Referral Partner Contract - Attorneys
This REFERRAL PARTNER SERVICES AGREEMENT (this “Agreement”) is made and entered into by and between Accident Records, LLC, a Florida Limited Liability Company (“Referrer”), and (“Referral Partner”) on
WHEREAS, Referrer is engaged in the business of providing referral and marketing Services and desires to refer potential clients to the Referral Partner, in exchange for a service fee. The term “Services” as used herein means creative services and services related to the design, development and implementation of internet-based referral marketing, including SEO and SEM advertisement purchase and placement through Google Adwords, direct mail via internet, and related services.
WHEREAS, the purpose of this Agreement is to define the terms and conditions under which Referrer will provide referral and marketing Services to Referral Partner with respect to the Referrer site and affiliated sites under the Referrer trademark.
NOW, THEREFORE, for and in consideration of the mutual promises set forth hereinafter and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
(1) Referral Partner shall provide Referrer with all information required in each Statement of Work within the time frames set forth in the Statements. In connection with the Services, Referral Partner hereby authorizes and grants Referrer a limited license to use Referral Partner’s trade and service names and marks, and will cause Referral Partner’s principal, if any, to grant the same limited license to use Referral Partner’s principal’s trade and service names and marks in providing the Services described herein.
(2) The Services will be provided on a 24 hours a day, 7 days a week basis for a term of no less than one year. Should this Agreement terminate for any reason prior to the oneyear anniversary of commencement of the Agreement, the parties agree that they may not enter into another contract for the Services with each other until the expiration of the one-year anniversary of the commencement of this Agreement.
(3) Referral Partner shall pay Referrer in accordance with the terms of this Agreement and the pricing information stated in the Pricing Schedule attached. The Pricing Schedule may be changed, at Referrer’s option, every six (6) month period. All proposed changes to the Pricing Schedule will need to be approved by Referral Partner. In the instance where a Pricing Schedule change is proposed by Referrer and not accepted by Referral Partner, this Agreement shall terminate, and Referrer shall have the option to provide its Services to another customer. See Paragraph 7 below. During the term of this Agreement, Referral Partner authorizes Referrer to charge Referral Partner’s Paypal Account on a recurring monthly basis for amounts due in connection with the Services as rendered. Additional costs including, but not limited to, the following extra charges: AdWords will be charged as Referrer sees fit; additional monthly costs for subscription fees; and/or other additional fees.
(4) Referrer reserves the right to suspend all services and terminate this Agreement in the event of non-payment of any amounts set forth above or, at its election, advance the cost of the AdWords budget on behalf of Referral Partner, who shall repay such advancement. All overdue amounts under this Agreement shall bear interest at the rate of 1.5% per month or the maximum rate allowed by law, whichever is less. Subscription fees for the Services is based on a flat fair market value associated with geographical locations and population and is not based on a volume of referrals or otherwise representative of any measure of the quantity or quality of patient referrals from the Services.
(5) During the term of this Agreement, the Referrer will make introductions of the Referral Partner to potential clients for purposes of promoting Referral Partner’s business and services to such potential clients (hereinafter “Potential Client”). The Referrer will use its professional judgment as to the appropriateness of a particular introduction.
(6) The Referral Partner will meet or conference, and negotiate independently with a Potential Client after an Introduction with respect to a potential relationship and the terms applicable to such potential relationship. The Referrer may not object to any decisions made by the Referral Partner regarding the terms or conditions of a particular relationship entered into after an Introduction. Further, the Referral Partner will have sole discretion to enter into or not enter into an arrangement with a Potential Client. As such, Referrer shall not be liable to Referral Partner for any claims that may arise with aPotential Client based upon Referrer’s Services herein.
(7) The term of this Agreement will commence on the Effective Date and will continue for no less than six (6) months minimum. This Agreement may be terminated by i) Referral Partner Opting-Out (as defined below); ii) after at least six (6) months, Referral Partner providing thirty (30) day written notice to Referrer of its desire to terminate this Agreement; or iii) by mutual agreement between the parties, if Referral Partner does not agree to Referrer’s proposed change to the Pricing Schedule.
a. Opting Out: If after three (3) months after the Effective Date, Referrer has not referred to Referral Partner at least 7 leads per 1 million people in the region purchased by Referral Partner (see Example below), Referral Partner shall have the option to Opt-Out of this Agreement by providing written notice to Referrer.ExampleIf a region has 3.5 million people, Referrer shall refer at least 21 leads to Referral Partner within the first three (3) months of the Effective Date.
(8) Any party may terminate this Agreement with fourteen (14) days’ written notice for material breach of the Agreement by the other party; or: a. If any party ceases to do business, or otherwise terminates its businessoperations; b. Effective immediately and without notice, if Referral Party loses its right or license to continue operating, practicing, and/or conducting business;c. Effective immediately and without notice if any party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against any other party and not dismissed within fourteen (14) days;ord. Effectively immediately upon notice to Referral Partner in the event of termination or suspension of an AdWords account for any reason other than gross negligence or willful misconduct by Referrer.
(9) Referrer may terminate this Agreement at any time with no advance notice should it have reasonable cause to believe that Referral Partner has failed to satisfy any of the representations and warranties of this Agreement.
(10) Reserved.
(11) Upon termination of this Agreement, each party will deliver to all other parties Confidential Information of the other parties, and an authorized officer of each party will certify in writing that it has done so. In addition, Referrer will deliver to Referral Partner any remaining work product not as yet delivered, and Referral Partner shall pay, in accordance with the terms hereof, any outstanding fees and costs submitted by Referrer.
(12) In the event of the termination or expiration of this Agreement, (a) any accrued payment obligations, (b) any right of action for breach of this Agreement prior to termination, and (c) all the rights and obligations pursuant to the applicable section relating to: Definitions; Payment; Representations and Warranties; Indemnification; Confidentiality; Term and Termination; and General, will remain in effect.
(13) Each Referrer and Referral Partner represents and warrants that: a. it has the right to enter into this Agreement and the right to grant the rights and licenses granted herein;b. it is not a party to any agreement, contract, or understanding that would prevent, limit or hinder its performance of this Agreement;c. during the term, it will not enter into any contract, agreement or understanding which is in conflict or which would interfere with the full and complete performance of any of the duties or grants hereunder; andd. it is not a party to any pending claims or litigation which might affect its performance of this Agreement.
(14) Except as specifically set forth in this Agreement, to the maximum extent permitted by law, each party disclaims all warranties and representations, whether express, implied, or statutory, with respect to the marketing Services provided to the other party and other obligations undertaken hereunder, including without limitation, the implied warranties of merchantability, fitness for a particular purpose (even if Referrer has been informed of such purpose), or warranties arising from a course of dealing, usage or trade practice. Further, the Referrer does not make any warranty regarding the quality of the services purchased or obtained by Referrer will meet Referral Partner’s expectations. Moreover, Referrer does not make any warranty or representation, as to the number of referrals, Referrer will make onto Referral Partner, or the number of Potential Clients Referrer will introduce to Referral Partner.
(15) Each party represents and warrants that it is duly organized, validly existing and in good standing in its state of incorporation, and has full power and authority to enter into this Agreement and to contract for the Services in accordance with the terms of this Agreement.
(16) Referral Party acknowledges that Referral’s Services are provided through the internet, and that from time-to-time, Referral may have technical issues, such as, but not limited to i) technical issues with its website, including, but not limited to i) the web pages of: www.accidentrecords.us and attorneys.accidentrecords.us ii) and other technical issues that could interrupt Referral’s Services. As Referral Party acknowledges that these technical issues from time-to-time, may prevent it from providing its Services for short periods.
(17) Referral Partner acknowledges that it is Referrer’s business policy to conduct email and on-line campaigns in a manner so as not to: (a) send unsolicited email to recipients unless authorized by federal law; (b) misuse or misappropriate other party’s trademarks; and (c) send obscene messages to recipients or use email to conduct illegal activities as pursuant to current law. Referral Partner agrees that it will take no actions inconsistent with this policy and that it will make its principal(s) aware of such policy.
Referral Partner further agrees that it will cooperate with Referrer in its efforts to respect each Potential Client’s privacy wishes and requests by Potential Clients to be unsubscribed from receiving further correspondence. If Referral Partner continues to correspond with a Potential Client after the Potential Client has asked to not be contacted further, Referrer shall not be liable for any Losses (as defined below) that may arise due to Referral Partner’s actions.
(18) Referral Partner acknowledges that Referrer may retain third-party service providers or subcontractors to perform portions of the Services. Referrer shall execute, and shall require its service providers to execute, appropriate non-disclosure agreements and to use their commercially reasonable efforts to ensure that the Services are provided in a timely manner. Referrer agrees that Referral Partner shall not be responsible for the conduct or nonperformance by any of Referrer’s third-party service providers or subcontractors. In the event of termination or suspension of an AdWords account for any reason other than gross negligence or willful misconduct by Referrer, Referral Partner agrees to release Referrer from further performance under this Agreement without penalty upon notice of the AdWords account termination/suspension and Referrer’s inability to perform the Services in this Agreement.
(19) Referral Partner hereby maintains the following representations and warranties regarding its professional status, conduct, and submissions for payment:a. All applicable professional licenses of Referral Partner remain in good standing; b. Referral Partner’s attorneys, paralegals, staff, and any other employees of Referral Partner’s practice and/or business (collectively “Law Firm Personnel”) engage in the practice of law in accordance with all federal laws, state laws, State Supreme Court Rules, state bar regulations, and applicable standards of professional conduct that are in place in any of the states where Referral Partner provides legal services (collectively “Legal Conduct Regulations”). c. That at all times during the term of this Agreement, it is the sole responsibility of Referral Partner (as a provider of legal services), and not of Referrer, to ensure that Referral Partner does not violate any Legal Conduct Regulations. This includes, but is not limited to, those regulations in place regarding advertising for legal services and communications concerning legal services.d. That by entering into this Agreement, and complying with its terms, Referral Partner will not be violating any Legal Conduct Regulations.e. Referral Partner maintains a plan for compliance with applicable fraud and abuse laws and that the applicable practices associated with this plan are in place andbeing followed;f. Referral Partner must maintain an active malpractice insurance policy with adequate limits;g. Referral Partner’s Law Firm Personnel shall provide Referrer with immediate notice of malpractice and disciplinary actions against the Referral Partner, Law Firm Personnel, and/or Referral Partner’s practice and/or business;h. Referral Partner is not utilizing the Services to counsel or promote any business arrangement or other activity that violates any State or Federal Law;i. Referral Partner does not bill to any federal government payor and will not submit any claim for payment for services rendered to a patient referred as a result of the Services to any federal government payor.
(20) Each party (an “Indemnifying Party”) shall indemnify, defend and hold harmless the other party (the “Indemnified Party”), its affiliates, and each of their directors, officers, employees, and agents from and against all claims, suits and proceedings and any and all related liabilities, losses, expenses, damages and costs, including, without limitation, reasonable attorneys’ fees (collectively, “Losses”) incurred by the Indemnified Party, relating to or arising out of the breach by the Indemnifying Party of any of its duties, obligations, representations or warranties under this Agreement.
(21) Referrer warrants that it shall use commercially reasonable efforts to facilitate the Services being performed for Referral Partner by third-party service providers or subcontractors. REFERRER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY REFERRER, ITS AGENTS OR EMPLOYEES, SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF REFERRER’S LIMITED WARRANTY.
(22) NOTWITHSTANDING ANYTHING CONTAINED ELSEWHERE WITHIN OR WITHOUT THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL REFERRER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE OR TYPE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS FOR LOST PROFITS, REVENUES OR INFORMATION), AND REFERRER’S LIABILITY HEREUNDER (AS WELL AS THE LIABILITY OF ANY OFFICER, DIRECTOR, PARTNER, EMPLOYEE OR ANY OF REFERRER’S SERVICE REFERRERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS AND EMPLOYEE’S, AS THE CASE MAY BE) SHALL BE LIMITED IN ALL EVENTS TO AMOUNTS PAID TO REFERRER BY REFERRAL PARTNER UNDER THIS AGREEMENT.
(23) Referral Partner shall indemnify Referrer and its service providers and hold Referrer and its service providers harmless from and against any and all Losses suffered by or incurred by Referrer as a result of any claim or cause of action arising out of or relating to:a. Referral Partner’s performance of or failure to perform its obligations under this Agreement;b. any breach of the covenants, representations and warranties given to Referrer by Referral Partner under this Agreement; orc. any claim or cause of action against Referrer alleging that the content of any email, on-line transmission or other distribution of any materials provided byReferral Partner sent pursuant to the terms of this Agreement infringes or violates the rights of any third party.
(24) Each Indemnified Party shall (a) promptly notify the Indemnifying Party of any claim, suit, or proceeding for which indemnity is claimed (but the Indemnifying Party shall be relieved from liability only to the extent any delay in providing such notice prevents the Indemnifying Party from defending such claim, suit or proceeding); (b) cooperate reasonably with the Indemnifying Party at the Indemnifying Party’s expense; and (c) allow the Indemnifying Party to control the defense or settlement thereof. The Indemnified Party will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense.
(25) The Federal Arbitration Act and federal arbitration law will apply to the below Terms.
(26) ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO REFERRAL PARTNER’S USE OF ANY REFERRER’S SERVICES, WEBSITE, PRODUCT, WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT.
(27) Both parties are entitled to be represented by their own legal counsel in an arbitration proceeding, and the arbitrator shall have the authority to order discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute.
(28) The Arbitration proceeding will be conducted under the American Arbitration Association (“AAA”) rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at https://adr.org/Rules. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. The Referrer will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. The Arbitration proceeding will be conducted in Tampa, Florida.
(29) BY EXECUTING THIS AGREEMENT, REFERRER AND REFERRAL PARTNER WAIVE THE RIGHT TO HAVE ANY DISPUTE, CLAIM OR CONTROVERSY DECIDED BY A JUDGE OR JURY IN A COURT. THE PARTIES AGREE THAT EACH MAY BRING AND PURSUE CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLAIMED CLASS, REPRESENTATIVE OR COLLECTIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION WE EACH WAIVE ANY RIGHT TO A JURY TRIAL. HOWEVER, THE PARTIES AGREE THAT REFERRER AND REFERRAL PARTNER MAY BRING SUIT IN A COURT TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS.
(30) Confidential Information shall include all data, materials, products, technology, computer programs, specifications, manuals, business plans, software, marketing plans, financial information, and other information disclosed or submitted, orally, in writing, or by any other media, to Referral Partner by Referrer. Referral Partner understands that "Confidential Information" means any Referrer proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers (including, but not limited to, customers of the Referrer on whom Referral Partner called or with whom Referral Partner became acquainted during the term of this Agreement), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed to Referral Partner by the Referrer either directly or indirectly in writing, orally or by drawings or observation of parts or equipment. Confidential Information shall further mean (a) business or technical information or data (oral, written, electronic or otherwise), including, without limitation, a trade secret (as defined under applicable law), of or about a party provided or made available by such party to the other party that is competitively or commercially valuable to that party and not generally known or readily available by legal means to the general public, and (b) information regarding the existence, content or status of the business relationship described herein. Confidential Information shall not include information which (a) at the time of disclosure, was published, known publicly, or otherwise in the public domain, (b) after disclosure, is published, becomes known publicly, or otherwise becomes part of the public domain through no fault of the party receiving the Confidential Information, (c) prior to the time of disclosure, is known by that receiving party or, after disclosure, is independently developed by that receiving party as evidenced by its written records, (d) after disclosure, is made available to that receiving party in good faith by a third party who is under no obligation of confidentiality or secrecy to the party disclosing the Confidential Information, (d) information agreed to be disclosed in accordance with the provisions of this Agreement, or (e) information relating to past and present clients and customers of Referral Partner, this shall include, but not be limited to, information tendered to Referral Partner by Referrer in connection with the services detailed herein. Confidential Information does not include any item which has become publicly known and made generally available through no wrongful act or omission of the Referrer or of others who were under confidentiality obligations as to the item or items involved.
(31) The parties agree and shall cause their respective subcontractors to agree that they will not make use of, disseminate, or in any way disclose any Confidential Information to any person, firm or business, except as authorized by this Agreement and to the extent necessary for performance of this Agreement. The parties represent that they will exercise reasonable care to protect Confidential Information.
(32) Referrer and Referral Partner, and either party’s affiliates, and their officers, directors, trustees, employees, advisers, agents and other personnel, shall use at least the same care and discretion to prevent disclosure of Confidential Information of the other party as it uses with similar Confidential Information of its own that it does not desire to disclose, but in no event with less than a reasonable degree of care. Either party may use Confidential Information of the other party in order to carry out its obligations hereunder, but in doing so will only allow dissemination of Confidential Information internally on a need-to-know basis, provided such persons are first informed of the confidential nature of such information and directed to use or disclose it only as permitted herein. If either party must disclose any Confidential Information of the other party as required by law, then that party may make such disclosure after providing the other party with reasonable notice so that the other party may seek protective relief.
(33) Referral Partner agrees at all times during the term of this Agreement and thereafter, to hold in strictest confidence, and not to use, except for the exclusive benefit of the Referrer, or to disclose to any person, firm or corporation without written authorization of the Referrer, any Confidential Information of the Referrer.
(34) Referral Partner recognizes that the Referrer has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Referrer’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Referral Partner agrees to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out Services consistent with the Referrer’s agreement with such third party, if any.
(35) Referral Partner agrees that the Confidential Information is to be considered confidential and proprietary to Referrer and Referral Partner shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of its business with Referrer, and shall disclose it only to its officers, directors, or employees with a specific need to know. Referral Partner will not disclose, publish or otherwisereveal any of the Confidential Information received from Referrer to any other party whatsoever except with the specific prior written authorization of Referrer.
(36) Confidential Information furnished in tangible form shall not be duplicated by Referral Partner except for purposes of this Agreement. Upon the request of Referrer, Referral Partner shall return all Confidential Information received in written or tangible form, including copies, or reproductions or other media containing such Confidential Information, within ten (10) days of such request. At Referral Partner’s option, any documents or other media developed by the Referral Partner containing Confidential Information may be destroyed by Referral Partner. Referral Partner shall provide a written certificate to Referrer regarding destruction within ten (10) days thereafter.
(37) The obligations of Referral Partner herein shall be effective from the date Referrer first discloses any Confidential Information to Referral Partner pursuant to this Agreement. Further, the obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against Referral Partner, nor by the rejection of any agreement between Referrer and Referral Partner, by a trustee of Referral Partner in bankruptcy, or by the Referral Partner as a debtor-in-possession or the equivalent of any of the foregoing under local law.
(38) Referral Partner shall have no obligation under this Agreement with respect to Confidential Information which:a. is or becomes publicly available without breach of this Agreement;b. is rightfully received by Referral Partner without obligations of confidentiality; orc. is developed by Referral Partner without breach of this Agreement; provided, however, such Confidential Information shall not be disclosed until thirty (30) days after written notice of intent to disclose is given to Referrer along with the asserted grounds for disclosure.
(34) Nothing contained herein shall be construed as granting or conferring any rights by license or otherwise in any Confidential Information. It is understood and agreed that neither party solicits any change in the organization, business practice, service or products of the other party, and that the disclosure of Confidential Information shall not be construed as evidencing any intent by a party to purchase any products or services of the other party nor as an encouragement to expend funds in development or research efforts. Referral Partner agrees not to use any Confidential Information as a basis upon which to develop or have a third party develop a competing or similar product. Nothingherein shall be construed as granting either party any property rights, by license or otherwise, to any Confidential Information of the other party, or to any invention or any patent, copyright, trademark, or other intellectual property right of the other party except as specifically provided for in this Agreement. Neither party shall make, have made, use or sell any product or service or other item using, incorporating or derived from any of the other party’s Confidential Information except as provided in this Agreement.
(35) The obligations under this Section will survive the termination of this Agreement.
(36) This Agreement will be governed and construed in accordance with the laws of the state of Illinois without regard for conflicts of laws principles. The parties hereby expressly consent to arbitration in Tampa, Florida for any arbitration filed arising from or relating to this Agreement.
(37) Referral Partner agrees that in the event of any breach or threatened breach by Referral Partner, Referrer may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect Referrer against any such breach or threatened breach.
(38) This Agreement sets forth the entire agreement and understanding between the parties relating to the subject matter herein and supersedes all prior discussions or agreement between them, with the exception of any prior confidentiality agreements between the parties and privacy policies and/or terms of use controlling the use of Referrer’s website not covered by this Agreement. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof.
(39) The execution of this Agreement by electronic mail or by any other electronic means shall be deemed to constitute effective execution of this Agreement as to the parties hereto. Such electronic signatures may be used by the parties in lieu of the original signature page(s) of this Agreement for any and all purposes. Additionally, any signatures of the parties to this Agreement that are transmitted to the other party by facsimile shall be deemed original signatures for all purposes.
(40) In the event that any provision of this Agreement is found by a court or other body of competent jurisdiction to be unenforceable or invalid under any applicable law such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
(41) Nothing contained in this Agreement will be deemed or construed as creating a joint venture or partnership between Referral Partner and Referrer. Neither party, by virtue of this Agreement, is authorized as an agent, employee or legal representative of the other. Except as specifically set forth herein, neither party will have the power to control the activities and operations of the other. Each party will in all matters relating to this Agreement act as an independent contractor. No party will have authority and will not represent that it has any authority to assume or create any obligation, express or implied, on behalf of any other, or to represent any other party as an employee or in any other capacity except an agent for the purpose of providing the Services. Neither execution nor performance of this Agreement will be construed to have established any joint venture or partnership.
(42) This Agreement will be binding upon the parties’ heirs, executors, administrators and other legal representatives as well as their successors and assigns.
(43) The language used in this Agreement will be deemed the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against either party.
(44) This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which together shall constitute one agreement.
(45) Either party's failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.
(46) No amendment, change or modification of this Agreement shall be valid unless in writing signed by the parties hereto.
(47) Any delay in or failure by either party in performance of this Agreement shall be excused if and to the extent that such delay or failure is caused by occurrences beyond the reasonable control of the affected party, including, but not limited to, decrees or restraints of governments, acts of God, technical issues with Referrer’s website or out of Referrer’s control, strikes or other labor disturbances, war or sabotage, provided that, if a Force Majeure Event occurs for more than twenty-four (24) hours, the affected party shall promptly provide written or faxed notice thereof to the other parties, which notice shall include a description of the Force Majeure Event and the affected party’s best estimate of the length of time such Force Majeure Event will delay or prevent performance of the Agreement.
(48) All notices, demands, consents, approvals or other communications permitted or required hereunder shall not be effective unless the same shall be in writing and delivered, or sent postage prepaid, by first class mail, with or without return receipt requested, or sent by an local or overnight courier service with tracking capabilities or faxed to the parties using the contact information submitted through the site by Referral Partner, or by electronic mail to Referrer via info@accidentrecords.us, and shall be deemed served when so delivered or deposited in the United States Postal Service, courier service and/or upon receipt of the fax or electronic mail. Any party may designate by notice a new or different address, from time to time in accordance herewith.
(49) The parties acknowledge and agree to each of the following items:a. Parties are executing this Agreement voluntarily and without any duress or undue influence by the other or anyone else;b. Parties have carefully read this Agreement and have asked any questions needed for each to understand the terms, consequences and binding effect of thisAgreement and fully understand them; andc. Parties have sought or were given the opportunity to seek the advice of an attorney of its choice before signing this Agreement.
(50) Definitionsa. Catch-all definition:The following terms used in this Agreement shall have the same meaning as those terms in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use.b. Specific definitions:i. Business Associate. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103.ii. Covered Entity. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 CFR 160.103.iii. HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
(51) To the extent applicable, Business Associate agrees to:a. Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;b. Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosureof protected health information other than as provided for by the Agreement; c. Report to covered entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, includingbreaches of unsecured protected health information as required at 45 CFR164.410, and any security incident of which it becomes aware;d. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the business associate agree to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information; e. Make available protected health information in a designated record set to either the covered entity as necessary to satisfy covered entity’s obligations under 45CFR 164.524;f. Make any amendment(s) to protected health information in a designated record set as directed or agreed to by the covered entity pursuant to 45 CFR 164.526, or take other measures as necessary to satisfy covered entity’s obligations under 45 CFR 164.526;g. Maintain and make available the information required to provide an accounting of disclosures to the covered entity as necessary to satisfy covered entity’s obligations under 45 CFR 164.528; h. To the extent the Business Associate is to carry out one or more of covered entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the covered entity in the performance of such obligation(s); andi. Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
(52) Permitted Uses and Disclosures by Business Associate:a. Business Associate may only use or disclose protected health information as necessary to perform the services set forth in Agreement. In addition to other permissible purposes, the business associate is authorized to use protected health information to de-identify the information in accordance with 45 CFR 164.514(a)-(c).b. Business Associate may use or disclose protected health information as required by law.c. Business Associate agrees to make uses and disclosures and requests for protected health information consistent with covered entity’s minimum necessary policies and procedures.d. Business Associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 CFR Part 164 if done by covered entity.e. Business Associate may use protected health information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.f. Business Associate may disclose protected health information for the proper management and administration of business associate or to carry out the legal responsibilities of the business associate, provided the disclosures are required by law, or business associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies business associate of any instances of which it is aware in which the confidentiality of the information has been breached.g. Business Associate may provide data aggregation services relating to the health care operations of the covered entity.
(53) Miscellaneousa. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.b. The Parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.c. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date previouslymentioned above.
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Signed by Richard Hull Signed On: March 22, 2021
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Document Name: Referral Partner Contract - Attorneys
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