Whereas, Student desires to retain Preceptor to furnish Services;
Now, Therefore in consideration of the foregoing and of the promises and covenants hereinafter set forth, the parties agree as follows:
1. Term. This Agreement shall begin on the Commencement Date and shall continue for no longer than four (4) months (the “Term”). In the event, this Agreement expires, but both parties continue to perform and comply with the terms of the Agreement, as if it were still in full force and effect, the Agreement shall be considered to have renewed and shall remain in place and in full force and effect for another thirty (30) days.
2. Engagement to Provide Services. Student hereby engages Preceptor to perform professional and academic training as described in this Paragraph, elsewhere in the Agreement, and as further detailed in Exhibit “A” (collectively, the “Services”).
2.1 Professional Standards. Preceptor shall perform his or her duties and responsibilities hereunder with a level of competence that is (i) recognized as acceptable in the Community, and (ii) in accordance with the standards of his or her specialty board.
3 Preceptor Covenants and Agreements. Preceptor has entered into this Agreement in reliance on the representations and warranties made by Student to Preceptor in this Section 3 as being true and accurate at the time Provider entered into this Agreement and at all times throughout the Term. Provider shall be bound by and at all times meet the minimum qualifications and standards described in this Paragraph 3 as a prerequisite to the provision of Services and receipt of compensation under the terms of this Agreement:
3.1 Preceptor represents and warrants that he or she is in good standing in the State and authorized to provide professional nursing services in the State as a licensed nurse practitioner, and is in good standing with the Texas Board of Nursing;
3.2 Preceptor has full and complete power and authority to enter into this Agreement, and Provider is not subject to any oral or written agreement, restriction, or covenant not to compete (regardless of whether Provider views such restriction, agreement or covenant as enforceable) which could potentially impact Preceptor’s right to enter into this Agreement and/or provide a full scope of Services at facilities where Preceptor may assign Student. Provider represents and warrants that he or she is eligible to provide the Services in question and is not under limitation of the type and nature described in this Section 3;
3.3 Preceptor (i) holds and maintains a valid and unrestricted licensed to practice nursing in the State; (ii) is board certified or “board eligible” in the Specialty; and (iii) has a valid and unrestricted registration from both the federal and State governments to prescribe dangerous drugs and controlled substances;
3.4 Provider is not now, nor has ever been, a defendant in a nursing or medical negligence lawsuit other than as fully disclosed in writing to Student prior to the Commencement Date;
3.5 Preceptor has never involuntarily had his or her nursing license or any clinical privilege limited, reduced, restricted, suspended or terminated, nor has Preceptor surrendered a nursing license or clinical privilege except as disclosed in writing to Student prior to the Commencement Date;
3.6 Preceptor holds full authority to prescribe dangerous drugs and controlled substances, and has never had his or her authority to prescribe limited, suspended or terminated in any way;
3.7 Preceptor has never been convicted of a felony, a crime of moral turpitude, or a violation of any healthcare law, regulation, agency or administrative rule, nor has Provider ever accepted a deferred sentence for or pled guilty or no-contest to any accusation of having committed a felony, crime of moral turpitude, or a violation of any healthcare law, regulation, agency or administrative rule;
3.8 Preceptor is fully capable, both physically and mentally, of carrying out the obligations of this Agreement;
3.9 Preceptor is legally authorized to work in the United States in the capacity indicated under this Agreement; and
3.10 Preceptor has reviewed the obligations imposed upon Provider in this Agreement and agrees to be bound by such terms and conditions.
4 Compensation. In consideration of the performance of the duties and obligations described in this Agreement, Student shall compensate Preceptor as described in Exhibit “B” of this Agreement. The parties acknowledge and represent that the compensation terms reflected in Exhibit “B” were negotiated at arms’ length, are fair market value, and are not determined in a manner that takes into account the volume or value of any referrals or other business generated between the parties.
5 Insurance and Indemnification.
5.1 Preceptor Insurance. Provider shall keep and maintain professional liability insurance coverage for himself or herself with such insurance companies issued upon such forms and containing such terms and limitations reasonably acceptable. At a minimum, such insurance shall provide coverage in the amount of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the aggregate. If such insurance is maintained on a claims-made basis, such insurance shall continue throughout the Term of this Agreement; and upon the termination of this Agreement, or the expiration or cancellation of the insurance, Provider shall (i) purchase, or arrange for the purchase of "Prior Acts" coverage from the new insurer with a retroactive date on or prior to the date Preceptor began performing services with Student.
5.2 Student Insurance. During the term of this Agreement, Student shall keep and maintain, at its sole cost and expense, professional and general liability coverage for the acts and omissions of Student, at minimum, equivalent to Preceptor policy.
5.3 Indemnification. Each party specifically reserves any common law right of indemnity and/or contribution which either party may have against the other. Each Party to this Agreement agrees to indemnify and hold harmless the other party and its directors, officers, employees and agents against any and all liability and expense, including defense costs and legal fees as they are incurred in connection with claims or demands for damages of any nature whatsoever including, but not limited to, bodily injury, death, personal injury or property damage arising from or caused by the indemnifying party’s acts or failure to act or the acts or failure to act of its directors, officers, employees or agents. otherwise provided in this agreement.
6 Termination.
6.1 In the event that both parties are not satisfied with the outcome, or cannot reach an agreed-upon course of action, then either party has the option of ending the contract with a written 30 day notice due to inability to resolve contractual conflicts.
6.2 Immediate Termination Prior to Expiration of Term. In addition to the termination provisions set forth in other sections of this Agreement, the parties understand and agree that this Agreement shall immediately terminate upon the occurrence of any of the following:
6.2.1 Preceptor or Student fails to meet any minimum requirements applicable to Preceptor under the State or Federal law, or fails to meet the qualifications or representations contained in this Agreement, including, without limitation, Provider’s suffering any suspension, revocation, restriction, or other exclusion from participation in any federal or state health care program;
6.2.2 Any of the Covenants and Agreements in Section 3 ceases to be true and accurate;
6.2.3 Preceptor fails to disclose any material change to the representations, warranties and other obligations imposed by Section 3 and its subparagraphs (Provider Covenants and Agreements);
6.2.4 Preceptor becomes ineligible for liability insurance;
6.2.5 Student fails to comply with any of its payment obligations to provider under this agreement.
6.3 In the event either party materially breaches this Agreement, or materially breaches any law, regulation, standard, policy or procedure applicable to such party, the non-breaching party may terminate this Agreement, in its discretion, if the breach is not reasonably susceptible to cure, and/or if the breaching party has not cured the alleged breach to the non-breaching party’s reasonable satisfaction by the tenth (10th) day following the non-breaching party’s issuance of a written “Notice of Breach.” Material breaches shall include, but not be limited to, the following:
6.3.1 Preceptor is unable to perform the Services;
6.3.2 Any other material breach of the obligations, warranties, or terms and conditions of this Agreement, Students policies and procedures, or the standards of acceptable professional conduct and/or Services in the community.
6.4 Termination or Modification for Legal or Regulatory Purposes. In the event of any of the following, either party may give to the other party notice of intent to amend this Agreement in order to: (i) accommodate the terms and intent of this Agreement to the greatest extent possible consistent with the requirements of law; (ii) achieve the least burdensome alternative for the parties which brings this Agreement into compliance with law; and (iii) render this Agreement in compliance with law and alleviate a material adverse legal or financial consequence. If this Agreement is not so amended in writing within thirty (30) business days after said notice is given, this Agreement shall terminate as of midnight of the thirtieth (30th) business day after said notice is given. The triggering events are:
6.4.1 A provision of law invalidates or otherwise is inconsistent with the terms of this Agreement;
6.4.2 A provision of law would cause one or both of the parties to be in violation of law;
6.4.3 A provision of this Agreement is ruled by a court or other tribunal of competent jurisdiction to be in violation of law; or
6.4.4 In the opinion of a reputable attorney who is demonstrably familiar with health care law and is otherwise qualified and mutually agreed upon by the parties, any federal, state, or local government or agency passes, issues, or promulgates any law, rule, regulation, standard, or interpretation that would render this Agreement illegal, or that could cause significant and material adverse legal and/or financial consequences for any party hereto (including any such action that would adversely affect a party’s tax-exempt status or its present or future tax-exempt financings).
6.5 Post Termination. Except as otherwise provided elsewhere in this Agreement, the following provisions govern the parties’ relationship after termination:
6.5.1 Services shall cease, and Student shall have no further obligation or liability hereunder to pay or provide compensation for any Services provided after the date of termination, except as otherwise provided in the agreement.
6.5.2 Nothing in the foregoing or elsewhere in this Agreement shall be construed to limit any remedies which Student may have upon a breach of or default under this Agreement by Provider, or which Provider may have upon a breach of or default under this Agreement by Student.
7 General Provisions.
7.1 Survival. The parties each agree that the following Sections of this Agreement shall continue in full force and effect, extending rights and obligations beyond the termination of the Agreement: Section 5 (with respect to post-Term billing for Services that were provided before Termination); Section 6.3 (Indemnification); Section 8 (Confidentiality); Section 9.5 (Post-Termination); Section 10.2 (Survival); Section 10.3 (Further Assurances); Section 10.4 (Restrictions on Disclosure of Agreement); Section 10.5 (Non-Disparagement); and Section 10.9 (Notices).
7.2 Further Assurances. The parties each agree to cooperate fully with the other party to take such further action and execute such other documents or instruments as necessary or appropriate to implement this Agreement.
7.3 Restrictions on Disclosure of Agreement Terms. The parties agree the terms and contents of this Agreement are confidential and that they will not reveal any of the terms hereof, either in whole or in part, to any person or entity except affiliates unless (i) prior approval, in writing, is granted; (ii) as is necessary for use by accountants, legal counsel, financial advisors and representatives of Provider and Student; (iii) compelled by process of law or required under governmental regulation; or (iv) the material becomes a matter of public record because disclosure is required or made through no fault on the part of Student or Preceptor.
7.4 Non-Disparagement. Neither party shall make (or cause to be made) any disparaging, derogatory or false statements, or issue any press release regarding other party, its affiliates or staff, or any matter related to or arising from this Agreement.
7.5 Governing Law. This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed by and construed in accordance with the laws of the State, notwithstanding any conflict-of-laws doctrine to the contrary, and without the aid of any custom or rule of law requiring construction against the draftsman.
7.6 Entire Agreement. This Agreement contains the entire understanding between parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, inducements, or conditions, express or implied, oral or written, except as herein contained. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof.
7.7 Amendment. This Agreement may be changed, modified, or amended only by agreement of both of the parties.
7.8 Notices. All notices and other communications to be given hereunder shall be given in writing and shall be delivered personally or mailed by registered or certified mail, postage prepaid, return receipt requested, to the address listed below or such other address as may be designated in writing hereafter by a party. Notice shall be deemed to have been duly given on the date of delivery if delivered personally to the party to whom notice is to be given, or as of the date indicated on the return receipt or, if such notice is refused, on the date when delivery of such notice is first refused.