This independent contractor agreement (“Agreement”) is made by and between Doctors Connection, (“The Company”) a Texas Limited Liability Company & (The Contractor(s)”) effective on the date of the signature at the end of this agreement.
WHEREAS, Company is engaged in the marketing of products to physician’s clinics, hospitals or similar setting and is in need of individuals/entities, who or which will be able to promote, develop, expand and support the Company’s laboratory services, medical devices, capital equipment, testing devices and medical supplies to health care providers throughout the states where Company is licensed or authorized to do business; and
WHEREAS, Contractor has experience in providing business development and marketing services on behalf of private clinics and health care facilities; and
WHEREAS, Company desires to engage Contractor as a Marketing Representative;
NOW, THEREFORE, in consideration of the foregoing premises, and the terms, covenants and conditions set forth in this Agreement, and for other good and valuable consideration, the parties, desiring to be legally bound, agree as follows:
- Relationship to the parties: The parties agree and intend that the relationship between them created by this agreement is that of an Independent Contractor. The Contractor is not an employee of the company, and thereby is not entitled to the benefits normally provided to employees, including, but not limited to, medical insurance and/or participation in any pension or profit sharing plan. The Contractor will be given the title of Independent Marketing Representative.
- Conduct: The conduct and control of the work to be performed by the contractor under this agreement rest exclusively with the Contractor. The Contractor shall perform his or her services for the company in accordance with ethical standards applicable and customary to the industry and profession and at no time will the Contractor try to mislead customers or conduct him or herself in a way that could potentially be damaging to the company, its reputation, its staff or board of directors. The Contractor shall comply with all company policies, marketing philosophies, standards, guidelines and procedures in all activities in line with this agreement. Any acts to the contrary will result in immediate termination of The Contractor by the company as outlined in sections 17 and 18 of this agreement.
- Engagement: The Company hereby agrees to engage the independent contractor and its representatives and Contractor hereby accepts such engagement as an independent contractor who will develop Company’s business on the terms, covenants and conditions set forth in this Agreement. The performance of Contractor’s duties under this Agreement, Contractor shall comply with any and all applicable local, state and federal laws, statutes, rules and regulations.
- Term: The term of this Agreement shall commence on the date of this contract and shall continue for a one (1) year period (the “Initial Term”) and thereafter shall automatically renew for one (1) year term (“Renewal Terms”), unless (i) either party gives its prior written notice of its intent not to renew no less than thirty (30) days prior to the expiration of the Initial Term or the Renewal Term, as applicable, then in effect; or (ii) it is otherwise terminated in accordance with any other provision of this Agreement. The Initial Term and any Renewal Term shall be referred to herein collectively as the “Term".
- Current Warranties & Continuing Representations & Warranties of Contractor: The Company has entered into this Agreement in reliance on Contractor’s representations and warranties. During the Term of this Agreement, Contractor shall immediately notify Company in the event any of the representations or warranties set forth below become untrue or inaccurate in any manner. Contractor hereby represents and warrants the following to Company:
a) Contractor is not bound by any obligation, restriction or limitation, contractual or otherwise, to any other individual or entity that would prohibit or impede Contractor from undertaking and performing the duties, responsibilities and obligations under this Agreement, and Contractor is free to enter into and perform the terms and provisions hereof.
b) Contractor’s principal is not aware of any personal health problem, physical disability or mental disability which now or in the future would materially impair Contractor’s ability to provide business development services and/or Contractor’s ability to carry out the duties, responsibilities or obligations to be rendered by Contractor under this Agreement.
c) Neither Contractor nor any of its principals is a party to any pending investigations or proceedings, nor have any such investigations or proceedings been threatened, the basis of which implicates Contractor’s professional competence.
d) Neither Contractor nor any of its representatives have ever been convicted of (i) a felony or a crime of moral turpitude (it being understood by the parties that for the purposes of this subparagraph a plea of guilty, non vult, nolo contendere or any other such disposition of an alleged crime of moral turpitude shall be deemed a conviction), or (ii) participation in any dishonest conduct vis-à-vis the assets or income of any prior employer or other entity, whether or not of a criminal nature,
e) Contractor has never been subject to any investigation or proceeding that could lead to any pending investigations or proceedings,
f) Contractor hereby represents that Contractor is aware of the Anti-Fraud and Abuse Amendments to the Social Security Act, the Medicare and Medicaid Program Protection Act, the Federal Anti-kickback safe harbor Regulations, the Federal Stark self-referral law, false claim Act, and applicable state health care laws. Contractor further understands that Contractor cannot knowingly or willfully offer, pay, solicit or receive remuneration in order to induce business, and if Contractor does so, Contractor may be subject to civil and/or criminal penalties. Contractor also agrees that Contractor will abide by all other laws pertaining to the business of Company or rules and regulations that may be issued from time to time by Company. Company has adopted certain compliance policies and procedures with respect to business development and marketing services and Contractor agrees to abide by Company’s business development and policies and procedures throughout the Term.
g) The contractor and contractor’s representatives certify that they are in no way employed or have any financial arrangements with a physician to induce referrals or generate business for personal gain that constitute a violation under the Stark Law and Anti-Kickback statute. Contractor also agrees that are not allowed to employ any staff or immediate family members of the physician or referring facility.
h) No Debarment/Exclusion: The contractor and contractor’s representatives certify to the fact that there is no exclusion under section 42 U.S.C. §1320(a)-7. (Exclusion of certain individuals and entities from participation in Medicare and State health care programs). Exclusion under 42 U.S.C. §1320(a)-7 will result in immediate termination of this contract. A background check will be done on all new marketing reps through the Office of the Inspector General, US Dept of Health & Human Services.
6. Duties: The services to be rendered are generally described below, as and when required and authorized by the company:
- a) Primary responsibilities will require the Contractor to function independently for the purpose of rendering business development and marketing services to Company to secure new clients as outlined in Appendix B through product education in a geographical territory as outlined in the duties in the attached, Appendix A.
- b) Establishing, developing and maintaining a client account once a client decides to use the Company’s services; assisting with the hiring of additional personnel to provide services to clients on behalf of Company, as needed;
- c) Resolving complaints and other issues as they arise between Company and a client, including, but not limited to, complaints involving supply errors, insurance inquiries, and the timing of test results; and
- d) Maintaining and managing the relationship between the Company and the client
- 7. Compensation:
a) Service Fee. In consideration of the duties to be performed by Contractor pursuant to the terms of this Agreement and in addition to the other benefits provided for herein, Company shall pay Contractor a monthly service fee for compensation in the amount set forth on Appendix B attached hereto (“Service Fee”). The Service Fee shall be paid to Contractor, on or before the last day of following month in which the Contractor has performed duties according to the job description and there is activity in accounts. The service fee as outlined in Appendix B is based upon Contractor satisfying certain quality measures related to Contractor’s duties hereunder that Company shall determine, in its sole discretion, and provided that the client accounts managed by Contractor are “Active” (as such term is defined below). All independent contractors will be sent a 30 day notice if there are any changes to the service fee.
- b) In addition to whether Contractor’s client accounts are "active", Company will consider the following quality measures: (i) the development of new business for Company in the Service Area that was assisted by the services provided by Contractor hereunder, (ii) Contractor’s general productivity, (iii) the creation of a positive image for Company through the services provided by Contractor hereunder, and (iv) other factors determined by Company. For the purposes of this Agreement, “Active” shall mean the account is "actively" using services provided by Doctors Connection. The Service Fee under this Agreement IS NOT determined in a manner that a) takes into account the volume or value of any referrals, b) the number of tests or procedures performed, or c) the amount billed to or received from, in part or in whole, the healthcare benefit program from the individual referred to a particular recovery home, clinical treatment facility, or laboratory or business otherwise generated between the parties for which payment may be made in whole or in part under Medicare, Medicaid or other federal healthcare programs. Under safe harbor protection, this written agreement has a one-year minimum term and compensation that is set in advance.
- c) Fair Market Value: It is the intention of the Parties that any Monthly Service Fee paid to the independent contractor by the Company shall at all times be in compliance with all applicable laws, rules, regulations, policies and interpretations and shall not exceed the fair market value for the services provided by the independent contractor hereunder, and is not determined in a manner that over compensates for business generated through public or private healthcare insurance programs, including Medicare or Medicaid. If either Party determines at any time or is reliably informed by governmental authorities that the compensation arrangements or other terms set forth herein violate or are likely to be determined by a governmental authority to violate such laws, rules, regulations, policies or interpretations, the Parties agree to meet immediately and in good faith to amend this Agreement so as to eliminate such concern or violation and to bring this Agreement into compliance with the foregoing. Any such amendment shall, within lawful guidelines, have the same aggregate economic effect upon the Parties. Such determination, information or amendment shall not allow either Party to claim that this Agreement is void or voidable.
- Right to market: In accordance with this Agreement, Doctors Connection grants the Contractor a non-exclusive right to market the products outlined in Appendix B under the terms of this Agreement in the designated territory also outlined in Appendix B.
- Activity by the Company in the territory:
a) The Company hereby reserves the right to perform marketing activities and solicit any of its products or services, including, but not limited to, the Products, within the Territory during the Term of this Agreement; provided, however, the Company agrees during the Term of this Agreement not to permit other product reps under the Company’s control to market to the individuals or organizations on the Contractors protected customers list.
b) Additionally, during the Term of this Agreement, the Company shall have the right to supplement the Contractor’s Protected Customers List by adding additional customers upon written notice to the Contractor.
- During the term of this Agreement and for five 2 years after, the Contractor shall not, sell competing products of Doctors Connection.
- Non-Circumvention. During the term of this Agreement and for five 2 years after, the Contractor shall not, directly or indirectly, except in collaboration with or with the prior express written consent of Doctors Connection, (a) contact, initiate contact, or attempt to do business with, at any time for any purpose, either directly or indirectly, any officers, directors, shareholders, employees, business associates, clients, suppliers, customers, financial sources, manufacturers, consultants, and any third party vendors introduced by Doctors Connection. This provision shall expire at the end of two (2) years from the termination of this Agreement. The Contractor further agrees to direct any inquiries resulting from these introductions directly to Doctors Connection for resolution.
- Expenses: As this is an independent contractor relationship, The Contractor will be responsible for mileage, auto expenses and any other related expenses.
- Taxes: The Company shall not deduct state or federal income tax from payments made to the Contractor. The Contractor agrees to make all necessary contributions and to pay any & all taxes in accordance with applicable law and will hold the Company harmless from any liability arising from failure by the Contractor to pay such taxes.
- Product: The Contractor understands; the Company makes no warranty with respect to the Product. The only warranty applicable to the Product is the warranty provided by the manufacturer with respect to the Product, as stated in any warranty accompanying the Product.
- Non-Disclosure & Proprietary Information: The Contractor acknowledges that Contractor’s relationship with Company will be one of trust and confidence and that there will be available to Contractor certain confidential information, trade secrets and business sources of Company. The Contractor shall maintain all confidential company information and marketing materials and not use this information for any other purposes. The Contractor agrees that all originals and copies of all computer and print media of internal memoranda, reports, procedures, internal manuals, invoices, spread sheets, marketing documentation, secret or confidential techniques, methods, processes, equipment, books, notes, drawings, tapes, prints, memoranda formulae, price lists, compensation structure, and other related internal business matters and documents pertaining to the affairs of Company or its clients; be returned to The Company upon separation and not used or reproduced electronically or in any other way.
- Non-discrimination: No discrimination shall be made of persons under this agreement because of race, color, national origin, age, ancestry, religion, sexual or gender orientation or sex of such person.
- Termination of contract: In the event Company exercises its right to terminate Contractor then the Company may, in its sole discretion, require Contractor to cease providing services on behalf of Company at any time prior to the expiration of the thirty (30) day period following notice of termination. Notwithstanding the foregoing, in the event that the Company exercises its rights pursuant to this paragraph, the “Service fee” shall continue for a period of 30 days after such termination, for those client accounts that were introduced by and continue to be managed by the Contractor.
This agreement may be terminated upon the occurrence of the following events:
(a) the mutual written agreement of Company and Contractor to terminate this Agreement;
(b) the resignation of Contractor, provided that Contractor provides at least 30 days prior written notice;
(c) the election of Company, without cause, to terminate Contractor’s engagement, provided that Company provides at least thirty (30) days prior written notice;
(d) the death of Contractor or all of the members of Company; or
(e) any event or violation which constitutes “just cause” for termination pursuant to Paragraph 17, below, in which case Company may terminate this Agreement immediately.
The Company has the right to change or terminate this contract and any or all services rendered by the Contractor at any time, without notice. The Company may terminate this Agreement immediately for any event which constitutes “just cause” below:
a) Dishonesty or Misrepresentation of the Company
b) Enticement of an existing or potential referral source at any time
c) Unprofessional conduct that has a negative effect on the Company’s reputation
d) Market, advertise, promote, or solicit the sale of or refer potential customers to any Person with respect to products that are in competition with the Products we carry
e) Contractor’s failure, in Company’s sole discretion, to perform duties outlined in Appendix A
f) Exclusion under section 42 U.S.C. §1320(a)-7 or any violation of Section 18 of this agreement
g) Contractor’s failure to materially abide by rules & regulations & compliance policy of the Company
h) Contractor’s conviction of a felony or a crime of moral turpitude
j) Make any representation to any Person which conflicts with the Company’s pricing of Products, including information regarding the Company’s rebate programs.
k) Falsifying any documents such as orders ,other documents, doctors signature, etc.
l) Attempt to violate any of the following: Federal Anti-Kickback Statute, Physician Self-Referral Law, False Claims Act, Medicare Fraud & Abuse, Stark Law, HIPAA Compliance & the Safe Harbor Act.
18. Compliance: The Contractor agrees to take part in company provided product training and confirm understanding of following topics as it pertains to medical practices at a federal level:
a) Federal Anti-Kickback Statute
b) False Claims Act (FCA)
c) Medicare Fraud & Abuse
d) Stark Law
e) HIPAA Compliance
f) Safe Harbor Act: Law and Ethics in Clinical Practice
No Debarment/Exclusion: The contractor and contractor’s representatives certify to the fact that there is no exclusion under section 42 U.S.C. §1320(a)-7. (Exclusion of certain individuals and entities from participation in Medicare and State health care programs). Exclusion under 42 U.S.C. §1320(a)-7 will result in immediate termination of this contract. A background check will be done on all new independent contractors through the Office of the Inspector General, US Dept of Health & Human Services.
The Contractor agrees to watch & listen to the following OIG Compliance Training Video's:
Federal Anti-Kickback Statute (4.44 min)
Physician Self-Referral Law (4.19 min)
False Claim Act (4.15 min)
If Contractor receives notice of an actual or threatened inspection, investigation, inquiry, import or export ban, Product seizure, enforcement proceeding, or similar action by a Governmental Authority with respect to any Party’s activities in connection with any Product, the Contractor will Notify the Company, within 48 hours after its receipt of such notice, of the action and will deliver to the Company, within a further 24 hours, copies of all relevant documents received from the Governmental Authority.
19. Entire Agreement: This agreement constitutes the entire agreement between the parties and correctly sets forth the rights, duties, and obligations of all the parties as of the effective date of this contract.
20. Waiver: The failure of either party to insist upon strict adherence to any term, covenant or condition of this Agreement on any occasion shall not be considered a waiver or relinquishment of any right of such party or parties to insist upon strict performance of that term, covenant, or condition, or any other term, covenant or condition, of this Agreement at any time thereafter.
21. Indemnity: Contractor agrees to indemnify, defend and hold harmless Company from and against any actions on the part of Contractor in entering into this Agreement which may be a breach of any other agreement to which Contractor is or was a party.
22. Choice of Law: Jurisdiction & Venue: This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Contractor and Company consent to the filing of an action in, and hereby personally submit to the jurisdiction of, the state or federal courts located in the State of Texas and further agree that such courts shall be exclusive courts of jurisdiction and venue for any litigation which Contractor may file. Contractor and Company hereby consent to service of process in any such action by notice given in accordance with the terms of this Agreement.
23. Attorneys’ Fees. In the event that any Action is instituted or commenced by either Party against the other Party arising out of, related to, or resulting from this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys’ fees and arbitration or court costs from the non-prevailing Party.
APPENDIX A-Contractor Responsibilities
Primary Responsibilities: The contractor will provide marketing services, management and support for its representatives and accounts and function as the first point of contact for the products outlined in Appendix B in a geographical territory. This may include providing educational presentations on products, marketing to new and existing customers, in-servicing office staff on proper testing protocol and assistance on interpreting reports and ongoing account maintenance. Contractor will work with Doctors Connection to keep an updated spreadsheet of its representatives & clients in the territory. Contractor must register any existing and/or new marketing reps with Doctors Connection and reps must sign and return an NDA prior to releasing any company information and failure to do so may result in suspension or non-payment of the service fee.
The Contractor and its Representatives will attend product training sessions and compliance training as required by the Company relating to its obligations under this Agreement and its marketing, advertising, promoting, and soliciting of Products in the Territory. The details of such training will be provided by the Company to the Contractor.
In consideration for the services to be performed by Contractor, Company agrees to pay Contractor the fees set forth on APPENDIX B.
Notwithstanding any terms to the contrary in this Agreement, Company agrees to pay Contractor the fees set forth on APPENDIX B that accrue prior to the termination date and become payable during the 30 day period following the effective date of termination of this Agreement; provided, however, that Company will have no further obligation to pay Contractor any fees under this Agreement after payment to Contractor of any such amounts for services performed after the termination date.
As this is a contract position, you will be responsible for paying mileage, auto expenses & any other related expenses. A monthly statement be provided for all business activity.
APPENDIX B –Service Fee & Service Area
For marketing services provided under this agreement, the Company will pay the contractor a monthly base to market laboratory services beginning the month after the first date of activity in the territory according to job title and description. The Company shall also pay performance-based bonuses on key metrics such as product presentations to new accounts, ongoing clinical education for staff, timely submission of paperwork, the ability to handle customer inquiries and complaints to provide appropriate solutions and alternatives within appropriate time limits, maintaining sufficient inventory levels and maintaining an established account for a 12 month period.
The Company will pay the Contractor, on or before the last day of each calendar month during the Term, for the service fees owed for the preceding calendar month.
In the rare occasion of changes or discontinuation of products available or an agreement with a partnered vendor or manufacturer, compensation structures are subject to change. You will be given a 30-day notification if there is a change in the payment structure.
The Contractor must register a new account via email with a new client form, initial order or demo request (depending on product line) to deem the account “protected”. A Contractor Account that does not produce business for a 60 day period shall no longer be considered a Contractor’s Account and may be reassigned at the company’s sole discretion.
IN WITNESS WHEREOF, the parties hereby agree to the terms, covenants and conditions of this Agreement as of the date reflected on the electronic signature stamp.