COVID-19 PROJECT AGREEMENT
This Covid-19 Project Agreement (“Agreement”) sets forth the terms and conditions under which Private Health Management, Inc. (“Private Health”) shall provide the client which is party to a SOW (defined below) (the “Client” or “Company”) with Services (defined below). Client and Private Health may be individually referred to herein as a “Party” or collectively as the “Parties.”
In consideration of the mutual covenants herein contained, the Parties, intending to be legally bound, agree as follows.
- Nature of the Agreement
Private Health shall provide those Covid-19-related services to Client as set forth in any SOW (the “Services”). To be effective, each Scope of Work document (“SOW”) shall reference this Agreement and be duly executed by an authorized representative of each Party. The SOW may be amended in writing from time to time as Client and Private Health may agree as necessary to change the scope of the work to be performed.
- Fees; Payment Timing
Company shall pay Private Health the fees described in the SOW. The timing of invoices and payment of fees shall be described in the SOW.
- Term, Renewal and Termination; Survival
The term of this Agreement shall begin on the effective date of the SOW and will continue until terminated by either Party in accordance herewith. Each SOW will indicate the term of the Services covered by such SOW. Client may terminate this Agreement or any SOW at any time and for whatever reason by providing Private Health with at least thirty (30) days’ prior written notice. Private Health may terminate this Agreement, following the completion of all SOWs(s) then in existence under this Agreement, for whatever reason, by providing Client with at least thirty (30) days’ prior written notice. If this Agreement or any SOW is terminated prior to the end of the applicable term, Client will be responsible for all fees listed in the terminated SOW(s), even if such Services have not yet been performed. If Services under any SOW extend beyond the applicable term, the terms of the Agreement will automatically extend until such Services are completed. It is expressly understood and agreed that the Parties’ respective obligations under this Agreement that by their nature continue beyond the termination or expiration of this Agreement shall survive such termination or expiration of this Agreement.
- Waiver of Practice of Medicine and Insurance
Private Health does not practice medicine or engage in the business of insurance and this Agreement is not a contract of insurance. To the extent that any act or Service provided by Private Health may be construed or deemed to constitute the practice of medicine or the practice of medicine in a jurisdiction where Private Health or a clinician furnished by Private Health is not licensed and to the extent that any provision of this Agreement may be construed or deemed to constitute the business of insurance, that provision shall be void ab initio and the performance of that act or service shall be deemed waived. In addition, out of an abundance of caution in order to comply with regulations governing the corporate practice of medicine, clinicians furnished by Private Health are independent contractors or employed at least in part by a medical group.
- Private Health’s Use of Third Parties
As Private Health looks to gather and obtain as much information as possible to provide you these COVID-19 Services, Private Health will be relying in part on third party information and third parties, potentially including but not limited to open and proprietary sources, advisors on pandemics and infectious disease outbreaks and control, public health experts, geopolitical risk managers, immunologists, pulmonologists, critical care physicians and emergency physicians with a wide array of expertise on immunity, pulmonology, critical care, emergency medicine and other specialties as necessary (collectively, “Resources”) to perform a portion of the Services; provided that Private Health shall remain responsible for the performance of such Services by such third parties to the same extent as if such Services were performed by Private Health. It is understood and agreed by Client that due to the uncertainty of COVID-19, coupled with the pace and complexity of the information being disseminated by third parties, that Private Health will engage in a good faith efforts to provide Client with the information that it believes will be helpful to enable Client to make informative decisions, but that Private Health cannot certify that all information provided will be accurate and timely. Accordingly, as between Private Health and Client, Client shall be responsible for all decisions made by Client and the consequences of such decisions as it relates to COVID-19.
- Exclusion of Liability and Indemnification
The COVID-19-related Services provided to Company under a SOW represent Private Health’s good faith effort to provide Company with useful information to address a pandemic situation based on the information then-available to Private Health. In pandemic situations such as this, the information is often incomplete or inaccurate and changes rapidly, and as a result, the Services that Private Health are providing shall be provided “as is” and Private Health strongly encourages Company to seek information about COVID-19 from additional sources. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY WAIVES THE RIGHT TO ASSERT ANY CLAIM AGAINST PRIVATE HEALTH OR ANY OF ITS THIRD PARTIES RELATED THE SERVICES PROVIDED UNDER AN SOW. PRIVATE HEALTH (AND ITS THIRD PARTIES) SHALL NOT BE LIABLE TO COMPANY FOR ANY LOSSES AND EXPENSES OF WHATEVER NATURE AND HOWEVER ARISING, INCLDUING, WITHOUT LIMITIATION, ANY DIRECT, INDIRECT, GENERAL, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED UNDER THE AGREEMENT. THIS DISCLAIMER OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER BASIS; PROVIDED, HOWEVER, THIS DISCLAIMER OF LIABILITY SHALL NOT APPLY IN INSTANCES OF FRAUD OR INTENTIONAL MISCONDUCT COMMITTED BY PRIVATE HEALTH. In furtherance of the above waiver, Private Health shall have the right to collect from Company its reasonable costs and attorneys’ fees incurred in enforcing this exclusion of liability. Additionally, Company will indemnify, defend, and hold Private Health harmless from any obligations, costs, claims, judgments, attorneys’ fees, and attachments (collectively, “Losses”) arising from, growing out of, any third party claim related to the Services rendered to Company, except for Losses arising out of Private Health’s fraud or intentional misconduct.
- Force Majeure
Private Health shall be relieved from its obligation to perform Services and any liability hereunder when interrupted by forces beyond its control including, without limitation, COVID-19, natural disasters, acts of god, earthquakes, floods, fire, plague, other natural disasters, terrorism, riots, civil disturbances, war whether or not declared, strikes and the general failure of public infrastructure or communication systems. If Private Health’s Services are substantially suspended for more than five (5) days due to forces beyond its control, Fees due under this Agreement shall be abated until such time as the Services can be resumed.
The Company and Private Health have agreed that all disputes arising out of this Agreement or the Services provided will be determined by submission to arbitration as provided by California law, and not by a lawsuit or by resorting to court process, except as California law provides for judicial review of arbitration proceedings. The Company and Private Health are each giving up their constitutional rights to have disputes decided in a court of law before a jury, and instead are accepting the use of arbitration. The decision regarding the arbitrability of any dispute shall also be subject to binding arbitration. Demands for arbitration must be communicated to the other party in writing. Each party shall select an arbitrator from the JAMS Los Angeles, California panel (party arbitrator) within thirty days of the making of a demand for arbitration and a third arbitrator (neutral arbitrator) shall be selected by the arbitrators appointed by the parties within thirty days of the selection of the party arbitrators. In the event that JAMS shall no longer exist, the arbitrators shall be selected from the Los Angeles, California panel of the successor organization and if no such successor organization exists, each party shall select an arbitrator from the Los Angeles, California panel of an organization specializing in arbitration, with an established set of arbitration rules and procedures, to serve as a party arbitrator. Each party to the arbitration shall pay such party’s pro rata share of the expenses and fees of the neutral arbitrator, together with other expenses of the arbitration incurred or approved by the neutral arbitrator, not including counsel fees, party arbitrator fees or witness fees, or other expenses incurred by a party for such party’s own benefit. The parties agree that the arbitrators have the immunity of a judicial officer from civil liability when acting in the capacity of arbitrator under this Agreement. The parties agree that any arbitration shall take place in Los Angeles, California. Any party may bring before the arbitrators a motion for summary judgment or summary adjudication in accordance with applicable law. Except as specifically provided to the contrary in this Agreement, the comprehensive rules of arbitration of JAMS or any successor organization shall govern the arbitration process, provided that if neither JAMS or any successor organization then exists, the neutral arbitrator shall adopt such additional rules and procedures as he or she deems proper to govern the conduct of the arbitration. With respect to any matter not herein expressly provided for, the arbitrators shall be governed by the laws of the State of California relating to arbitration.
- Intellectual Property Rights
Private Health Intellectual Property Rights. Private Health and certain of its Resources have created, acquired or otherwise have rights in various concepts, ideas, methods, processes, data, documentation, software, copyrights, patents, trade secrets, and other proprietary information (collectively, “Private Health Intellectual Property Rights”). To the extent that Private Health Intellectual Property is used in connection with provision of Services to Client contemplated herein, as between Private Health and Client, such property is and shall remain property of Private Health, except for the limited license expressly granted in this Section 9 below, Client shall acquire no rights or interest in such intellectual property.
License to Private Health Intellectual Property. Private Health grants the Client a worldwide, non-exclusive, royalty-free license for the Term of this Agreement to use the Private Health Intellectual Property solely for its internal use of the Services (i.e., internal HR policies and actions, employee health, workplace safety, risk mitigation). Client shall not create derivative works based on, sell, license, transfer, integrate into its own offerings, or otherwise grant additional rights to the Private Health Intellectual Property.
- Security and Confidentiality
Notwithstanding Section 7, Private Health represents and warrants that it complies and agrees that it shall continue to comply during the Term of this Agreement (and thereafter to the extent Private Health retains any “protected health information” (as defined by HIPAA)) with all applicable the requirements of the Federal Health Insurance Portability and Accountability Act, as amended from time to time, and its implementing regulations (“HIPAA”) including: (a) as necessary, adhering to the privacy and security requirements for “protected health information” (as such term is defined in HIPAA regulations) and medical records under HIPAA and similar state laws, and making the transmission of all electronic information compatible with HIPAA requirements; and (b) providing good management practices regarding all health information and medical records. In addition to protecting any “protected health information” received in connection with the Services, Private Health will keep all information and data obtained, disclosed or collected by or from the Company in strict confidence and will protect such information against access by or disclosure to unauthorized third parties. Private Health will implement reasonable physical, technical and administrative security controls to protect such information and data from unauthorized access and disclosure. Private Health will not disclose any personal health information of any individual to Company without the prior written consent of such individual and the Company.
All information disclosed by the discloser of such information (the “Disclosing Party”) to the recipient of such information (the “Receiving Party”) or which the Receiving Party may learn or become aware of pursuant to Services is collectively referred to below as “Confidential Information.” The Receiving Party agrees not to use or disclose any Confidential Information of the Disclosing Party for any purpose other than provision or receipt of the Services, as applicable, without Disclosing Party’s prior written consent. The Receiving Party will safeguard the Confidential Information of the Disclosing Party. The Receiving Party will permit its employees and agents to have access to Confidential Information only on a need-to-know basis, and only if they are subject to substantially equivalent non-disclosure and non-use obligations as those embodied in this Agreement. Without limiting obligations described above with respect to “protected health information,” the obligations of confidentiality and non-use in this Agreement shall not apply to the following types of information: (a) any information that the Receiving Party can prove by documentary evidence is generally available through no act or omission of the Receiving Party or its agents; (b) any information that the Receiving Party can prove by documentary evidence was already in its possession prior to the disclosure of Confidential Information; and (c) any information that the Receiving Party obtains lawfully from any third party who did not obtain that information directly or indirectly from the Disclosing Party. The Disclosing Party may request the Receiving Party to destroy or return all or any Confidential Information of the Disclosing Party at any time. In that event, the Receiving Party shall, subject to the requirements of applicable law, immediately cease all use of Confidential Information and either destroy or return to the Disclosing Party all documents containing or incorporating any Confidential Information of the Disclosing Party within five (5) days.
All notices, requests, demands and other communications required to be given hereunder shall be in writing and shall be deemed given when actually received and may be given by personal delivery, overnight delivery service, or certified or registered mail, return receipt requested, to the Party for whom intended at the address first noted in the SOW, or such other location as may be provided by giving written notice thereof in accordance with the provisions of this Section.
- Assignment; Relationship of Parties
Private Health may not assign the Agreement without first obtaining the written consent of the Company. Any purported assignment of the Agreement done in violation of this Section will be void.
- Our Understanding, Choice of Law and Counterparts
The SOW(s) to this Agreement executed by the Parties are incorporated into and deemed part of this Agreement. If there is an inconsistency between the terms in the body of this Agreement and any other agreed upon contractual document attached to (including SOW(s)), incorporated into, or executed in connection with this Agreement, the terms of the SOW(s) shall prevail. The Company and Private Health agree that this Agreement and SOW(s) represents our complete understanding and shall be interpreted under the laws of the State of California without regard to the choice of law provisions thereof. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and shall not be affected by the invalidity of any other provision. The SOW(s) may be executed in one or more counterparts, each of which shall be deemed an original binding on the signatory.