Customer to further qualify for this guarantee, Customer shall be required to give Service Provider advance notice of any OSHA inspections that it may be subjected to. Such notice shall be given in sufficient time to allow Service Provider or its approved subcontractor to participate in the audit and exit interview. Service Provider will pay fines only for citations and penalties levied by OSHA stemming from an inspection by an OSHA enforcement official after the date of this signed agreement. Customer agrees to allow Service Provider the option to respond to any citation and deal directly with Federal or State OSHA officials to reduce or abate the fine. Customer agrees to allow Service Provider to appeal fines and appear in court (in the name of the Customer) if necessary and permissible. If the foregoing conditions are fulfilled, and yet a monetary fine is issued, Service Provider will pay the fine directly to Customer within 15 days of the levy date unless Service Provider opts to dispute same through applicable legal procedures.
D. CREDIT CARD PAYMENT.
If Customer has elected to pay the Fees by credit card, Customer hereby agrees that Customer’s credit card may be charged automatically by Service Provider on a monthly basis.
E. ADJUSTMENTS.
Service Provider may change the Fees at any time without prior notice to Customer in the event that the manner of delivery of all or any component or segment of the Services is changed by Service Provider or Service Provider adds components or segments not offered or included in the Services on the Effective Service Date. Service Provider also reserves the right to adjust the Fees to account for changes in Service Provider’s costs resulting from compliance with documented changes in law and other cost increases beyond Service Provider’s reasonable control.
3. ADDITIONAL TERMS AND CONDITIONS FOR REGULATED MEDICAL WASTE SERVICE
A. DEFINITION.
Regulated Medical Waste, as used in this Agreement, means isolation waste, cultures and stocks of infectious agents and associated biological human blood and blood products, pathological waste, trace chemotherapy waste, contaminated sharps, waste from surgery and autopsy, miscellaneous laboratory waste, dialysis or disposable linen substitutes and any other waste defined as “regulated medical waste” “infectious waste”, “medical waste”, “bio-hazardous waste” or any similar terminology under applicable laws or regulations. Regulated Medical Waste shall NOT include: hazardous or toxic fluids, research or productive mycotoxins, heavy metals (lead or mercury), bulk chemicals or reagents, volatiles, explosives, pressurized containers, fetal and anatomical remains, bulk chemotherapy waste, radioactive waste, and all hazardous waste as defined in any applicable federal, state or local laws or regulations or any other items or materials not specifically included within the definition of infectious wastes set forth previously. Regulated Medical Waste may be referred to herein as “RMW”.
B. COLLECTION/TREATMENT.
Service Provider will pick up all of the Customer’s RMW in a manner consistent with the applicable federal, state and local laws and regulations and according to a schedule agreed upon by the parties in accordance with the Customer’s disposal needs as set forth above. This schedule may, from time to time, be changed by mutual consent to reflect changes in operating conditions of either party. All RMW picked up from customer will either be processed on site using Service Provider’s proprietary Med Shred™ technology or transported to a licensed and/or permitted treatment facility where it will be treated either by steam sterilization (autoclaving) or incineration in accordance with all applicable federal, state or municipal regulations. Treated RMW will then be disposed of in a permitted sanitary landfill.
C. WASTE PROTOCOL.
Service Provider will provide containers for the transport of RMW. Customer will compensate Service Provide for such containers as set forth on in the Service Terms. The Customer will ensure that all RMW deposited in the containers conforms to the definition set forth above and all local, state and federal regulations and is packaged, segregated, and labeled in appropriate containers (pathological waste packaged in labeled boxes, chemotherapy waste in labeled containers, etc.) in conformity with applicable local, state and federal regulations. Service Provider may at its sole discretion refuse to collect containers that are improperly packaged, labeled, wet or leaking, or damaged in any way. To ensure compliance with packaging requirements and the safety of Service Provider’s employees, Service Provider reserves the right to charge a minimum overweight penalty of $0.65 per lb when weights exceed 40 lbs per container.
D. ADJUSTMENTS.
Because disposal, fuel, and transportation costs constitute a significant portion of the cost of the RMW service provided hereunder, Customer agrees that Service Provider may increase the rate provided under the Service Terms proportionally to adjust for any increase in such costs. Customer agrees that Service Provider may also increase such rates from time to time to adjust for increases in the Consumer Price Index, and proportionally pass through to Customer any increases in taxes, fees or other governmental charges assessed against or passed through to Service Provider (other than income or real property taxes).
E. SERVICE CHANGES/CHARGES.
Changes to the type, size and frequency of service with corresponding adjustments to the rates set forth in the Service Terms, may be made by the mutual agreement of both parties, evidenced either in writing or by the practices and the actions of the parties, without affecting the validity of this agreement and this agreement shall be deemed amended accordingly. Customer will be charged the Extra Container Charge for each container collected per service call in excess of the number of containers per service call as indicated, and the Extra Pick Up Fee for each service call in excess of the number of scheduled service calls. Customer will be charged an additional fee of $65 per container for any pathological, chemotherapeutic or pharmaceutical (including outdated pharmaceuticals) waste generated by Customer.
F. DOCUMENTATION.
Service Provider will provide the Customer the documentation required by local, state and federal agencies and maintain the associated records for a period of three (3) years or longer as required by the local, state and federal law. When permissible by respective state regulations, Service Provider reserves the right to provide documentation electronically and may charge a fee to return the original manifest.
G. INSURANCE.
Service Provider agrees to maintain general liability insurance, automobile liability, and workman’s compensation insurance covering any loss or damage that may arise out of the negligent action or omission of Service Provider or its personnel in providing services pursuant to this agreement in an amount no less than five million dollars ($5,000,000) per occurrence. Service Provider will provide the Customer, upon request, a certificate of insurance evidencing such coverage, which, in addition, will provide the Customer at least thirty (30) days advance notice of any change in coverage.
4. ADDITIONAL TERMS AND CONDITIONS FOR PRACTICE MANAGEMENT ONLINE CONSULTING SERVICE
A. NOT LEGAL ADVICE/WAIVER OF CLAIMS.
Customer understands and acknowledges that Service Provider's practice management and online consulting programs, and the forms, documents, materials, information, advice and recommendations included therein, are based on the currently available laws and regulations and the guidelines and best practices identified and cataloged by Service Provider. Service Provider's practice management and online consulting programs provide a series of guidelines from a business and technical perspective rather than a legal interpretation of such laws and regulations. Nothing in Service Provider's practice management and online consulting programs or the forms, documents, materials information and recommendations included therein should be construed as legal advice or as a guarantee of either compliance with employment or other applicable laws or regulations or a successful defense in any litigation brought against Customer by its current or former employees, vendors, patients or similar parties. Customer is advised to seek the advice of counsel of its own choice or other professionals regarding legal questions or concerns. Customer hereby waives any claims it may have against Service Provider arising out of the content of the practice management and online consulting programs or advice and recommendations given in connection therewith, except to the extent such claims are the direct and sole result of the gross negligence or willful misconduct of Service Provider.
B. SCOPE OF SERVICES/SERVICE LIMITS.
Subscription to the practice management and online consulting service includes unlimited downloads of documents, forms, materials and other tools from the website, access to all webinar presentations and video presentations (webinar and video presentations are not downloadable), unlimited email access to Service Provider’s consultants and 1-800-HOTline phone support. 1-800-HOTline phone calls are limited to 15 minutes per call and Customers are limited to 2 calls per week and no more than 360 minutes total call time per year. Email requests and 1-800-HOTline calls will be responded to within 24-48 hours unless prevented by unforeseen conditions such as interruptions in internet, email or telephone service provider services or other conditions beyond Service Provider’s control. Email and 1-800 HOTline services are intended to answer specific practice management questions and should not be construed as general in application or ongoing remote management of Customer’s practice. The practice management and online consulting service does not include personal visits by Service Provider’s personnel or consultants to Customer’s office or practice location or by Customer to Service Provider’s office or that of its consultants.
C. USE OF MATERIALS.
The forms, documents, materials and information that Service Provider provides Customer, whether in electronic or printed (downloaded) or other written form (“Materials”), and Customer’s right to download or otherwise use such Materials, are subject to a limited license for Customer to use the Materials only for its own, non-commercial use. Customer may not copy, distribute, sell, assign or transfer the Materials (whether provided in electronic or printed form) in any manner or allow Customer’s employees to use such materials for any purpose other than in connection with Customer’s practice. Service Provider may revoke this license at its discretion at any time.
D. CREDIT CARD PAYMENT.
If Customer has elected to pay the Fees by credit card, Customer hereby agrees that Customer’s credit card may be charged automatically by Service Provider on a monthly basis.
E. ADJUSTMENTS.
Service Provider may change the Fees at any time without prior notice to Customer in the event that the manner of delivery of all or any component or segment of the practice management and online consulting service is changed by Service Provider or Service Provider adds components or segments not offered or included in the practice management and online consulting service on the Effective Service Date. Service Provider also reserves the right to adjust the Fees to account for changes in Service Provider’s costs resulting from compliance with documented changes in law and other cost increases beyond Service Provider’s reasonable control.
Customer acknowledges it has read this agreement carefully, including any attachments and additional terms, has had adequate opportunity to review the terms and conditions with counsel or a representative of its choice and understands and accepts the terms of this agreement. Customer understands that accepting the terms of this Agreement constitutes acceptance of Service Provider’s products and services and obligates Customer to a contractual term. Customer further understands that the Agreement may not hereafter be amended or modified without the express consent of Service Provider. Customer will receive a written or electronic copy of this Agreement. Customer agrees to be bound by the terms and conditions that appear on all proceeding pages, which are integral parts of this Agreement
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