INDEPENDENT CONTRACTOR AGREEMENT
This Agreement (the “Agreement”) is made and entered into as of ______________ (the “Effective Date”), by and between Gorman and Associates, LLC and its affiliates (the “Company”), and Kristin Pelletier (the “Contractor”) (hereinafter referred to individually each as a “Party” and collectively the “Parties”).
Whereas, the Company desires to engage the Contractor to provide certain services in the area of the Contractor’s expertise and the Contractor is willing to provide such services to the Company; the Parties hereby agree as follows:
Engagement and Services.
Engagement. The Contractor agrees to perform such consultation, advisory and related services to and for the Company (the “Services”) as may be requested from time to time by the Company, including, but not limited to, the services specified on Exhibit A, or any subsequent Exhibits, to this Agreement (each a “Statement of Work”), in accordance with the terms and conditions set forth therein and in this Agreement.
Performance of Services. Contractor represents that Contractor is duly certified in active and good standing as an International Board Certified Lactation Consultant (IBCLC) and has the qualifications, the experience and the ability to properly perform the Services. Contractor shall use Contractor’s best efforts to perform the Services such that the results are satisfactory to the Company. Contractor shall be solely responsible for determining the location and means of performing the Services.
Tools, Instruments and Equipment. Contractor shall provide Contractor’s own tools, instruments and equipment, and place of performing the Services, unless otherwise agreed between the Parties.
Changes to Services. Any material changes to the Services, including the schedule, deliverables, and related fees, must be approved by the prior written consent of the Party not requesting the change.
Fees and Payment.
Fees. As consideration for the Services to be provided by Contractor and other obligations, the Company shall pay to Contractor the amounts specified in the Statement of Work (See Exhibit A).
Payment. The Contractor shall submit to the Company semi-monthly invoices (on or after the 1st and 15th of every month) detailing the Services performed during the preceding fifteen (15) days and the amount due. All such invoices shall be due and payable within thirty (30) calendar days after receipt thereof by the Company.
Term.
Commencement. This Agreement shall commence on the Effective Date and shall remain in effect for six (6) months or the earlier termination of this Agreement as provided in Article 3(b). The Agreement term will automatically extend for subsequent sixty (60) day periods until Termination and can be further extended upon mutual agreement of the Parties. In addition to the Statement of Work in Exhibit A, the Parties may enter into any subsequent Statement of Work for additional Services to be performed by the Contractor which shall be subject to the terms of this Agreement, unless otherwise specified.
Termination. Either Party may terminate this Agreement at any time, with or without cause, upon fifteen (15) days written notice. Either Party also may at any time terminate the Agreement immediately if the other party commits a breach of this Agreement and such party does not cure a breach within thirty (30) days of written notice from the non-breaching party of such breach. If this Agreement is terminated early by the Company without or without cause, the Company agrees to pay the Contractor any and all sums which are due and payable for services provided per the contract as of the date of termination. Termination for any reason shall not affect the rights granted to the Company by the Contractor hereunder. Any provisions or clause in this Contract that, by its language or context, implies its survival shall survive any termination or expiration of this Agreement.
Independent Contractor Relationship. Contractor’s relationship to the Company shall be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, joint venture, employer-employee or agency relationship between Company and Contractor. Contractor shall not represent to any third party that any such relationship exists. The contractor relationship shall be non-exclusive. Contractor shall be free to work with other companies so long as such work does not present a conflict of interest or result in the disclosure of Confidential Information (defined below). Additionally, Contractor acknowledges and agrees that Contractor shall not be eligible for any Company employee benefits.
Taxes. Contractor shall be paid pursuant to IRS Form 1099, and shall have full responsibility for applicable taxes for all compensation paid to Contractor under this Agreement, and for compliance with all applicable labor and employment requirements with respect to Contractor’s self-employment, sole proprietorship or other form of business organization.
Insurance. Contractor shall maintain appropriate and adequate insurance, with liability coverage specific for contractor’s highest level of applicable certification, and limits no less than $1 million maximum per claim ($3 million aggregate), to the Company to cover any claims which might arise in connection with Contractor’s provision of Services.
Warranty, Ownership and License.
Defined. In this Agreement the term “Work Product” shall mean all deliverables, ideas, inventions, improvements, methods, processes, works of authorship and other forms of intellectual property that the Contractor conceives, reduces to practice or develops during the term of the Agreement, alone or in conjunction with others, in connection with performance of the Services, including designs, templates, copy, articles, data, software code, ideas, inventions, know-how, materials, marks, methods, procedures, tools, interfaces, and other forms of technology as well as any intellectual property rights of any kind therein.
Warranty. Contractor represents, warrants, and covenants that
the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation Contractor may have to others;
none of the Services or Inventions or any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Contractor);
Contractor has the full right to provide Client with the assignments and rights provided for herein;
Contractor shall comply with all applicable laws in the course of performing the Services;
if Contractor’s work requires a certification, Contractor has obtained that certification and the certification is in full force and effect, and
that the Work Product will conform to the specifications, requirements and other terms set forth in this Agreement (the “Specifications”) and the attached Exhibit A.
Ownership. Contractor agrees to assign and does hereby assign to the Company all right, title and interest in and to the Work Product. All Work Product will be the sole and exclusive property of the Company. Any and all elements of the Work Product that are works of authorship eligible to be “works made for hire” under the U.S. Copyright Act shall be considered works made for hire with the Company as “author.” Contractor hereby irrevocably assigns to Company all right, title and interest worldwide in and to the Work Product and all intellectual property rights therein.
In the event that any such material is considered not to be a “work made for hire,” Contractor hereby assigns all ownership (whether represented or not by a registered patent, copyright, trade secret) and other proprietary or rights, title and interest in such deliverables and materials to the Company, and agrees to execute such documents as the Company may reasonably request, in order to assist the Company in obtaining and protecting such rights.
Contractor agrees that Contractor has no interest in any materials that Contractor submits to the Company, including, without limitation, any security interest therein, and hereby releases to Client any interest therein (if any) which may be created by operation of law. Except as otherwise agreed to in writing and as necessary in the performance of this Agreement, Contractor shall have no rights to license, sell or use the deliverables or materials developed under this Agreement, or any portion thereof.
License. In the event that Contractor integrates any work that was previously created by the Contractor into any Work Product, the Contractor shall grant to, and company is hereby granted, a worldwide, royalty-free, perpetual, irrevocable license to exploit the incorporated items, including, but not limited to, an and all copyrights, patents, designs, trade secrets, trademarks or other intellectual property rights, in connection with the Work Product in a manner that Company deems appropriate. Contractor warrants that it shall not knowingly incorporate into any Work Product any material that would infringe any intellectual property rights of any third party.
Confidential Information. In this Agreement, unless the context otherwise requires, “Confidential Information” means any and all information, including that which is supplied orally, written and printed, that is or has been received by the Contractor from the Company and that: (i) relates to the Company’s business, operations or activities; or (ii) is designated by the Company as being confidential or is disclosed in circumstances where Contractor would reasonably understand that the disclosed information would be confidential; but excludes information that, without a breach of any obligation owed to the Company (i) is or subsequently becomes publicly available; (ii) became known to Contractor before the Company’s disclosure of such information to Contractor, as evidenced by the Contractor’s written records; (iii) was disclosed by a third party having a lawful right to do so; or (iv) was independently developed by Contractor; and, without limiting the generality of the foregoing, Confidential Information shall include trade secrets, technical information, business forecasts and strategies, marketing plans, reports, investigations customer and supplier lists, personnel information, financial data, research, projections, work in progress, designs, plans, programs, strategies, government filings and all other confidential concepts, know-how, methods of doing business, ideas, materials or information prepared or performed by or on behalf of the Company, and proprietary information of third parties provided to Company in confidence. Contractor will (a) hold all Confidential Information in strict trust and confidence; (b) not use or permit others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement; and (c) not disclose or permit others to disclose any Confidential Information to any third party without obtaining Company’s express prior written consent on a case-by-case basis.
Non-Disclosure. Contractor shall not, directly or indirectly, disclose or use Confidential Information for any purpose other than set out in this Agreement, except where:
Contractor has received the prior written approval of the Company to use or disclose the particular information in a manner not already expressly authorized by the terms of this Agreement;
Contractor is compelled to disclose the information by law or regulatory order, provided Contractor shall first attempt to notify the Company before such disclosure in order to give the Contractor a reasonable opportunity to seek an appropriate protective order and/or waive compliance with the terms of this Agreement and, if Contractor is still required to make a disclosure, Contractor shall disclose only as much of the information as is required by law or regulatory order;
Contractor shall notify the Company in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement and shall reasonably cooperate with the Company to regain possession of such Confidential Information and prevent its further unauthorized use or disclosure.
Within 3 business days of receipt of the Company’s request, Contractor shall destroy or return to the Company all materials containing Confidential Information, and at the Company's option, Contractor shall certify that it has fully satisfied this request.
Assignment. The Services to be performed by the Contractor hereunder are personal in nature, and the Company has engaged the Contractor as a result of the Contractor's expertise relating to such Services. Contractor, therefore, agrees that it will not assign, sell, transfer, delegate or otherwise dispose of this Agreement or any right, duty or obligation under this Agreement without the Company’s prior written consent. Nothing in this Agreement shall prevent the assignment by the Company of this Agreement or any right, duty or obligation hereunder to any third party.
No Authority to Bind Company. Contractor acknowledges and agrees that Contractor has no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company.
Non-Solicitation.
Non-Solicitation of Employees and Associates. In consideration of being engaged as a business associate of the Company, the Contractor agrees that, during the term of the Contractor’s agreement with the Company and for a period of one (1) year from such date of termination, the Contractor shall not, directly or indirectly, approach, solicit, entice, or attempt to approach, solicit, or entice employees or other business associates of the Company to leave the employment or terminate a relationship with the Company.
Non-Solicitation of Customers.
Defined. “Customer” means (1) any person who was a client, customer or partner of the Company at the time of the termination of Contractor’s business relationship with the Company; (2) any person who was a client or customer or partner of the Company at any time during or prior to the Contractor’s business relationship; and (3) any person who was pursued by the Company as a potential or prospective client or customer or partner by way of any written submission made by the Company during the Contractor’s business relationship.
Non-Solicitation. In consideration of being engaged as a business associate of the Company, the Contractor agrees that the Contractor shall not, during the term of the Contractor’s contract with the Company and for a period of three (3) year(s) thereafter directly or indirectly contact or solicit, or attempt to contact or solicit, any Customer of the Company for the purposes of:
gaining the business of such Customer, or providing such Customer any products or services which are the same as or substantially similar to, or in competition with, the products or services sold by the Company at the time of the Contractor’s termination; or
advising any person not to do business with the Company, or interfering in any way with the business relationship between the Company and any Customer, contractor, supplier or any other person with whom the Company has a business relationship during the term of this Agreement.
Indemnification. Contractor will indemnify and hold harmless the Company and its affiliates, employees, and agents from and against any and all claims, actions, liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising (i) through Contractor’s gross negligence; (ii) out of any claim that the materials or deliverables, or any portion thereof, in fact infringes upon or violates any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of Contractor’s representations, warranties, obligations or agreements herein. In the event of any third-party claim, demand, suit, or action, including third party claims that Contractor is an employee or agent of the Company (a “Claim”), for which Company (or any of its affiliates, employees, or agents) is or may be entitled to indemnification hereunder, Company may, at its option, require Contractor to defend such Claim at Contractor’s sole expense. Contractor may not agree to settle any such Claim without Company’s express prior written consent.
Limitation of Liability. In no event will the Company be liable for any consequential, indirect, exemplary, special, or incidental damages arising from or relating to this Agreement. Company’s total cumulative liability in connection with this Agreement, whether in contract or tort or otherwise, will not exceed the aggregate amount of Fees owed by Company to Contractor for Services performed under this Agreement.
Force Majeure. Either Party shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature. The obligations and rights of the Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations hereunder shall resume. In the event the interruption of the excused Party’s obligations continues for a period in excess of thirty (30) calendar days, either Party shall have the right to terminate this Agreement upon fifteen (15) days’ prior written notice to the other Party.
Miscellaneous.
Non-Publicity. Each the Company and Contractor agree not to disclose the existence or contents of this Agreement to any third party without the prior consent of the other Party except: (i) To its advisors, attorneys or auditors who have a need to know such information, (ii) As required by law or court order, (iii) As required in connection with the reorganization of a Party, or its merger into any other corporation, or the sale by a Party of all or substantially all of its properties or assets, or (iv) As may be required in connection with the enforcement of this Agreement.
Severability. Should any part of this Agreement be declared or held invalid for any reason, that invalidity shall not affect the validity of the remainder which shall continue in force and effect and be construed as if this Agreement had been executed without the invalid portion and it is hereby declared the intention of the parties hereto that this Agreement would have been executed without reference to any portion which may, for any reason, be hereafter declared or held invalid.
No Waiver. No provision of this Agreement shall be amended, altered or waived except by a further written agreement, signed by each of the parties hereto. No waiver of any provision hereof shall operate as a waiver of any other provision or as a waiver of the same provision on any other occasion
Entire Contract. This Agreement, along with this Exhibit A, and any future agreed upon exhibits, schedules or attachments, between the Parties supersedes any previous arrangements, oral or written, and may not be modified in any respect except by a future written agreement signed by both Parties.
Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by email or fax (upon customary confirmation of receipt), or forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address or fax number as set forth on the signature page or as subsequently modified by written notice.
Arbitration. Any dispute, controversy or claim arising out of or in connection with this Agreement or any breach or alleged breach hereof shall, upon the request of any Party, be submitted to, and settled by, arbitration in the County of Baltimore, State of Maryland, pursuant to the arbitration rules then in effect of the American Arbitration Association (or at any other place or under any other form of arbitration mutually acceptable to the Parties involved). Any award rendered shall be conclusive upon the Parties and judgement theron may be entered in the highest court of the forum, state or federal, having jurisdiction. The expenses of the arbitration shall be borne equally by the Parties to the arbitration provided that each Party shall pay for and bear the cost of its own experts, evidence and counsel’s fees, except that in the discretion of the arbitrator, any award may include the cost of a Party’s counsel if the arbitrator expressly determines that the Party against whom such award is entered has caused the dispute, controversy or claim to be submitted to arbitration as a dilatory tactic.
Choice of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Maryland, without giving effect to the principles of conflict of laws.
Advice of Counsel. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signature Page Follows]
In Witness hereof, the Parties have executed this Agreement as of the date set forth above.
Amanda Gorman
Signed:
_______________________
Date:
_________________________
Company
Gorman and Associates, LLC
(DBA Nest Collaborative)
PO Box 846
Sparks, MD, 21152, US
443/410-0022
Kristin Pelletier
Signed:
_______________________
Date:
_________________________
Contractor Information
Exhibit A: Statement of Work
July 20, 2017
Contractor:
Kristin Pelletier
Job Title:
Lactation Consultant (Independent Contractor)
Supervisory Report:
Amanda Gorman
Term
Start date: 7/15/2017 - End date: 1/15/2018
Payment Terms
The Contractor shall be paid by the Company per the Fee Schedule below and in accordance with the completion of Services detailed in the Summary of Services.
Description of Services
Summary of Services
Services
Provision of remote lactation consultation services via online telehealth platform under standards of care pertinent to breastfeeding education, including feeding-related history and physical assessment of mother/baby, treatment planning, client education, and complete documentation of visits in electronic health record(s) (EHR) per company protocol.
Estimated Hours
1 - 4 per week
Completion Dates
Upon acceptance of a client appointment by an established company “Client Request/Contractor Accept” (CR/CA) protocol, contractor shall complete service and documentation of service within 24 hours of client’s documented appointment time.
Payment
Fee for services per Fee Schedule below.
Work Schedule. Contractor will advise Company of a regular and recurrent schedule of availability for services. Availability will remain, at minimum, 4 hours per week with a reasonable exception made for vacations, illness and other unforeseen circumstances. Any future changes to contractor scheduling will be noted by addendum.
Assignment. Upon acceptance per company CR/CA protocol, Contractor will remotely provide patient-facing lactation consultant services to company clients via online telehealth video platform provided by the Company. Phone consultation should not be performed unless secondary to failure of telehealth platform during an active client telehealth visit. Phone or email consultation services are otherwise not reimbursed. Contractor will accurately document comprehensive visit details per company protocol in company-provided charting system. Visit details should be finalized within 24 hours of patient visit. Delays should be reported to the supervisor prior to deadline.
Client Visits. Initial client fee is assessed for the first 30 minutes of a visit. Contractor shall advise client at or near the start of the visit (ideally within first ten (10) minutes) as to the estimated time suggested for the visit. Contractor will extend visit over 30 minutes only with verbal authorization and understanding of additional charges from patient; discussion and authorization will be documented in client’s chart. Average patient-facing consultation time per visit is expected to be 30-60 minutes; maximum visit time is 90 minutes. Clients desiring visit time over 90 minutes will require an additional and separate appointment time.
Equipment: Desktop or laptop computer with reliable high-speed internet access is required. In best efforts to secure work-related data, contractor is expected to maintain an updated computer operating system at all times.
Data Storage: In an effort to maintain good HIPAA practices, contractors shall avoid keeping patient health information (PHI) on personal record, including handwritten and electronic files. All patient-identifying PHI should be maintained solely on one of the company provided cloud-based platforms, for which access is provided. Any other physical or electronic files should be securely destroyed once confidently uploaded and saved to a company platform.
Fees. Contractor fees are calculated based on patient-facing time per the Fee Schedule below.
FEE SCHEDULE
For each individual client consultation, ONE of the following fees may be assessed.
Service
Payment (USD)
Remote Lactation Consultation (0-30 minutes) via Telehealth Platform
$40.00
Remote Lactation Consultation (31-60 minutes) via Telehealth Platform
$60.00
Remote Lactation Consultation (61-90 minutes) via Telehealth Platform
$80.00
*Max Fee per Consultation: $80.00 (90 minutes total)
Additions. Additional projects and charges must be agreed to in writing by the Company and Contractor and added through an amendment of this agreement. Additional fees and charges will be assessed by the Contractor on a per-project basis, depending on the complexity and time required.
Reimbursable Expenses. Contractor shall not be authorized to incur on behalf of the Company any expenses and will be responsible for all expenses incurred while performing the Services.
[Signature Page Follows]
In Witness hereof, the Parties have acknowledged and agreed to this Statement of Work as of the dates set forth below.
Amanda Gorman, Owner
Signed:
_______________________
Date:
_________________________
Company
Gorman and Associates, LLC
(DBA Nest Collaborative)
PO Box 846
Sparks, MD, 21152, US
443/410-0022
Kristin Pelletier
Signed:
_______________________
Date:
_________________________
Contractor Information