This Master Consulting Agreement (this “Agreement”) is between FocusPlanIT, LLC, an Indiana limited liability company whose business address is 4126 S Derby Dr., Bloomington, IN 47401 (“FPI”, “us”, “we”, or “our”) , and you the entity whose name, contact information and authorized signatory appear in the signature block, below (“Client”, “you” or “your”).
1. Services. We agree to provide Client with professional consulting services and advice (collectively, the “Services”) in the time, place, and manner described in one or more written engagement letters (each, an “Engagement Letter”), each of which must be in writing and signed by us and you in order to be effective. Once effective, each Engagement Letter will become a part of and governed under the terms of this Agreement. If there is a material difference between the terms of an Engagement Letter and this Agreement, the terms of the Engagement Letter will control.
a. Performance. If an Engagement Letter does not specify a particular time, place, or manner in which the Services are to be provided, then you and we will cooperate and mutually determine the appropriate time, place, and manner for the delivery of the Services. Unless otherwise stated in an Engagement Letter, we will provide our own employees, contractors and subcontractors (collectively, “FPI Personnel”) as we deem reasonable and necessary to provide the Services. Should the performance of any FPI Personnel not meet the standards of performance described in this Agreement or should Client, in its reasonable discretion, determine that the FPI Personnel are disruptive or otherwise jeopardize or adversely impact Client’s operations, then upon the mutual agreement of Client and FPI, FPI will replace the applicable personnel as soon as reasonably practical.
b. Independent Contractor. FPI is and at all times will remain an independent contractor to Client. Nothing in the Agreement creates an agency, joint venture, partnership, or fiduciary relationship between the parties. Neither FPI, nor any FPI Personnel, is entitled to any Client employee benefits, including but not limited to life insurance, disability insurance, death benefits, accident or health insurance, qualified pension or retirement plans.
c. Authorized Contact. Client must designate one or more authorized contact person(s) (each, an “Authorized Contact”) with whom FPI will conduct Service-related communications, and who is authorized to give Service-related directions to FPI. Client understands and agrees that FPI will be permitted to act upon the direction and apparent authority of each Authorized Contact, unless and until FPI receives written notice from Client that an Authorized Contact is no longer authorized to act on Client’s behalf. Changes to an Authorized Contact’s information or authority must be made in writing to FPI.
d. No Minimum; Non-Exclusive. FPI shall not be required to accept or perform any particular project or service requested by Client until and unless the terms of the project or services are accepted, in writing, by the parties in an Engagement Letter. You understand and agree that the Services are not exclusive to you, and we may provide the same or similar services to our other customers, provided that we will comply with the confidentiality provisions of this Agreement at all times.
a. Fees. You agree to pay the fees described in each Engagement Letter (“Fees”) in accordance with the schedule(s) and timing described therein. If an Engagement Letter is silent with regard to the timing of payment, then all Fees will be due and payable prior to the commencement of the Services.
b. Expenses. All reasonable and necessary out-of-pocket expenses and costs incurred by FPI in the provision of the Services will be invoiced to you (“Costs”). FPI reserves the right to collect cost deposits in anticipation of incurring Costs in its provision of the Services. Unless otherwise specifically stated in an Engagement Letter, Costs listed in an Engagement Letter are only a good faith estimate and may vary by up to ten percent (10%) from the actual costs incurred by us and payable by you.
c. Nonpayment. Late payments for undisputed fees will be subject to interest on the unpaid invoice amount(s) until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. Client will be liable for all reasonable attorneys’ fees as well as costs and fees we incur in collection of past due balances, including but not limited to collection fees, attorneys’ fees, filing fees, and court costs. In the event that we do not timely receive payment of undisputed fees, then in addition to all other rights and remedies available to us, we reserve the right to suspend the Services, in part or in whole, until such time that we receive all overdue payments.
a. Defined. Confidential Information means any and all non-public information provided to us by you, including but not limited to your customer data, customer lists, internal documents, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission by us, (ii) was developed independently by us, or (iii) is or was lawfully and independently provided to us prior to disclosure by you, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
b. Use. We will keep your Confidential Information confidential, and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by you in writing, or (ii) as needed to fulfill our obligations under this Agreement. If we are required to disclose the Confidential Information to any third party as described in part (ii) of the preceding sentence, then we will ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated in this Agreement.
c. Due Care. We will exercise the same degree of care with respect to the Confidential Information we receive from you as we normally take to safeguard and preserve our own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
d. Compelled Disclosure. If we are legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, we will immediately notify you in writing of such requirement so that you may seek a protective order or other appropriate remedy and/or waive our compliance with the provisions of this Section. We will use its best efforts, at your expense, to obtain or assist you in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, we may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that we have been advised, by written opinion from our counsel, that we are legally compelled to disclose.
e. Special Handling of PHI. FPI represents and warrants that it will comply with all requirements of HIPAA, and all applicable laws of any U.S. state or territory relating to the privacy, security, and administration of protected health information (“PHI”). If necessary to comport with relevant federal or state law, each party hereby agrees to enter into, and thereafter comply with, any business associate or other confidentiality agreements reciting such obligations, as may be required to permit access to the Confidential Information and/or PHI.
f. Return of Confidential Information. At any time, you may request the return of all Confidential Information provided to us under this Agreement. Upon receipt of such a request, we will promptly return to you all Confidential Information in our custody or control, retaining no copies thereof. In our reasonable discretion, in lieu of returning electronically-stored Confidential Information, we may fulfill our obligations hereunder by permanently destroying all applicable electronic files, and providing a sworn certification to you, in writing, that all such electronic files have been permanently and irretrievably erased. Any destruction of Confidential Information shall be in accordance with the best practices in the healthcare industry.
4. Client Obligations. You agree (i) to provide us with accurate information, (ii) cooperate and participate in the consulting process as requested by us, and (iii) timely implement our suggestions, recommendations and related advice. You further understand and agree that our suggestions, recommendations and advice (collectively, “FPI’s Advice”) will be based upon the apparent authenticity, accuracy, and thoroughness of the information you provide to us. If any Client-provided information is inaccurate, incomplete or outdated, FPI’s Advice may be inaccurate or incomplete. FPI shall be held harmless from, and shall be indemnified by Client against, any and all claims, causes of action, reasonable fees, reasonable expenses and reasonable costs actually incurred by FPI as a direct result of Client’s provision of any inaccurate, incomplete, or outdated information to FPI.
5. Ownership. You own (i) all Confidential Information you provide to us under this Agreement, and (ii) all Client information, data, files and works of authorship created or produced by you at any time (“Client’s IP”). During the term of the Agreement, you hereby grant to us the nonexclusive, non-sublicensable, royalty-free, limited, worldwide right to use the Client’s IP for the sole purpose of fulfilling FPI’s duties and obligations under the Agreement. FPI is and shall remain the owner of all templates, schedules, methodologies, handbooks, outlines, plans, checklists, practices and works of authorship that are created or produced by FPI under this Agreement (“FPI’s IP”). We hereby grant to you the nonexclusive, perpetual, royalty-free, worldwide right to use FPI’s IP solely for your internal business purposes. Each party agrees that it shall not use the other party’s intellectual property for any reason other than as expressly authorized under this Agreement.
6. Term; Termination.
a. Term. This Agreement begins on the latest date of the signatures of the parties below, and will continue until terminated as described in this Agreement. Each Engagement Letter will have its own term and will be terminated only as provided herein, unless otherwise expressly stated in the applicable Engagement Letter. The termination of one Engagement Letter shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other Engagement Letter between the parties..
b. Termination. Unless otherwise noted in an applicable Engagement Letter, each Engagement Letter may be terminated only (i) as specifically provided in the applicable Engagement Letter, or (ii) at any time by mutual written consent of both Client and FPI, or (iii) immediately by one party if the other party (a “Defaulting Party”) commits a material default under the Engagement Letter, and such default is not cured or such party makes substantial efforts to cure (as reasonably determined by the non-Defaulting Party) within ten (10) days following the Defaulting Party’s receipt of written notice of default from the non-Defaulting Party. An Engagement Letter will not be terminated without cause unless (i) Client agrees in writing to pay all remaining amounts due to FPI under the applicable Engagement Letter, and thereafter pays such amounts within ten (10) days following the date of termination, or (b) for projects in which the Services are pre-paid in full, Client agrees in writing to forfeit all pre-paid undisputed amounts to FPI. If your needs change during the term of the Agreement then we may agree, in our reasonable discretion, to transfer any unearned fees under an Engagement Letter to other services offered by FPI, without charge or deduction for such transfer.
c. Transition. In the event this Agreement is terminated for any reason whatsoever, all Client-owned data (including Confidential Information and Client’s IP) in FPI’s custody or control shall be returned to Client in a commercially reasonable manner (or deleted as described in above) and in a commercially reasonable time frame not to exceed fifteen (15) calendar days following the date of request of the return of such information by Client. FPI shall have no obligation to store or maintain any Client data or Confidential Information in FPI’s possession or control beyond fifteen (15) calendar days following the termination of this Agreement. FPI shall be held harmless for and shall be indemnified by Client against any and all claims, reasonable costs, reasonable fees, or reasonable expenses actually incurred by FPI that arise from, or are related to, FPI’s deletion of data or information beyond the time frames described in this Section. Client is strongly advised to change all passwords and access codes previously provided to Consultant upon the termination of this Agreement.
7. WARRANTIES; LIMITATIONS OF LIABILITY.
a. Limitations. This paragraph limits the liabilities arising under this Agreement or any Engagement Letter and is a bargained-for and material part of this Agreement. You acknowledge and agree that we would not enter into this Agreement unless we could rely on the limitations described in this paragraph. In no event shall either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to FPI), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any Engagement Letter, or the Services, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any Engagement Letter, even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below) shall not be limited by the foregoing limitation. Except for your payment obligations and your indemnification obligations described in this Agreement, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you to us for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued. In no event will FPI’s aggregate liability for all Claims exceed $500,000. The foregoing limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, or gross negligence.
b. Advice. FPI’s advice and directions (the “Advice”) will be based upon the relevant laws, industry standards and practices, relevant industry information and news, and general best practices (“Relevant Information”) in effect as of the date on which such the Advice is rendered. You understand and agree that changes to the Relevant Information may render portions of the Advice incomplete, outdated, or obsolete. The Advice will be based upon and reflect FPI’s good faith interpretation and understanding of the Relevant Information, and is provided to Client with the understanding that the Relevant Information may be subject to differing reasonable interpretations. FPI does not claim, warrant, or guarantee that its advice will be error-free, appropriate under all circumstances or contingencies, or that changes to the Relevant Information will not render the Advice unusable in part or in whole.
8. Indemnification. Subject to the limitations in this Agreement, each party (an “Indemnifying Party”) hereby agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all loss, damage, reasonable cost, reasonable expense or liability, including reasonable attorneys’ fees (collectively, “Damages”) actually incurred, that arise from, or are related to the Indemnifying Party’s breach of its representations and warranties contained in the Agreement, alleged or actual negligent acts or omissions, willful misconduct, and all other damages to property or person to the extent caused by the Indemnifying Party or its agents. The Indemnified Party agrees to give the Indemnifying Party prompt notice of any claim for which indemnity is due or will be sought. Failure to provide such notice shall not diminish the Indemnifying Party’s indemnity obligations hereunder unless and only to the extent that the Indemnifying Party is materially adversely affected by the Indemnified Party’s failure to or its delayed notice. The Indemnifying Party, at its sole cost, shall control the reasonable intake, defense, disposition and settlement of any matter for which indemnification is supplied hereunder; provided, however, that the Indemnifying Party shall not agree to any settlement of an indemnified matter that requires the Indemnified Party to admit any wrongdoing or liability, unless the Indemnified Party agrees to such settlement in writing. If the Indemnified Party controls or takes control of any claim for which indemnity is due under this Section, then the Indemnifying Party’s obligation to provide indemnification shall immediately expire as to such matter.
9. Arbitration. Any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, will be determined by arbitration before one arbitrator to be mutually agreed upon by the parties. The arbitration shall be administered and conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth below, the procedures set forth below will control. The arbitrator will be experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, JAMS shall select the arbitrator. The arbitrator shall determine the scope of discovery in the matter, however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. The cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.
a. Assignment. Neither this Agreement nor any Engagement Letter may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, we may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business, or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that such assignee expressly assumes our obligations hereunder.
b. Amendment. No amendment or modification of this Agreement or any Engagement Letter will be valid or binding upon the parties unless such amendment or modification is originated in writing by FPI, specifically refers to this Agreement, and is accepted in writing by one of your Authorized Contacts.
c. Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of this Agreement or any Engagement Letter (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
d. Severability. If any provision hereof or any Engagement Letter is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any Engagement Letter will be valid and enforceable to the fullest extent permitted by applicable law.
e. No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
f. Merger. This Agreement, together with any and all Engagement Letters, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. Any document that is not expressly and specifically incorporated into this Agreement or Engagement Letter will act only to provide illustrations or descriptions of Services to be provided and will not modify this Agreement or provide binding contractual language between the parties. We will not be bound by any of our agents’ or employees’ representations, promises or inducements if they are not explicitly set forth in this Agreement.
g. Force Majeure. Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any Engagement Letter because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
h. Non-Solicitation. You acknowledge and agree that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, you will not, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of FPI’s employees or subcontractors to discontinue or reduce the scope of their business relationship with FPI, or recruit, solicit or otherwise influence any employee or agent of FPI to discontinue such employment or agency relationship with FPI. In the event that you violate the terms of the restrictive covenants in this Section, you acknowledge and agree that the damages to FPI would be difficult or impracticable to determine, and you agree that in such event you will pay FPI as liquidated damages and not as a penalty an amount equal to fifty percent (50%) percent of that employee or subcontractor’s first year of base salary with you (including any signing bonus). In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to any of our employees by you will be deemed to be a material breach of this Agreement, in which event we shall have the right, but not the obligation, to terminate this Agreement or any then-current Engagement Letter immediately For Cause.
i. Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.
j. Governing Law; Venue. This Agreement and any Engagement Letter will be governed by, and construed according to, the laws of the state of Indiana. You hereby irrevocably consent to the exclusive jurisdiction and venue of the state courts in Monroe County, Indiana, for any and all claims and causes of action arising from or related to this Agreement.
k. No Third Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
l. Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.
m. Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by U.S. mail, overnight courier, or email. Notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx or other overnight courier, or one (1) day after notice is delivered by email. Notice sent by email will be sufficient only if (i) the sender emails the notice to the last known email address of the recipient, and (ii) the sender includes itself in the “cc” portion of the email and preserves the email until such time that it is acknowledged by the recipient. Notwithstanding the foregoing, any notice from you to FPI regarding (a) any alleged breach of this Agreement by FPI, or (b) any request for indemnification, or (c) any notice of termination of this Agreement or any Engagement Letter, must be delivered to FPI either by U.S. mail or fax, unless such requirement is expressly and specifically waived by FPI. All electronic documents and communications between the parties will satisfy any “writing” requirement under this Agreement.
n. Counterparts. The parties intend to sign and deliver this Agreement and any Engagement Letter in any number of counterparts, and each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign and deliver this Agreement (or any Engagement Letter) electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature), and the receiving party will be entitled to rely upon the apparent integrity and authenticity of the other party’s signature for all purposes.