A. The COMPANY has subcontracted with a team of various professionals to produce and develop our program, which is proprietary information in the form of mobile ultrasound imaging service contracts, sales and marketing materials, forms, and practice information, including but not limited to web sites, brochures, templates, patient forms, process guidelines, to be used for the growth and development of a Mobile Ultrasound Business, offering mobile diagnostic ultrasound imaging for the medical industry. Such documents and information shall be referred to as “Resources”.
B. The CONTRACTOR desires COMPANY to provide it with mobile ultrasound business consulting services, as are more fully defined in paragraph 2 below, exclusively for the purpose of developing, marketing, managing and operating a mobile ultrasound business, offering mobile diagnostic ultrasound services.
C. The COMPANY desires to provide CONTRACTOR with Mobile Ultrasound Affiliate Program Consulting Services and authorize the CONTRACTOR to use such Resources exclusively for the purpose of developing, marketing, managing and operating a mobile ultrasound business, offering mobile diagnostic ultrasound services.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, COMPANY and CONTRACTOR do hereby mutually agree as follows:
1. Term of this Agreement. The term of this Agreement (the “Term”) shall commence as of the Effective Date and remain in effect for various periods of time as individually outlined in paragraph 2.
2. Consulting Services Provided by the COMPANY. During the business lifetime of the COMPANY or the CONTRACTOR, the COMPANY shall provide to the CONTRACTOR the following Mobile Ultrasound Affiliate Program Consulting Services (collectively, the “Consulting Services”):
a. Customizable Market Analysis
b. Customizable Business Plan
c.Information on service pricing suggestions
d. Staffing Business Model overview
e. Business Incorporation overview and instructions
f. Insurance coverage requirements
g. Staffing Service Agreement
h. Business Associate Agreement
a. In consideration of the Consulting Services provided by the COMPANY, the CONTRACTOR shall pay to the COMPANY a total of ONE THOUSAND, TWO HUNDRED NINETY SEVEN DOLLARS ($1,297) for the consulting services and all related items as described in paragraph 2.
Any additional cost options may be purchased individually upon initiation of this agreement or at any time during the term of this agreement. No refunds will be issued for any reason following the receipt of the Payment(s).
During the course of business, CONTRACTOR may choose to purchase additional items, products or services from various divisions of the COMPANY (Tax ID# 36-4561414). Failure to comply with due dates for payments or failure to pay may result in the temporary suspension of consulting services and pass code access to the web portal until the account in question is made current.
6. Restrictive Covenants.
Non-compete. During the Term of the Agreement, and following the expiration of this Agreement, the CONTRACTOR shall not at any time in any manner, directly or indirectly, either as principal, agent, independent contractor, proprietor, shareholder, director, officer, consultant, or in any other capacity, provide CONSULTING SERVICES the same as or similar to COMPANY, which services are more fully set forth in paragraph 3 above, within the COMPANY’s geographic service area.
Geographic Market. During the Term of the Agreement, and following the expiration of this Agreement, the CONTRACTOR shall not at any time in any manner, directly or indirectly, either as principal, agent, independent contractor, proprietor, shareholder, director, officer, consultant, or in any other capacity engage in any service agreement, business arrangement or business activities with any hospital, medical
office, physician, diagnostic imaging clinic or any medical services organization for the purposes of providing any form of diagnostic imaging services anywhere in the state of Indiana or any state whose state borders do not directly coincide with the CONTRACTOR’s state of residence at the time this Agreement is initiated. If at a later date CONTRACTOR moves to a new state of residence, the new geographic market would be defined as stated above. CONTRACTOR must notify COMPANY in writing within thirty (30) days of change of address.
Sale or Transfer. The sale or transfer of the CONTRACTOR’s business entity, during the Term of the Agreement, and following the expiration of this Agreement, shall not at any time in any manner include the transfer of any of COMPANY’s consulting services, business coaching, business methods, policies, procedures, documents, Client web portal, or any Resources covered and licensed under this Agreement, which are the sole and exclusive copyrighted property of the COMPANY.
Franchising. During the Term of the Agreement, and following the expiration of this Agreement, the CONTRACTOR shall not at any time in any manner, directly or indirectly, either as principal, agent, independent contractor, proprietor, shareholder, director, officer, consultant, or in any other capacity engage in the development of, or any activities related to, the franchising of a Medical Imaging Business within the COMPANY’s geographic service area that will utilize any of COMPANY’s business methods, policies, procedures, documents, Client web portal or any Resources covered and licensed under this Agreement, which are the sole and exclusive copyrighted property of the COMPANY.
Confidential Information. During the Term of this Agreement and following the expiration of this Agreement, the CONTRACTOR shall not at any time in any manner whatsoever disclose or communicate to any person, firm, association, corporation or other legal entity, any information, oral, electronic or in writing, affecting or relating to the business of COMPANY’s, including without limiting the generality of the foregoing: any of COMPANY’s business methods, policies, procedures or manner of operation; the Resources covered and licensed under this Agreement, which are the sole and exclusive copyrighted property of the COMPANY; names, addresses, phone number or employment-related information of COMPANY’s employees or individuals providing any Consulting Services on behalf of COMPANY; names, addresses, phone numbers or service information of COMPANY’s clients. CONTRACTOR understands that any disclosure of this information will be harmful to COMPANY. The parties expressly agree that COMPANY has a protectable interest in this confidential information and that its confidential information constitutes trade secrets pursuant to Indiana Code § 24-2-3-1 et. seq. protecting the same.
The parties understand and agree, however, that the restrictions contained in the preceding paragraph do not apply to knowledge, skills or information which is common to the trade or profession of the CONTRACTOR, which CONTRACTOR is compelled by process of law to disclose. During the Term and following its expiration, all information received or learned by COMPANY regarding CONTRACTOR’S business and operation shall be kept strictly confidential.
Injunctive Relief. Each of the obligations contained in this paragraph 6, are independent obligations and shall be enforceable by injunction to restrain the continued violation of the obligation.
Business Services. CONTRACTOR understands that COMPANY provides business consulting services. CONTRACTOR is responsible for all aspects of business ownership and management including but not limited to sales and marketing, providing services to CONTRACTOR clients, ongoing business expenses and the like. COMPANY is solely responsible for providing services listed in paragraph 2.
7. Representations and Warranties.
Each party hereby represents and warrants to the other party that:
(a) It is duly organized and validly existing under the laws of its jurisdiction of formation, has the power to own its property and to carry on its business as it is now being conducted and as it is proposed to be conducted, and has the corporate power and authority to make, execute, deliver and perform this Agreement,
(b) This Agreement has been duly authorized and executed by such party, and constitutes a binding obligation of such party, enforceable against it in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy and other laws of general application relating to creditors’ rights or general principles of equity; and
(c) Neither the execution, delivery or performance by such party of this Agreement, nor compliance by it with the terms and provisions hereof, (A) will contravene any Legal Requirements (as defined below), (B) will conflict or be inconsistent with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien, mortgage or other encumbrance upon the property or assets of such party, pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement or any other agreement, contract or instrument to which such party is a party or by which it or any of its property or assets is bound or to which it may be subject, or (C) will violate any provision of the articles of incorporation or analogous constitutional document of such party.
(d) COMPANY warrants that it has the right to provide CONTRACTOR with the Consulting Services as set forth in this Agreement. COMPANY warrants that CONTRACTOR's use and receipt of the Consulting Services and Resources from COMPANY do not infringe any intellectual property or other proprietary right of any third party.
(e) COMPANY shall provide the services in a professional manner and with all reasonable skill and care.
For purposes hereof, the term “Legal Requirements” shall mean all laws, statutes, orders, ordinances, decrees, writs, rules, injunctions, licenses, permits, approvals, agreements, regulations and other requirements of any governmental authority having jurisdiction over the matter in question.
8. Indemnification. Each party shall indemnify, hold harmless and defend the other and its subsidiaries, officers, employees, agents, owners, affiliates, and directors, from and against any and all third party costs, expenses (including reasonable counsel fees), liabilities, losses, damages, suits, actions, fines, penalties, claims, or demands of any kind asserted by or on behalf of any person or governmental authority, arising out of or in any way connected with the indemnifying party:
(a) Any failure by the indemnifying party to perform any of the agreements, terms, covenants or conditions of this Agreement required to be performed by it; or
(b) Any failure by the indemnifying party to comply with any applicable statutes, ordinances, regulations or orders of any governmental authority.
(a) EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED INCLUDING IN COMPANY’S CASE, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. COMPANY SHALL HAVE NO LIABILITY, RESPONSIBILITY OR OBLIGATION WHATSOEVER, REGARDLESS OF THE FORM OF ACTION OR BASIS OF THE CLAIM (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE), WITH RESPECT TO COMPANY’S CONSULTING SERVICES. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID UNDER THIS AGREEMENT BETWEEN THE PARTIES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY AVAILABLE TO A PARTY HERE TO.
10. Ownership of Property.
(a) Data and Technology. All Resources covered and licensed under this Agreement are the sole and exclusive copyrighted property of the COMPANY. Except for the rights expressly granted herein, this Agreement does not transfer from COMPANY to CONTRACTOR any rights or ownership in the Resources.
(b) License Grants. COMPANY hereby grants to CONTRACTOR a nonexclusive, royalty-free license, for an indefinite period of time, to use the Resources solely for purposes of developing, marketing, managing and operating a mobile ultrasound business. The CONTRACTOR may use these Resources for developing, marketing, managing, and operating multiple mobile ultrasound service businesses with no additional fees due to the COMPANY. Nothing in this Agreement shall limit COMPANY’s right to use the Resources for it’s own personal use or to grant a license to use the Resources to any other party.
11. General Provisions.
(a) Waiver. The waiver by a party of any breach of any provision of the Agreement by the other party shall not be construed to be either a waiver of that party’s rights regarding any succeeding breach of any such provision or a waiver of the provision itself.
(b) Assignment and Benefit. No party shall assign this Agreement without the prior written consent of the other party. This Agreement shall inure to the benefit of the successors and permitted assigns of the Parties.
(c) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both together shall be deemed to be one and the same Agreement. Signatures transmitted by facsimile shall be deemed an original.
(d) Amendments. This Agreement may be altered, changed, added to, deleted from or modified only by agreement in writing executed by the Parties.
(e) Choice of Law, Forum and Litigation Expenses. The laws of the State of Indiana shall apply to this Agreement, without regard to its conflicts of laws provisions. All claims under this Agreement shall be litigated in the State of Indiana. Both parties irrevocably agree to submit to the jurisdiction of the State of Indiana. In the event either party violates any provision of this Agreement, the prevailing party in a resulting legal action shall be entitled to damages incurred, appropriate injunctive relief and reasonable litigation expenses and attorneys’ fees.
12. Survival. Each provision of this Agreement, which by its nature pertains to acts or matters after the termination of this Agreement, shall survive the termination of this Agreement.
13. Termination. It is agreed by and between the parties, that this Agreement may be terminated by either party if either party is in breach of, or unable to provide its contractual obligations as set forth herein. The terminating party must provide thirty (30) days prior written notice of its intention to terminate thereby allowing the other Party to provide best possible effort to rectify the failed obligations in question. It is understood that upon termination the program fee payment of $8,997 shall be non-refundable. It is further understood and agreed that upon termination by either party the restrictive covenants as set forth in paragraph 6 of the Agreement shall remain in full force and effect.