PROFESSIONAL CONSULTING & MARKETING SERVICES AGREEMENT
This PROFESSIONAL CONSULTING & MARKETING SERVICES AGREEMENT (this “Agreement”) is made and entered into as of _______________, 2022 (the “Effective Date”) by and between MD Farma, LLC dba Corganics, a Texas limited liability company (“Company”) and _____________________________(“Contractor”). Company and Contractor will be collectively known as “Parties” or individually as “Party.”
- Company is a for-profit organization engaged in the business of providing certain wellness and healthcare related items and products to commercial entities and consumers.
- Company and Contractor desire to enter into this Agreement for the provision of certain marketing, consulting and business development services by Contractor, as an independent contractor, to Company upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Article 1 ENGAGEMENT
1.1 Engagement. Company hereby retains Contractor, on an exclusive basis, to perform or cause to be performed certain marketing, consulting and business development services (“Services”) on behalf of Company during the Term (as hereinafter defined) of this Agreement, and Contractor hereby accepts such engagement on and subject to the terms and conditions set forth herein.
Article 2 SERVICES
2.1 Services. During the Term of this Agreement, Contractor shall provide Company with Services, as defined in Exhibit A attached hereto.
Subject to the terms and conditions set forth herein, Contractor agrees that it will:
- perform the Services in a professional, workmanlike, prompt and commercially reasonable manner in accordance with all applicable federal, state and local laws, rules ordinances and regulations; and
- be solely responsible for all costs and expenses incurred in performance of the Services under this Agreement.
Article 3 COMPENSATION
3.1 Service Fees. In return for Contractor’s performance of the Services, Company shall pay to Contractor those service fees described in Exhibit A attached hereto (the “Service Fees”). The Service Fees shall be paid on or before the 15th day following the end of each quarter.
3.2 Reasonable Fair Market Value. Payment of the Service Fees is acknowledged as the parties’ negotiated agreement as to the reasonable fair market value (“FMV”) of the Services furnished by Contractor pursuant to this Agreement considering the nature and volume of the services required and the risks assumed by Contractor. Company and Contractor recognize and acknowledge that
- Contractor’s marketing and business development expertise shall contribute significant value to Company,
- Contractor will incur substantial costs and business risks in providing the Services, and
- certain of such costs and expenses can vary to a considerable degree according to the extent of the success of Company’s business. It is the intent of the parties that the Service Fees reasonably compensate Contractor for the value to Company of Contractor’s marketing and business development expertise, given the considerable business risk to Contractor in providing the Services.
3.3 Reasonable Level of Services. The parties acknowledge and agree that the aggregate services contracted for hereunder do not and will not exceed those that are reasonably necessary to accomplish the commercially reasonable business purposes of Company.
3.4 Legality of Services. The parties acknowledge and agree that this Agreement sets forth the parties understanding with respect to all of the Services that Contractor is to provide to Company during the Term hereof. The parties further acknowledge and agree that the Services to be performed by Contractor hereunder do not involve the counseling or promotion of a business arrangement or other activity that violates any state or federal law.
Article 4 TERM AND TERMINATION
4.1 Term. The initial term of this Agreement shall be for the duration of one (1) year, This Agreement will automatically renew for additional, successive one (1) year periods, unless either party provides the other party written notice of its desire to terminate at least ten (10) days prior to the end of the then current term.
4.2 Early Termination. This Agreement may be terminated immediately at any time by mutual consent embodied in a written agreement to terminate signed by an authorized representative of each of the parties hereto.
4.3 Termination for Just Cause. Either party may terminate this Agreement immediately at any time for “just cause”. The parties expressly agree that a party will have “just cause” for termination as aforesaid upon the happening of any of the following occurrences or acts:
- Either party ceases to function as a going concern or conduct its operations in the normal course of business;
- The (x) suspension, liquidation or dissolution, or notice thereof, of substantially all of a party’s usual business without the prior written consent of the other party hereto, (y) assignment by a party for the benefit of its creditors, or (z) filing of a voluntary or involuntary petition under the provisions of the U.S. Federal Bankruptcy Act or amendments thereto, or any application for or appointment of a receiver for the property of a party, the filing of which remains unsatisfied and discharged at the end of sixty (60) days after the occurrence of such event;
- Either party, without the other party’s prior written consent, attempts to partially or wholly assign its rights or delegate its duties under this Agreement;
- Either party is prevented from substantially performing its obligations under this Agreement by any applicable law enacted or by any applicable order, rule, regulation, decree or ordinance promulgated by any appropriate governmental authority; or
- Either party fails to comply with any of the terms of this Agreement, and fails to cure such non-compliance to the reasonable satisfaction of the non-breaching party within five (5) days after receipt of reasonably detailed written notice of the breach, then the non- breaching party may immediately terminate such Agreement.
4.4 No Cause Termination. This Agreement may be terminated at any time by either party by providing the other party with at least ten (10) days written notice of such party’s intention to terminate this Agreement.
4.5 Effect of Termination. Upon termination of this Agreement, neither party shall have any further obligations hereunder, except for (i) No additional Service Fees will be due if Agreement is terminated for cause, (ii) other obligations set forth in this Agreement that specifically survive the expiration and/or earlier termination hereof.
Article 5 CONFIDENTIALITY
5.1 Confidential Information. Each party recognizes and acknowledges that, by virtue of entering into this Agreement and performing their respective obligations hereunder, each party may have access to certain information of the other party that is confidential and constitutes proprietary, valuable, special and unique property of the other party. For the purposes of this Agreement, Confidential Information means, without limitation, all information proprietary to either party, whether or not marked “confidential,” that constitutes trade secrets and/or confidential information as construed by applicable law or information that is not already available to the public, all of which the parties hereto agree constitutes trade secrets under the Uniform Trade Secrets Act, including, but not limited to, all information relating directly or indirectly to the business of either party, prospect lists, referral sources, customer lists and customer information, information concerning services and supplies, marketing programs, computer program and systems, business and supplier contracts, techniques, processes, methods, technologies, business information, financial data, financial plans, products, equipment, sales information, costs data, personnel, product tests, pricing policies, distributorship arrangements, business plans or business strategies, information regarding any acquisition or joint venture arrangements or other enterprises with whom either party has business relationships. Confidential Information does not include (i) information that is generally available to the public at the time of receipt by either party, (ii) subsequently becomes generally available to the public through fault of the party to which the information was disclosed to hereunder or (iii) information that is properly and lawfully in the possession of either party and was not obtained, directly or indirectly, from the other party or from another source known to the other party to be bound by a duty of confidentiality.
5.2 Duty to Keep Confidential Information Confidential. Each party hereby agrees and undertakes that with respect to Confidential Information each party will:
- Treat and keep all Confidential Information of the other party as secret and confidential.
- Not divulge, reveal, publish, communicate or disclose any Confidential Information, directly or indirectly, of the other party to any other person except (1) with the prior written consent of the disclosing party, (2) as may be required by law, in which case the party to which the Confidential Information was disclosed to agrees to provide the other party prior written notice and cooperate with it in seeking such legal remedies as may be available to prevent such disclosure, and (3) to a party’s legal counsel, accountants or financial advisors.
- Not use any Confidential Information of the other party in any way or for any purpose other than for the purpose of fulfilling the terms and obligations of this Agreement.
- Not use any Confidential Information of the other party for personal benefit or for the personal benefit of any other person or entity.
- Use commercially reasonable efforts to maintain the secrecy and confidentiality of Confidential Information of the other party and ensure that Confidential Information is not disclosed by any person, in whole or in part, contrary to any of the terms of this Agreement.
- Not disclose the terms of this Agreement to any person who is not a party or signatory, unless disclosure thereof is required by law or otherwise authorized by this Agreement or consented to in writing by the other party, such that the unauthorized disclosure of the terms of this Agreement shall be a material breach of this Agreement and shall provide the non-disclosing party with the option of pursuing remedies for breach or termination of this Agreement in accordance with Section 4.3(v) hereof.
5.3 Disclosure of Terms of this Agreement. Except for disclosure to a party’s legal counsel, accountants or financial advisors, neither party shall disclose the terms of this Agreement to any person who is not a party or signatory, unless disclosure thereof is required by law or otherwise authorized by this Agreement or consented to in writing by the other party. Unauthorized disclosure of the terms of this Agreement shall be a material breach of this Agreement and shall provide the non-disclosing party with the option of pursuing remedies for breach or termination of this Agreement in accordance with Section 4.3(v) hereof.
5.4 Survival. The provisions of this Article 5 shall survive expiration or other termination of this Agreement, regardless of the cause of such termination.
Article 6 COMPLIANCE WITH LEGAL REQUIREMENTS
6.1 General Compliance. The parties hereto enter into this Agreement with the intent of conducting their relationship in full compliance with applicable state, local and Federal law, including but not limited to the Healthcare Laws (as defined below). Notwithstanding any unanticipated effect of any of the provisions of this Agreement, no party shall intentionally conduct itself under the terms of this Agreement in a manner that would constitute a violation of the Healthcare Laws. The parties will perform their respective obligations under this Agreement in accordance with the terms hereof. Any agreements between the parties will be in writing, and the parties will perform their respective obligations under such agreement only in accordance with the terms thereof.
For purposes of this Agreement, the term “Healthcare Laws” means applicable provisions of the Federal Social Security Act (including but not limited to the Medicare and Medicaid Anti-Fraud and Abuse Amendments (42 U.S.C. § 1320a-7a and -7b), the Patient Protection and Affordable Care Act (Pub. L. No. 111-148, 124 Stat. 119 (2010)), the Federal Patient Anti-Self Referral Law (42 U.S.C. § 1395nn)), the Texas Medical Practice Act (Texas Occupations Code § 151.001 et seq.) the Texas Patient Non-Solicitation Law (Texas Occupations Code § 102.001), any and all other applicable state statutes and laws, and any regulations promulgated thereunder, as these laws may now exist or hereafter may be amended.
6.2 Reformation. In the event that subsequent to the date of this Agreement (i) the contents or validity of this Agreement are challenged by any governmental authority under applicable law, particularly a Healthcare Law, or (ii) that either party determines, based upon advice received from legal counsel, that a violation of a law, particularly a Healthcare Law has occurred as a result of this Agreement or that a violation of a law, particularly a Healthcare Law will occur as a result of this Agreement, then such party shall promptly notify the other party with respect thereto. The parties shall promptly use reasonable efforts to analyze, revise, reform and, to the extent necessary, restructure this Agreement and the relationship among the parties in order to fully comply with applicable law in a manner that is equitable to each party.
6.3 Failure to Reform. In the event the parties are unable to formulate a mutually acceptable plan to revise, reform and restructure this Agreement in order to fully comply with all applicable laws within ten (10) days after the parties initiate negotiations with respect to such plan, then this Agreement shall automatically terminate.
6.4 Patient Information. Contractor shall not disclose to any third party, except where permitted or required by law or where such disclosure is expressly approved by Company in writing, any patient or medical record information regarding patients of Company, and Contractor shall comply with all federal and state laws and regulations, and all bylaws, rules, regulations, and policies of Client regarding the confidentiality of such information. Contractor acknowledges and agrees that Contractor shall be deemed to constitute a “business associate” of Company as such term is defined in the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”) and any applicable state law equivalent with the objective to maintain confidentiality and security of protected health information. Accordingly, Contractor shall comply with all applicable provisions of HIPAA, any equivalent state law and the regulations and rules promulgated thereto, including, without limitation, executing and delivering to Company a business associate agreement in the form as attached as Exhibit B hereto.
Article 7 INDEMNIFICATION
7.1 Indemnification by Contractor. Contractor shall defend and indemnify Company and the members, Contractors, officers, employees, agents, affiliates, successors and assigns of Company (each of the foregoing being hereinafter referred to individually as a “Company Indemnified Party”), from and against any and all losses, liabilities, damages, actions, costs, and expenses (including reasonable attorneys’ fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties) (collectively, “Losses”) of Company Indemnified Party arising out of or resulting from any claim, demand, charge, action, cause of action, or other proceeding asserted by any third party against Company Indemnified Party arising from or in connection with (i) the performance of Contractor’s duties and obligations under this Agreement, except to the extent it is determined by a court of competent jurisdiction that a proximate cause of the Loss was the negligent or willful act or omission of Company or a Company employee, officer, Contractor, agent or affiliate, or (ii) Contractor’s business activities that are independent of the matters that are the subject of this Agreement. Contractor’s obligation to indemnify any Company Indemnified Party will survive the expiration or termination of this Agreement by either party for any reason.
7.2 Indemnification by Company. Company shall defend and indemnify Contractor and the owners, directors, officers, employees, agents, affiliates, successors and assigns of Contractor (each of the foregoing being hereinafter referred to individually as a “Contractor Indemnified Party”), from and against any and all losses, liabilities, damages, actions, costs, and expenses (including reasonable attorneys’ fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties) (collectively, “Losses”) of Contractor Indemnified Party arising out of or resulting from any claim, demand, charge, action, cause of action, or other proceeding asserted by any third party against Contractor Indemnified Party arising from or in connection with (i) the performance of Contractor’s duties and obligations under this Agreement, except to the extent it is determined by a court of competent jurisdiction that a proximate cause of the Loss was the negligent or willful act or omission of Contractor or a Contractor employee, officer, Contractor, agent or affiliate, or (ii) Contractor’s business activities that are independent of the matters that are the subject of this Agreement. Company’s obligation to indemnify any Contractor Indemnified Party will survive the expiration or termination of this Agreement by either party for any reason.
7.3 Notification of Claim. For purposes of this Section 7.1 and Section 7.2, a Company Indemnified Party and a Contractor Indemnified Party shall be referred to as an “Indemnified Party”. Each Indemnified Party under this Article 7 shall promptly, and in any event within ten (10) days after notice to such Indemnified Party of any claim as to which it asserts a claim for indemnification, notify the other party (the “Indemnifying Party”) in writing of such claim and the amount thereof; provided, however, that the failure to give such notification shall not relieve the Indemnifying Party from any liability which it may have pursuant to the provisions of this Article 7 as long as the failure to give such notice within such time is not prejudicial to the Indemnifying Party. Notice to an Indemnified Party for the purpose of the preceding sentence shall mean the filing of any legal action, receipt of any claim in writing or similar form of actual notice.
7.4 Defense of Claim. The Indemnifying Party shall, by written notice to the Indemnified Party, undertake to conduct any proceedings or negotiations in connection with any claim for indemnification hereunder or necessary to defend the Indemnified Party and take all other steps or proceedings to settle or contest such claim, including without limitation, the employment of counsel; provided, however, that the Indemnifying Party shall reasonably consider the advice of the Indemnified Party as to the defense and settlement of such claim and the Indemnified Party shall have the right to participate, at its own expense, in such defense, but control of such litigation and settlement shall remain with the Indemnifying Party. The Indemnified Party shall provide all reasonable cooperation in connection with any such defense by the Indemnifying Party. Counsel and auditor fees, filing fees and court fees of all proceedings, contests or lawsuits with respect to any such claim shall be borne by the Indemnifying Party. If any such claim is made hereunder and the Indemnifying Party fails to undertake the defense thereof by written notice to the Indemnified Party, the Indemnified Party shall be entitled to indemnification with respect thereto pursuant to the terms of this Article 7.
7.5 Scope of Indemnification. The indemnification provided under this Article 7 shall supplement, and not supersede or replace, any protection or rights that may be afforded to either party under any insurance policies maintained by such party that provide coverage for an act that may serve as a basis for a claim of indemnification hereunder.
Article 8 MISCELLANEOUS
8.1 Notices. All notices, requests and other communications under this Agreement shall be in writing (including a writing delivered by facsimile transmission) and shall be deemed to have been duly given if delivered personally, or sent by either certified or registered mail, return receipt requested, postage prepaid, or by overnight courier guaranteeing next day delivery, or by facsimile, addressed as follows:
- If to the Company:
MD Farma, LLC dba Corganics
550 S. Watters Drive
Attention: Officers – Chad Collins and/or Reggie Gatewood
or at such other address or facsimile number as Company may have advised Contractor in writing; and
- If to Contractor:
Practice or Co. Name________________________________
or at such other address or facsimile number as Contractor may have advised as Company in writing.
All such notices, requests and other communications shall be deemed to have been received on the date of delivery thereof, if delivered by hand, on the fifth day after the mailing thereof, if mailed, on the next day after the sending thereof, if by overnight courier, and when receipt is acknowledged, if faxed.
8.2 Waivers and Amendments. No amendment or waiver of any provision of this Agreement, nor consent to any departure therefrom, shall be effective unless the same shall be in writing and signed by a duly authorized officer of each of Contractor and Company, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No failure on the part of a party hereto to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies provided in this Agreement are cumulative and not exclusive of any remedies provided by law.
8.3 Assignment. Neither party may assign any right, or delegate any duty under this Agreement, in whole or in part, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Any attempted assignment without such consent shall be void and of no effect.
8.4 Independent Contractor. The parties agree and acknowledge (i) that Contractor is an independent contractor of Company pursuant to the terms and conditions of this Agreement, (ii) that Contractor shall not be entitled to participate in any plans, arrangements, or distributions by Company pertaining to or in connection with any pension, bonus, profit sharing plan or similar benefit available to Company’s employees, (iii) that Contractor is not covered through Company by the Unemployment or Worker’s Compensation Acts of Texas or any other state statute, (iv) that it is the responsibility of Contractor to collect, withhold and pay to the proper state and/or federal authorities any and all taxes applicable to Contractor and Contractor’s business, and (v) that Company shall provide Contractor annually with an information federal tax form (I.R.S. Form 1099 “Statement for Receipt of Miscellaneous Income (Annual)”) or similar appropriate form with respect to the Service Fee (as hereinafter defined) paid by Company to Contractor. As an independent contractor, Contractor shall be free to dispose of Contractor’s time, energy, and skill as Contractor sees fit in providing the Services to Company and Company shall have no right to control the manner and means by which Contractor provides the Services under this Agreement.
8.5 Exhibits. The Exhibits attached hereto or referred to herein are incorporated herein and made a part hereof for all purposes. As used herein, the expression “this Agreement” means this document and such Exhibits.
8.6 Governing Law. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO, SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
8.7 Arbitration. The parties shall use their respective best efforts to settle amicably any disputes, differences or controversies arising between the parties out of or in connection with or in respect of this Agreement. However, if not so settled then the same shall be submitted to arbitration and to the fullest extent permitted by law, be solely and finally settled by arbitration, except as specifically provided otherwise herein. The arbitration proceeding shall be held in Dallas, Texas and shall be conducted in accordance with the alternative dispute resolution rules of the American Arbitration Association (“AAA”). The arbitration proceeding shall be held before a single arbitrator unless (i) the matter in controversy exceeds Five Hundred Thousand Dollars ($500,000), (ii) the parties cannot agree on the arbitrator, or (iii) either party requests a panel of three arbitrators. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and any order of enforcement as the case may be. The arbitrator shall not award any party punitive, exemplary, multiplied or consequential damages, and each party hereby irrevocably waives any right to seek such damages in arbitration or in judicial proceedings. Each party shall bear its own costs in the arbitration and the fees and expenses of the arbitration shall be shared equally by the parties. Notwithstanding the foregoing, the arbitrator shall have the right and authority to apportion among the parties all reasonable costs, including attorney’s fees and witness fees, taking into account relative fault of the parties. The foregoing provisions of this Section 8.7 do not limit the right of a party to seek injunctive or other equitable relief from a court of competent jurisdiction pending resolution of a dispute by arbitration.
8.8 Force Majeure. The obligations of the parties under this Agreement shall be suspended to the extent that a party is hindered or prevented from complying therewith because of labor disturbances (including strikes or lockouts), war, acts of God, acts of nature, fires, storms, accidents, governmental regulations or any other cause whatsoever reasonably beyond a party’s control. For so long as such circumstances prevail, the party whose performance is delayed or hindered shall continue to use all commercially reasonable efforts to recommence performance without delay.
8.9 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
8.10 Number and Gender. Whenever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate.
8.11 Captions. The captions, headings and arrangements used in this Agreement are for convenience only and do not in any way affect, limit or amplify the provisions hereof.
8.12 Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision there shall be added automatically as part hereof a provision as similar in terms, but in any event no more restrictive than, such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
8.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original for all purposes and all of which shall be deemed collectively to be one agreement. Signatures given by facsimile or portable document format (or similar format) shall be binding and effective to the same extent as original signatures.
8.14 Third Party Beneficiaries. Nothing contained herein, express or implied, is intended to confer upon any person or entity other than the parties hereto and their respective successors in interest and permitted assigns (and the Indemnified Parties under Article 7) any rights or remedies under or by reason of this Agreement.
8.15 Entirety. This Agreement and the documents executed and delivered pursuant hereto, executed on the date hereof or in connection herewith, contain the entire agreement between the parties with respect to the matters addressed herein and supersede all prior representations, inducements, promises or agreements, oral or otherwise, which are not embodied herein or therein.