Pedia IQ Services Agreement
PEDIA IQ SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the “Agreement”) is made and entered into this [“Effective Date”], by and between Pedia IQ, LLC, a Georgia limited liability company, (“Pedia IQ”), and [“Company”]. Pedia IQ and Company are referred to herein collectively as the “Parties,” and each as a “Party.”
WHEREAS, Pedia IQ is in the business of analyzing mental health and learning disability screening tests (“Screening Tests”) for children through its duly licensed employees; and
WHEREAS, Company desires to offer its Clients (“Clients”) Screening Tests at its facility; and
WHEREAS, Company desires to retain Pedia IQ under the arrangements set forth in this Agreement to assist Company’s staff in administering Screening Tests for its Clients and analyze the Screening Tests, and Pedia IQ is willing to provide Company with those support services set forth herein to assist Company in determining whether further testing or treatment is warranted for its Clients; and
WHEREAS, Pedia IQ and Company desire to enter into this Agreement in order to more specifically set forth their respective obligations and responsibilities with respect to the provision of services to the Clients;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, do hereby agree as follows:
ARTICLE 1 PEDIA IQ SERVICES
1.1 Professional Services. Company hereby engages Pedia IQ, and Pedia IQ hereby accepts such engagement, to provide the following services:
a) Training. Pedia IQ shall train employees of the Company with regard to the administration of the Screening Tests.
b) Software. Pedia IQ shall provide Company with user names and passwords to access the applications downloaded on the Apple iPads or tablets leased to Company pursuant to Section 2.1(a) of this Agreement. In addition, Pedia IQ shall assist Company in setting up the Company’s site license Company purchases for the use of the T.O.V.A. software pursuant to Section 2.1(b) of this Agreement.
c) Analysis. Pedia IQ shall analyze the results of the Screening Tests provided to Pedia IQ from Company for its Clients and shall provide Company with its analysis of the Screening Tests. Company shall be responsible for providing a diagnosis and/or determining a treatment plan.
ARTICLE 2 DUTIES OF COMPANY
2.1 Operational Requirements.
a) Tablets. Company shall lease from Pedia IQ two (2) Apple iPads or purchase them from Apple (or similar tablets as determined at the discretion of Pedia IQ) with the applicable applications downloaded as further described in Article 3.
b) Software. Company shall purchase a license for the use of T.O.V.A. software and shall ensure Company has the computer requirements and operating system requirements to run the T.O.V.A software. Company shall update the T.O.V.A. software periodically as new updates are available. Pedia IQ shall be responsible for the availability and payment of test credits for T.O.V.A. administrations that are subsequently analyzed by Pedia IQ.
2.2 Company Staff. Company shall be responsible for ensuring that the Company employee administer the Screening Tests in accordance with the training received by Pedia IQ. The Parties acknowledge and agree that the Company employees are, and at all times shall remain, employees of the Company regardless of the fact that they are providing services with Pedia IQ. The Company shall be solely responsible for the satisfaction of any and all obligations as employer of the Company personnel, including, without limitation, payment of wages and salaries, withholding of federal, state and local taxes, employee benefits, wage and hour obligations (including overtime) workers’ compensation, Social Security and unemployment insurance.
2.3 Insurance. Company shall obtain and maintain, during the Term of this Agreement, general liability and professional liability insurance coverage in an amount not less than one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) in the aggregate. Upon Pedia IQ’s request, Company shall provide to Pedia IQ evidence of liability, professional liability, worker’s compensation and other insurance carried by Company in connection with the operation of the Company.
ARTICLE 3 EQUIPMENT LEASE
3.1 Leased Tablets. Company shall rent from Pedia IQ two (2) Apple iPads, or similar tablets as determined in the discretion of Pedia IQ (“Tablets”), with the applicable applications downloaded. The Company has an option to purchase the iPads independently. If the Company purchases the tablets, then the Company will provide Pedia IQ access to the tablets to set up the applicable applications on the purchased tablets.
3.2 Lease Payment. Company shall make a one-time rental payment to Pedia IQ in the amount specified in Exhibit “A” if the Company chooses to lease tablets from Pedia IQ.
3.3 Title to Tablets. If the tablets are leased, the title to the Tablets shall remain with Pedia IQ at all times, and Company shall have no right, title, or interest therein except as expressly set forth in this Agreement. Company agrees, at its expense, that it shall not, by its acts or omissions, permit the Tablets to become subject to any lien, charge or encumbrance of any nature whatsoever.
3.4 Repairs and Maintenance. Company shall, at its expense, use its best efforts to keep and maintain the Tablets in good working order and condition, ordinary wear and tear excepted. Company shall be responsible for repairing the Tablets as a result of any damage done to the Tablets.
3.5 Replacement and New Tablets. In the event of loss, total damage or obsolescence of any of the Tablets during the term of this Agreement, Company shall lease an additional Tablet from Pedia IQ pursuant to the same terms as provided herein. The Company may also exercise the option to purchase a replacement iPad or tablet directly from Apple or another third-party vendor.
3.6 Purchase Option. At the end of the term of this Agreement, Company shall have the option to purchase leased Tablets from Pedia IQ for the sum of $1 each. Such option shall be exercised by Company within thirty (30) days of the end of the term of the Agreement.
ARTICLE 4 FEES
4.1 Compensation. In consideration for the training of the Company employees, lease of iPads or other tablets, analysis of Screening Tests by Pedia IQ under this Agreement, and general administrative fees of Pedia IQ, Company shall pay to Pedia IQ the fees as provided on Exhibit “A” (the “Fees”). Such payment shall be due to Pedia IQ regardless of whether Company receives payment from the Client (or third party payor on behalf of the Client) for the services provided by Pedia IQ.
4.2 Invoices; Payment. Pedia IQ shall submit to Company, on a monthly basis, an invoice detailing the Fees incurred for such month. Such invoice shall be submitted by the tenth (10th) business day of the month following the month in which the sales, rent or fees were incurred. Company shall pay Pedia IQ within thirty (30) days of receipt of the invoice.
4.3 Fair Market Value. The Parties expressly acknowledge that the terms of this Agreement, including terms relating to amounts payable hereunder, were reached in arms-length negotiations between the Parties, were not determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the Parties, and are to the Parties’ best knowledge consistent with fair market value for the services to be provided.
ARTICLE 5 TERM AND TERMINATION
5.1 Term. This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year (the “Initial Term”), unless otherwise terminated in accordance with the provisions of this Agreement. This Agreement shall automatically renew for additional, consecutive one (1) year terms (each, a “Renewal Term,” and collectively referred to with the Initial Term as the “Term”) unless either Party elects to terminate this Agreement at the end of the Initial Term or the then-current Renewal Term by providing written notice to the other Party of such election at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term, as the case may be. Upon such notice of termination, this Agreement shall terminate on the last day of the Initial Term or the then-current Renewal Term, as the case may be.
5.2 Termination with Cause. Either Party may immediately terminate this Agreement at any time if:
a) The other Party fails to comply with the terms of this Agreement and such failure continues uncured for ten (10) days after written notice from the terminating Party specifying such default in reasonable detail;
b) The other Party (i) becomes insolvent or bankrupt; (ii) admits in writing its inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; (iv) applies for or consents to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property; or (v) institutes or becomes subject to any proceeding under the bankruptcy laws of the United States or any other insolvency law or law providing for the relief of debtors; or
c) The other Party dissolves, liquidates or ceases doing business.
5.3 Termination With Cause By Pedia IQ. Pedia IQ may immediately terminate this Agreement at any time if:
(a) Company consolidates with or merges with or into any entity, or sells, leases or otherwise disposes of all or substantially all of its assets;
(b) Company or any of its employees engage in fraudulent or willful misconduct; or
(c) Any transaction or any series of related transactions, which results in a Change of Control of Company. For purposes of this Agreement, “Change of Control” shall mean: (i) a transfer, directly or indirectly (including by merger), of all or substantially all of the assets of the Party (including, but not limited to a transfer in liquidation of such Party); or (ii) the transfer, directly or indirectly, of at least 50% or more of the voting interests in such Party, whether by sale, merger or consolidation, to any single person or two or more affiliates of a person.
5.4 Termination Without Cause. Either Party may terminate this Agreement without cause by providing one hundred twenty (120) days’ written notice to the other Party of its desire to terminate this Agreement. The Parties may terminate this Agreement at any time upon mutual written agreement.
5.5 Records upon Termination. Proprietary information maintained by Company shall become the exclusive property of Company upon termination of this Agreement. All Client records, including medical and billing records, all data, and all financial, business and accounting records relating to Company’s Clients shall remain the property of Company.
5.6 Effect of Termination. As of the date of termination of this Agreement, neither Party shall have any further rights or obligations hereunder except: (a) for rights and obligations accruing prior to such date of termination, including payment to Pedia IQ of all payment or indebtedness accrued to the date of such termination; (b) for rights and obligations arising as a result of any breach of this Agreement; or (c) as otherwise provided herein.
ARTICLE 6 COMPLIANCE WITH LAWS
6.1 Regulatory Compliance. The Parties recognize and acknowledge that this Agreement and the underlying arrangements shall be subject to applicable state and federal laws, regulations and policies, including, but not limited to those laws, regulations, and policies pertaining to Medicare and Medicaid reimbursement, physician referrals and anti-kickback prohibitions, including but not limited to fraud and abuse and the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. § 1320d (“HIPAA”). If at any time either Party determines in good faith, based upon an opinion of legal counsel satisfactory to both Parties, that there is a significant risk that any of the terms or conditions of this Agreement violates such laws, regulations, or policies (as may be amended from time to time), then at such Party’s request, the Parties shall negotiate in good faith to amend this Agreement in order to conform with applicable law. If the Parties are unable to agree on how to amend the Agreement within thirty (30) days of the start of such negotiations, either Party may terminate this Agreement by providing written notice to the other Party of such termination (provided that nothing herein shall be construed to relieve the Partners of liability for any obligations or payments accruing prior to the date of termination).
6.2 No Referral Obligation. The Parties agree that no provision of this Agreement shall be construed to induce or encourage the referral of Clients or the purchase of healthcare services or supplies. The Parties acknowledge that there is no requirement under this Agreement or any other agreement, between Company and Pedia IQ or any third party that Pedia IQ refer any Client, or influence the referral of any Client, to Company for the provision of any healthcare services or supplies. No payment under this Agreement is in return for the referral of Clients to Company in return for purchasing or ordering of healthcare services or supplies from Pedia IQ.
6.3 HIPAA. The Parties acknowledge that Pedia IQ will need to access and use the “protected health information” of Clients of Company, as defined in 42 U.S.C. Section 1320d and 45 C.F.R. Section 164.501 (collectively, the “Protected Health Information”) in order for Pedia IQ to perform its duties under this Agreement. The Parties agree to comply with the HIPAA and any current and future regulations promulgated thereunder including without limitation the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (the “Federal Privacy Regulations”), the federal security regulations contained in 45 C.F.R. Part 142 (the 6 2665211.2 “Federal Security Regulations”), and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162, all collectively referred to herein as “HIPAA Requirements.” Pedia IQ agrees not to use or further disclose any Protected Health Information or Individually Identifiable Health Information (as defined in 42 U.S.C. Section 1320d), other than as permitted by HIPAA Requirements and the terms of this Agreement. The Parties shall make their internal Company’s, books and records relating to the use and disclosure of Protected Health Information available to the Secretary of Health and Human Services to the extent required for determining compliance with the Federal Privacy Regulations.
6.4 Business Associate. The Parties understand that with respect to the services provided hereunder, Pedia IQ is a “business associate” of Company for federal and state privacy rule purposes. Accordingly, the Parties hereto agree to the provisions of the Business Associate Agreement attached as Exhibit “B”, which is incorporated by this reference.
6.5 Confidentiality of Protected Health Information. In compliance with applicable law, each Party shall instruct its employees and personnel concerning the privacy and security of Client identifiable health information. Each Party shall at all times during the term of this Agreement and thereafter maintain (and cause its officers, directors, agents and employees to maintain) the confidentiality of Client medical records, and shall at all times comply with applicable federal, state and local laws and regulations in its handling of medical records hereunder. Each Party shall implement, in accordance with the Federal Security Regulations, administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the electronic Protected Health Information that created, received, maintained or transmitted. If either Party becomes aware of any security incident involving Protected Health Information of Clients of the Center, such Party will report such incident to the other Party. Each Party shall require any agent or subcontractor who receives electronic Protected Health Information to abide by these security restrictions.
6.6 Access to Records. To the extent required by Section 1861 (v)(1)(I) of the Social Security Act, as amended, and its implementing regulations, each Party agrees that until the expiration of four years after the furnishing of services to Company pursuant to this Agreement, each Party shall make available upon written request from the Secretary of the Department of Health and Human Services or upon request from the Comptroller General of the United States, or any of their duly authorized representatives, this Agreement and all books, documents, and records of each physician under the control of the Manager or the Hospital that are necessary to verify the nature and extent of such costs relating thereto.
ARTICLE 7
CONFIDENTIAL AND PROPRIETARY INFORMATION.
7.1 Each Party (the “Receiving Party”) acknowledges that, in performance of its obligations under this Agreement, it may have access to certain Confidential Information (as defined below) of the other Party (the “Disclosing Party”) that is critical to the success of the business operations of the Disclosing Party. Accordingly, during and after the Term of this Agreement, except with the written consent of the Disclosing Party or as otherwise required by applicable law, the Receiving Party shall maintain the confidentiality of the Confidential Information of the Disclosing Party, shall not use or disclose the Confidential Information to anyone or for any purpose, except as necessary to perform its obligations hereunder, and shall not make or keep copies or reproduce in any form the Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean any and all information, data and other material relating to the business, affairs or operation of the Disclosing Party, including without limitation, information which concerns managed care contract rates, Clients, costs or methods of operation or marketing, that is not generally known to the general public. Without limiting other possible remedies for breach of this Article, the Parties agree that injunctive or other equitable relief shall be available to enforce the provisions of this Article, such relief to be without the necessity of posting a bond, cash or otherwise. The provisions of this Article shall survive the expiration or other termination of this Agreement, regardless of the cause of such termination.
ARTICLE 8 INDEMNIFICATION
8.1 Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and such Party’s officers, managers, employees, agents, affiliates successors and assigns (collectively, the “Indemnified Party”) from and against any and all claims, actions, demands, suits, losses, expenses (including attorneys’ fees), judgments and liabilities of any kind (collectively, a “Loss”) arising out of (a) the performance by the Indemnifying Party of its duties and obligations under this Agreement, except to the extent it is determined by a court of competent jurisdiction that a proximate cause of the Loss was the negligence or willful misconduct of the Indemnified Party, (b) a breach of any representation, warranty or obligation of the Indemnifying Party under this Agreement, or (c) the Indemnifying Party’s business activities that are independent of the matters that are the subject of this Agreement.
8.2 Notification of Claim. The Indemnified Party shall notify the Indemnifying Party in writing of the assertion of any claim or the commencement of any suit, action or proceeding by any party in respect of which indemnity may be sought under this Agreement within thirty (30) days of such assertion or commencement. Failure to provide such notice shall result in the waiver by the Indemnified Party of its rights to indemnification with respect to such Loss.
8.3 Defense. The Indemnifying Party shall, by written notice to the Indemnified Party, undertake to conduct any proceedings or negotiations in connection with any claim for indemnification and take all other steps necessary to settle or contest such claim. The Indemnified Party shall have the right, at its own expense, to participate in such defense, but control of the litigation and settlement shall remain with the Indemnifying Party. The Parties shall cooperate with each other in the defense of any such claim, suit, action or proceeding. The indemnification obligations of this Article shall supplement, and not supersede or replace, any protection or rights that may be afforded to either Party under any insurance policies maintained by such Party that provide coverage for an act that may serve as the basis for a claim of indemnification hereunder.
8.4 Survival. The provisions of this Article shall survive the expiration or other termination of this Agreement, regardless of the cause of such termination.
ARTICLE 9 MISCELLANEOUS
9.1 Relationship of the Parties. The relationship of Pedia IQ to Company is that of an independent contractor. This Agreement does not create a partnership, association, joint venture, employer-employee relationship or any other relationship except that of independent contractor. Except as expressly provided herein, neither Party has the right or authority to bind the other. This Agreement is not intended to be for the benefit of third parties.
9.2 Assignment. Neither Party shall not assign, directly or indirectly, any of its rights, duties or obligations under this Agreement without the prior written consent of the other Party.
9.3 Notice. All notices, approvals or other communications required or permitted to be given by either Party to the other Party under this Agreement shall be in writing and shall be deemed to have been given if mailed, postage prepaid, by registered or certified mail, and addressed as follows:
If to Pedia IQ:
PEDIA IQ, LLC
Box 768381
8920 EVES ROAD
ROSWELL GA 30076-0141
Attn: Rebecca Marshall, Ph.D.
Any Party may change its address for receiving notice by written notice given to the others named above. Any such notice shall be effective upon receipt.
9.4 Further Assurances. Each Party shall promptly execute and deliver to the other Party such further documents and take such further action as such Party may reasonably request in order to carry out more effectively the intent and purpose of this Agreement.
9.5 Entire Agreement. This Agreement constitutes the entire agreement of the Parties, and supersedes all previous and contemporaneous oral and written negotiations, commitments, writings and understandings. Nothing in this Agreement is intended or shall be construed to create any rights in any third party beneficiaries.
9.6 Amendment. This Agreement may be amended only by written agreement of both Parties. However, in the event that there is a change in federal or state statutes, case law, regulations or general instructions; an adverse construction or interpretation involving any of the foregoing; or the adoption of new federal or state legislation, any of which are reasonably likely to materially and adversely affect the manner in which either Party may perform or be compensated for its services under this Agreement or which shall make this Agreement unlawful, the Parties shall immediately enter into good faith negotiations regarding a new service arrangement or basis for compensation for the services furnished pursuant to this Agreement that complies with the law, regulation, or policy and that approximates as closely as possible the economic position of the Parties prior to the change. If the Parties are unable to negotiate a new service agreement or basis for compensation for the services within thirty (30) days of the start of such negotiations, either Party may terminate this Agreement by providing written notice to the other Party of such termination.
9.7 Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia (but not including its conflict of laws rules if and to the extent such rules would apply the substantive laws of another jurisdiction). Venue for litigation of any dispute arising under this Agreement or any lawsuit to enforce or interpret this Agreement shall be in an appropriate court located in Fulton County, Georgia.
9.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
9.9 Waiver of Breach. The waiver by either Party of any breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach or violation of the same or any other provision hereof.
9.10 Severability. In the event any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason and in any respect, such invalidity, illegality, or unenforceability shall in no event affect, prejudice, or disturb the validity of the remainder of this Agreement, which shall be in full force and effect, enforceable in accordance with its terms.
9.11 Binding Effect. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
9.12 Survival. Except as otherwise expressly provided in this Agreement, all covenants, agreements, representations and warranties, express or implied, shall survive the execution of this Agreement, and shall remain in effect and binding upon the Parties until they have fulfilled all of their obligations hereunder. Any terms of this Agreement that must survive the expiration or termination of this Agreement in order to have their intended effect, shall survive the expiration or termination of this Agreement whether or not expressly stated in the Agreement.
9.13 Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of such Party including, without limitation, labor disputes, strikes, other labor or industrial disturbances, acts of God, floods, lightening, shortages of materials, utility failures, earthquakes, casualty, war, acts of the public enemy, riots, insurrections, restrictions, regulations or orders of any government, agency or subdivision thereof. For so long as such circumstances prevail, the Party whose performance is delayed or hindered shall continue to use all commercially reasonable efforts to recommence performance without delay. Such delay shall be excused and the period of performance extended as may be necessary to enable the applicable Party to perform after the cause of such delay has been removed.
THIS SERVICES AGREEMENT (the “Agreement”) is made and entered into this [“Effective Date”], by and between Pedia IQ, LLC, a Georgia limited liability company, (“Pedia IQ”), and [“Company”]. Pedia IQ and Company are referred to herein collectively as the “Parties,” and each as a “Party.”
WHEREAS, Pedia IQ is in the business of analyzing mental health and learning disability screening tests (“Screening Tests”) for children through its duly licensed employees; and
WHEREAS, Company desires to offer its Clients (“Clients”) Screening Tests at its facility; and
WHEREAS, Company desires to retain Pedia IQ under the arrangements set forth in this Agreement to assist Company’s staff in administering Screening Tests for its Clients and analyze the Screening Tests, and Pedia IQ is willing to provide Company with those support services set forth herein to assist Company in determining whether further testing or treatment is warranted for its Clients; and
WHEREAS, Pedia IQ and Company desire to enter into this Agreement in order to more specifically set forth their respective obligations and responsibilities with respect to the provision of services to the Clients;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, do hereby agree as follows:
ARTICLE 1 PEDIA IQ SERVICES
1.1 Professional Services. Company hereby engages Pedia IQ, and Pedia IQ hereby accepts such engagement, to provide the following services:
a) Training. Pedia IQ shall train employees of the Company with regard to the administration of the Screening Tests.
b) Software. Pedia IQ shall provide Company with user names and passwords to access the applications downloaded on the Apple iPads or tablets leased to Company pursuant to Section 2.1(a) of this Agreement. In addition, Pedia IQ shall assist Company in setting up the Company’s site license Company purchases for the use of the T.O.V.A. software pursuant to Section 2.1(b) of this Agreement.
c) Analysis. Pedia IQ shall analyze the results of the Screening Tests provided to Pedia IQ from Company for its Clients and shall provide Company with its analysis of the Screening Tests. Company shall be responsible for providing a diagnosis and/or determining a treatment plan.
ARTICLE 2 DUTIES OF COMPANY
2.1 Operational Requirements.
a) Tablets. Company shall lease from Pedia IQ two (2) Apple iPads or purchase them from Apple (or similar tablets as determined at the discretion of Pedia IQ) with the applicable applications downloaded as further described in Article 3.
b) Software. Company shall purchase a license for the use of T.O.V.A. software and shall ensure Company has the computer requirements and operating system requirements to run the T.O.V.A software. Company shall update the T.O.V.A. software periodically as new updates are available. Pedia IQ shall be responsible for the availability and payment of test credits for T.O.V.A. administrations that are subsequently analyzed by Pedia IQ.
2.2 Company Staff. Company shall be responsible for ensuring that the Company employee administer the Screening Tests in accordance with the training received by Pedia IQ. The Parties acknowledge and agree that the Company employees are, and at all times shall remain, employees of the Company regardless of the fact that they are providing services with Pedia IQ. The Company shall be solely responsible for the satisfaction of any and all obligations as employer of the Company personnel, including, without limitation, payment of wages and salaries, withholding of federal, state and local taxes, employee benefits, wage and hour obligations (including overtime) workers’ compensation, Social Security and unemployment insurance.
2.3 Insurance. Company shall obtain and maintain, during the Term of this Agreement, general liability and professional liability insurance coverage in an amount not less than one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) in the aggregate. Upon Pedia IQ’s request, Company shall provide to Pedia IQ evidence of liability, professional liability, worker’s compensation and other insurance carried by Company in connection with the operation of the Company.
ARTICLE 3 EQUIPMENT LEASE
3.1 Leased Tablets. Company shall rent from Pedia IQ two (2) Apple iPads, or similar tablets as determined in the discretion of Pedia IQ (“Tablets”), with the applicable applications downloaded. The Company has an option to purchase the iPads independently. If the Company purchases the tablets, then the Company will provide Pedia IQ access to the tablets to set up the applicable applications on the purchased tablets.
3.2 Lease Payment. Company shall make a one-time rental payment to Pedia IQ in the amount specified in Exhibit “A” if the Company chooses to lease tablets from Pedia IQ.
3.3 Title to Tablets. If the tablets are leased, the title to the Tablets shall remain with Pedia IQ at all times, and Company shall have no right, title, or interest therein except as expressly set forth in this Agreement. Company agrees, at its expense, that it shall not, by its acts or omissions, permit the Tablets to become subject to any lien, charge or encumbrance of any nature whatsoever.
3.4 Repairs and Maintenance. Company shall, at its expense, use its best efforts to keep and maintain the Tablets in good working order and condition, ordinary wear and tear excepted. Company shall be responsible for repairing the Tablets as a result of any damage done to the Tablets.
3.5 Replacement and New Tablets. In the event of loss, total damage or obsolescence of any of the Tablets during the term of this Agreement, Company shall lease an additional Tablet from Pedia IQ pursuant to the same terms as provided herein. The Company may also exercise the option to purchase a replacement iPad or tablet directly from Apple or another third-party vendor.
3.6 Purchase Option. At the end of the term of this Agreement, Company shall have the option to purchase leased Tablets from Pedia IQ for the sum of $1 each. Such option shall be exercised by Company within thirty (30) days of the end of the term of the Agreement.
ARTICLE 4 FEES
4.1 Compensation. In consideration for the training of the Company employees, lease of iPads or other tablets, analysis of Screening Tests by Pedia IQ under this Agreement, and general administrative fees of Pedia IQ, Company shall pay to Pedia IQ the fees as provided on Exhibit “A” (the “Fees”). Such payment shall be due to Pedia IQ regardless of whether Company receives payment from the Client (or third party payor on behalf of the Client) for the services provided by Pedia IQ.
4.2 Invoices; Payment. Pedia IQ shall submit to Company, on a monthly basis, an invoice detailing the Fees incurred for such month. Such invoice shall be submitted by the tenth (10th) business day of the month following the month in which the sales, rent or fees were incurred. Company shall pay Pedia IQ within thirty (30) days of receipt of the invoice.
4.3 Fair Market Value. The Parties expressly acknowledge that the terms of this Agreement, including terms relating to amounts payable hereunder, were reached in arms-length negotiations between the Parties, were not determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the Parties, and are to the Parties’ best knowledge consistent with fair market value for the services to be provided.
ARTICLE 5 TERM AND TERMINATION
5.1 Term. This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year (the “Initial Term”), unless otherwise terminated in accordance with the provisions of this Agreement. This Agreement shall automatically renew for additional, consecutive one (1) year terms (each, a “Renewal Term,” and collectively referred to with the Initial Term as the “Term”) unless either Party elects to terminate this Agreement at the end of the Initial Term or the then-current Renewal Term by providing written notice to the other Party of such election at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term, as the case may be. Upon such notice of termination, this Agreement shall terminate on the last day of the Initial Term or the then-current Renewal Term, as the case may be.
5.2 Termination with Cause. Either Party may immediately terminate this Agreement at any time if:
a) The other Party fails to comply with the terms of this Agreement and such failure continues uncured for ten (10) days after written notice from the terminating Party specifying such default in reasonable detail;
b) The other Party (i) becomes insolvent or bankrupt; (ii) admits in writing its inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; (iv) applies for or consents to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property; or (v) institutes or becomes subject to any proceeding under the bankruptcy laws of the United States or any other insolvency law or law providing for the relief of debtors; or
c) The other Party dissolves, liquidates or ceases doing business.
5.3 Termination With Cause By Pedia IQ. Pedia IQ may immediately terminate this Agreement at any time if:
(a) Company consolidates with or merges with or into any entity, or sells, leases or otherwise disposes of all or substantially all of its assets;
(b) Company or any of its employees engage in fraudulent or willful misconduct; or
(c) Any transaction or any series of related transactions, which results in a Change of Control of Company. For purposes of this Agreement, “Change of Control” shall mean: (i) a transfer, directly or indirectly (including by merger), of all or substantially all of the assets of the Party (including, but not limited to a transfer in liquidation of such Party); or (ii) the transfer, directly or indirectly, of at least 50% or more of the voting interests in such Party, whether by sale, merger or consolidation, to any single person or two or more affiliates of a person.
5.4 Termination Without Cause. Either Party may terminate this Agreement without cause by providing one hundred twenty (120) days’ written notice to the other Party of its desire to terminate this Agreement. The Parties may terminate this Agreement at any time upon mutual written agreement.
5.5 Records upon Termination. Proprietary information maintained by Company shall become the exclusive property of Company upon termination of this Agreement. All Client records, including medical and billing records, all data, and all financial, business and accounting records relating to Company’s Clients shall remain the property of Company.
5.6 Effect of Termination. As of the date of termination of this Agreement, neither Party shall have any further rights or obligations hereunder except: (a) for rights and obligations accruing prior to such date of termination, including payment to Pedia IQ of all payment or indebtedness accrued to the date of such termination; (b) for rights and obligations arising as a result of any breach of this Agreement; or (c) as otherwise provided herein.
ARTICLE 6 COMPLIANCE WITH LAWS
6.1 Regulatory Compliance. The Parties recognize and acknowledge that this Agreement and the underlying arrangements shall be subject to applicable state and federal laws, regulations and policies, including, but not limited to those laws, regulations, and policies pertaining to Medicare and Medicaid reimbursement, physician referrals and anti-kickback prohibitions, including but not limited to fraud and abuse and the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. § 1320d (“HIPAA”). If at any time either Party determines in good faith, based upon an opinion of legal counsel satisfactory to both Parties, that there is a significant risk that any of the terms or conditions of this Agreement violates such laws, regulations, or policies (as may be amended from time to time), then at such Party’s request, the Parties shall negotiate in good faith to amend this Agreement in order to conform with applicable law. If the Parties are unable to agree on how to amend the Agreement within thirty (30) days of the start of such negotiations, either Party may terminate this Agreement by providing written notice to the other Party of such termination (provided that nothing herein shall be construed to relieve the Partners of liability for any obligations or payments accruing prior to the date of termination).
6.2 No Referral Obligation. The Parties agree that no provision of this Agreement shall be construed to induce or encourage the referral of Clients or the purchase of healthcare services or supplies. The Parties acknowledge that there is no requirement under this Agreement or any other agreement, between Company and Pedia IQ or any third party that Pedia IQ refer any Client, or influence the referral of any Client, to Company for the provision of any healthcare services or supplies. No payment under this Agreement is in return for the referral of Clients to Company in return for purchasing or ordering of healthcare services or supplies from Pedia IQ.
6.3 HIPAA. The Parties acknowledge that Pedia IQ will need to access and use the “protected health information” of Clients of Company, as defined in 42 U.S.C. Section 1320d and 45 C.F.R. Section 164.501 (collectively, the “Protected Health Information”) in order for Pedia IQ to perform its duties under this Agreement. The Parties agree to comply with the HIPAA and any current and future regulations promulgated thereunder including without limitation the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (the “Federal Privacy Regulations”), the federal security regulations contained in 45 C.F.R. Part 142 (the 6 2665211.2 “Federal Security Regulations”), and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162, all collectively referred to herein as “HIPAA Requirements.” Pedia IQ agrees not to use or further disclose any Protected Health Information or Individually Identifiable Health Information (as defined in 42 U.S.C. Section 1320d), other than as permitted by HIPAA Requirements and the terms of this Agreement. The Parties shall make their internal Company’s, books and records relating to the use and disclosure of Protected Health Information available to the Secretary of Health and Human Services to the extent required for determining compliance with the Federal Privacy Regulations.
6.4 Business Associate. The Parties understand that with respect to the services provided hereunder, Pedia IQ is a “business associate” of Company for federal and state privacy rule purposes. Accordingly, the Parties hereto agree to the provisions of the Business Associate Agreement attached as Exhibit “B”, which is incorporated by this reference.
6.5 Confidentiality of Protected Health Information. In compliance with applicable law, each Party shall instruct its employees and personnel concerning the privacy and security of Client identifiable health information. Each Party shall at all times during the term of this Agreement and thereafter maintain (and cause its officers, directors, agents and employees to maintain) the confidentiality of Client medical records, and shall at all times comply with applicable federal, state and local laws and regulations in its handling of medical records hereunder. Each Party shall implement, in accordance with the Federal Security Regulations, administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the electronic Protected Health Information that created, received, maintained or transmitted. If either Party becomes aware of any security incident involving Protected Health Information of Clients of the Center, such Party will report such incident to the other Party. Each Party shall require any agent or subcontractor who receives electronic Protected Health Information to abide by these security restrictions.
6.6 Access to Records. To the extent required by Section 1861 (v)(1)(I) of the Social Security Act, as amended, and its implementing regulations, each Party agrees that until the expiration of four years after the furnishing of services to Company pursuant to this Agreement, each Party shall make available upon written request from the Secretary of the Department of Health and Human Services or upon request from the Comptroller General of the United States, or any of their duly authorized representatives, this Agreement and all books, documents, and records of each physician under the control of the Manager or the Hospital that are necessary to verify the nature and extent of such costs relating thereto.
ARTICLE 7
CONFIDENTIAL AND PROPRIETARY INFORMATION.
7.1 Each Party (the “Receiving Party”) acknowledges that, in performance of its obligations under this Agreement, it may have access to certain Confidential Information (as defined below) of the other Party (the “Disclosing Party”) that is critical to the success of the business operations of the Disclosing Party. Accordingly, during and after the Term of this Agreement, except with the written consent of the Disclosing Party or as otherwise required by applicable law, the Receiving Party shall maintain the confidentiality of the Confidential Information of the Disclosing Party, shall not use or disclose the Confidential Information to anyone or for any purpose, except as necessary to perform its obligations hereunder, and shall not make or keep copies or reproduce in any form the Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean any and all information, data and other material relating to the business, affairs or operation of the Disclosing Party, including without limitation, information which concerns managed care contract rates, Clients, costs or methods of operation or marketing, that is not generally known to the general public. Without limiting other possible remedies for breach of this Article, the Parties agree that injunctive or other equitable relief shall be available to enforce the provisions of this Article, such relief to be without the necessity of posting a bond, cash or otherwise. The provisions of this Article shall survive the expiration or other termination of this Agreement, regardless of the cause of such termination.
ARTICLE 8 INDEMNIFICATION
8.1 Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and such Party’s officers, managers, employees, agents, affiliates successors and assigns (collectively, the “Indemnified Party”) from and against any and all claims, actions, demands, suits, losses, expenses (including attorneys’ fees), judgments and liabilities of any kind (collectively, a “Loss”) arising out of (a) the performance by the Indemnifying Party of its duties and obligations under this Agreement, except to the extent it is determined by a court of competent jurisdiction that a proximate cause of the Loss was the negligence or willful misconduct of the Indemnified Party, (b) a breach of any representation, warranty or obligation of the Indemnifying Party under this Agreement, or (c) the Indemnifying Party’s business activities that are independent of the matters that are the subject of this Agreement.
8.2 Notification of Claim. The Indemnified Party shall notify the Indemnifying Party in writing of the assertion of any claim or the commencement of any suit, action or proceeding by any party in respect of which indemnity may be sought under this Agreement within thirty (30) days of such assertion or commencement. Failure to provide such notice shall result in the waiver by the Indemnified Party of its rights to indemnification with respect to such Loss.
8.3 Defense. The Indemnifying Party shall, by written notice to the Indemnified Party, undertake to conduct any proceedings or negotiations in connection with any claim for indemnification and take all other steps necessary to settle or contest such claim. The Indemnified Party shall have the right, at its own expense, to participate in such defense, but control of the litigation and settlement shall remain with the Indemnifying Party. The Parties shall cooperate with each other in the defense of any such claim, suit, action or proceeding. The indemnification obligations of this Article shall supplement, and not supersede or replace, any protection or rights that may be afforded to either Party under any insurance policies maintained by such Party that provide coverage for an act that may serve as the basis for a claim of indemnification hereunder.
8.4 Survival. The provisions of this Article shall survive the expiration or other termination of this Agreement, regardless of the cause of such termination.
ARTICLE 9 MISCELLANEOUS
9.1 Relationship of the Parties. The relationship of Pedia IQ to Company is that of an independent contractor. This Agreement does not create a partnership, association, joint venture, employer-employee relationship or any other relationship except that of independent contractor. Except as expressly provided herein, neither Party has the right or authority to bind the other. This Agreement is not intended to be for the benefit of third parties.
9.2 Assignment. Neither Party shall not assign, directly or indirectly, any of its rights, duties or obligations under this Agreement without the prior written consent of the other Party.
9.3 Notice. All notices, approvals or other communications required or permitted to be given by either Party to the other Party under this Agreement shall be in writing and shall be deemed to have been given if mailed, postage prepaid, by registered or certified mail, and addressed as follows:
If to Pedia IQ:
PEDIA IQ, LLC
Box 768381
8920 EVES ROAD
ROSWELL GA 30076-0141
Attn: Rebecca Marshall, Ph.D.
Any Party may change its address for receiving notice by written notice given to the others named above. Any such notice shall be effective upon receipt.
9.4 Further Assurances. Each Party shall promptly execute and deliver to the other Party such further documents and take such further action as such Party may reasonably request in order to carry out more effectively the intent and purpose of this Agreement.
9.5 Entire Agreement. This Agreement constitutes the entire agreement of the Parties, and supersedes all previous and contemporaneous oral and written negotiations, commitments, writings and understandings. Nothing in this Agreement is intended or shall be construed to create any rights in any third party beneficiaries.
9.6 Amendment. This Agreement may be amended only by written agreement of both Parties. However, in the event that there is a change in federal or state statutes, case law, regulations or general instructions; an adverse construction or interpretation involving any of the foregoing; or the adoption of new federal or state legislation, any of which are reasonably likely to materially and adversely affect the manner in which either Party may perform or be compensated for its services under this Agreement or which shall make this Agreement unlawful, the Parties shall immediately enter into good faith negotiations regarding a new service arrangement or basis for compensation for the services furnished pursuant to this Agreement that complies with the law, regulation, or policy and that approximates as closely as possible the economic position of the Parties prior to the change. If the Parties are unable to negotiate a new service agreement or basis for compensation for the services within thirty (30) days of the start of such negotiations, either Party may terminate this Agreement by providing written notice to the other Party of such termination.
9.7 Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia (but not including its conflict of laws rules if and to the extent such rules would apply the substantive laws of another jurisdiction). Venue for litigation of any dispute arising under this Agreement or any lawsuit to enforce or interpret this Agreement shall be in an appropriate court located in Fulton County, Georgia.
9.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
9.9 Waiver of Breach. The waiver by either Party of any breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach or violation of the same or any other provision hereof.
9.10 Severability. In the event any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason and in any respect, such invalidity, illegality, or unenforceability shall in no event affect, prejudice, or disturb the validity of the remainder of this Agreement, which shall be in full force and effect, enforceable in accordance with its terms.
9.11 Binding Effect. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
9.12 Survival. Except as otherwise expressly provided in this Agreement, all covenants, agreements, representations and warranties, express or implied, shall survive the execution of this Agreement, and shall remain in effect and binding upon the Parties until they have fulfilled all of their obligations hereunder. Any terms of this Agreement that must survive the expiration or termination of this Agreement in order to have their intended effect, shall survive the expiration or termination of this Agreement whether or not expressly stated in the Agreement.
9.13 Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of such Party including, without limitation, labor disputes, strikes, other labor or industrial disturbances, acts of God, floods, lightening, shortages of materials, utility failures, earthquakes, casualty, war, acts of the public enemy, riots, insurrections, restrictions, regulations or orders of any government, agency or subdivision thereof. For so long as such circumstances prevail, the Party whose performance is delayed or hindered shall continue to use all commercially reasonable efforts to recommence performance without delay. Such delay shall be excused and the period of performance extended as may be necessary to enable the applicable Party to perform after the cause of such delay has been removed.