In consideration of the mutual covenants set forth in this Agreement, the parties agree as follows:
1. Independent Contractor.
(a) “Confidential Information” means information disclosed to or known by Contractor as a direct or indirect consequence of or through Contractor’s services for Carencia about Carencia or its operations, business or affairs, including, but not limited to, information regarding Patients; information protected by the Health Insurance Portability and Accountability Act of 1996; financial data regarding Carencia; procedures and services; referral sources; and any other information that is generally not available to the public regarding Carencia’s business; provided, however, that the term “Confidential Information” excludes any information that is generally available to the public other than due to a breach of this Agreement or other confidentiality agreement or obligation.
(b) “Patient(s)” means any individual: (i) to whom Services have been provided by Carencia during the Term of this Agreement, or (ii) about whom Contractor has obtained Confidential Information during the Term of this Agreement in connection with the Services.
(c) “Competitor” means any person or business enterprise (including the affiliates thereof) in the business of Carencia, which includes, but is not limited to, mental health and wellness services and medication healthcare and management.
(d) “Competitive Activities” means, directly or indirectly, performing any service for or that benefits or assists a Competitor.
(e) “Restricted Period” means during the Term of this Agreement and for twelve (12) months following termination of this Agreement, regardless of the reason for termination.
(f) “Restrictive Covenants” means the matters discussed in this Section 2.
(g) “Services” means any and all professional services within the Contractor’s scope of practice including, but not limited to mental health and wellness services including psychotherapy and medication management.
(h) “Term” means a period of one (1) year from the Effective Date, renewing for one year each year thereafter on the anniversary of the Effective Date, unless terminated by Carencia or Contractor in accordance with the terms of this Agreement.
1.2 Duties of Contractor. During the Term of this Agreement, Contractor shall function as an independent nurse practitioner for the benefit of Carencia and shall provide Services to Carencia’s Patients. Contractor shall provide these services consistent with all applicable laws in a manner consistent with the highest ethical standards. For any and all of Carencia’s Patients to whom Contractor provides services under this Agreement, Contractor agrees and acknowledges that Contractor is fully responsible for all care relating to such Patients that is within the scope of the Contractor and Carencia’s Practice. Carencia shall only have control of Contractor with respect to quality standards of the work performed and is not responsible for Contractor's:
(a) manner or method of work,
(b) business and/or travel expenses, or
(c) material, equipment or facilities,
(d) professional liability insurance
1.3 Hold Harmless. Contractor agrees to indemnify, defend, and hold harmless Carencia and its predecessors, successors, divisions, parents, affiliates, agents, assigns, attorneys, officers, directors, employees, and all persons or entities acting by, through, under or in concert with any of them from and against all losses, damages, fines, penalties, liabilities, costs and expenses, including reasonable attorneys’ fees and amounts paid in settlement, incurred by Carencia relating to or arising from (i) any negligent act or omission or willful misconduct of Contractor and (ii) any misrepresentation, breach, or nonfulfillment of this Agreement.
1.4 Independent Contractor Status. CARENCIA AND CONTRACTOR AGREE THAT CONTRACTOR SHALL PERFORM HIS DUTIES UNDER THIS AGREEMENT AS AN INDEPENDENT CONTRACTOR AND THAT THIS AGREEMENT SHALL NOT BE DEEMED TO CREATE A FRANCHISE IN LAW OR IN FACT. CONTRACTOR IS NOT AND SHALL NOT BE DEEMED AN AGENT OR EMPLOYEE OF CAREMCIA, AND CONTRACTOR SHALL NOT HAVE OR CLAIM ANY RIGHT ARISING FROM EMPLOYEE STATUS. CONTRACTOR SHALL NEITHER ACT NOR REPRESENT HIMSELF AS AN AGENT OR EMPLOYEE OF CARENCIA TO ANY PERSON OR ENTITY. CONTRACTOR HAS THE SOLE DISCRETION TO DETERMINE THE MANNER IN WHICH THE SERVICES ARE TO BE PERFORMED. CONTRACTOR SHALL NOT BE ENTITLED TO PARTICIPATE IN ANY OF CARENCIA’S INSURANCE PLANS, PENSION, STOCK, BONUS, OR PROFIT SHARING PLANS, WORKER’S COMPENSATION BENEFITS, VACATION/SICK LEAVE BENEFITS, OR ANY SIMILAR BENEFITS WHICH MAY BE PROVIDED TO EMPLOYEES, AND CONTRACTOR HEREBY EXPRESSLY WAIVES ANY SUCH ENTITLEMENT, IF SUCH ENTITLEMENT EXISTS OR IS DEEMED TO EXIST.
1.5 No Authority to Bind. Contractor shall not be entitled nor shall Contractor purport to bind Carencia or enter into any contracts or agreements with any third parties on behalf of Carencia, whether in the performance of the Services or otherwise.
1.6 Representation of Contractor. CONTRACTOR REPRESENTS AND WARRANTS THAT CONTRACTOR IS UNDER NO CONTRACTUAL OR OTHER RESTRICTION OR OBLIGATION THAT IS INCONSISTENT WITH THE OBLIGATIONS OF THE CONTRACTOR UNDER THIS AGREEMENT OR THE PERFORMANCE BY THE CONTRACTOR OF CONTRACTOR’S DUTIES OR RESPONSIBILITIES ON BEHALF OF CARENCIA.
1.7 Termination. This Agreement may be terminated by either party at any time and for any reason by the delivery to the other party of a written notice of termination stating the effective date of termination not to be less than 90 days from the date of delivery of the written notice (the “Termination Date”). Contractor agrees to have all of Contractor’s billing and patient charting completed before the Termination Date. Contractor further agrees that if Contractor fails to comply with this Section 1.7 of the Agreement, Contractor shall pay Carencia a termination fee in the amount of five thousand dollars ($5,000), which Carencia may offset and deduct from any amounts owed Contractor under this Agreement. Contractor further agrees that, in connection with any termination of this Agreement, Contractor will issue written notice to patients in compliance with Texas Administrative Code § 165.5.
1.8 Effect of Termination. Carencia shall have no further contractual or financial obligations under this Agreement to Contractor upon termination of this Agreement for any reason; provided, however, it is expressly agreed that the obligations of both parties pursuant to Sections 2 shall survive the termination of this Agreement.
1.9 Compensation. Carencia shall compensate Contractor in accordance with the provisions in Exhibit A attached to this Agreement.
2. Restrictive Covenants. As a material term and condition of Contractor’s work with Carencia, Contractor agrees to the following Restrictive Covenants (as defined below). Contractor agrees and acknowledges that the Restrictive Covenants are reasonable to protect legitimate business interests of Carencia and are material to Carencia.
2.2 Non-Disclosure of Confidential Information. In connection with his Services under this Agreement, Contractor has received and will receive Confidential Information of Carencia. Contractor shall hold in strict confidence and shall not directly or indirectly disclose, disseminate, publicize, use, copy, transfer, or make lists of any Confidential Information, other than to an authorized employee of Carencia or to a person to whom disclosure is, or use of which is, reasonably necessary or appropriate in connection with the performance of Contractors Services or is required by applicable law. If Contractor is compelled by law, subpoena, or other lawful process to disclose any Confidential Information, then Contractor shall give prompt written notice of such fact to the Carencia. Nothing in this Agreement prohibits Contractor from reporting possible violations of law or regulation to any government agency or entity, participating in an investigation by any government agency or entity, or making other disclosures that are protected under discrimination, anti-retaliation, whistleblower, or other laws or regulations.
2.3 Non-Recruitment of Personnel. During the Restricted Period, Contractor shall not, directly or indirectly, solicit, entice, persuade or induce any employee, contractor, or consultant of Carencia to terminate his or her employment or relationship with Carencia or to become employed by or perform services for any person or entity other than Carencia.
2.4 Non-Solicitation of Patients. During the Restricted Period, Contractor shall not, directly or indirectly, (i) solicit, entice, persuade, or induce any Patient to terminate, alter or limit the Patient’s relationship with Carencia or otherwise interfere with Carencia’s relations with its Patients; (ii) engage in or contribute Contractor’s knowledge to any business engaged in providing mental health and wellness services and medication management to Carencia’s Patients anywhere within a thirty (30) mile radius of Carencia’s places of business in which Contractor has rendered services for Carencia under this Agreement, or (iii) solicit business, or attempt to solicit business, in products or services competitive with products or services sold by Carencia, from any Patient anywhere within a thirty (30) mile radius of Carencia’s places of business in which Conractor has rendered services for Carencia under this Agreement.
(a) Acknowledgement. Contractor acknowledges and agrees that (i) Contractor is engaged in a highly-competitive business; (ii) the Carencia has made substantial investments to develop its business interests and goodwill and to provide access to Confidential Information to Contractor for the performance of Contractor’s duties; (iii) the success of the Carencia’s business depends upon its goodwill and reputation for quality and dependability; (iv) the limitations as to time, geographical area, and scope of activity to be restrained in Section 2.5 are reasonable and are not greater than necessary to protect the goodwill and other business interests of Carencia; and (v) the investments made by Carencia are worthy of protection and Carencia’s need for protection afforded by Section 2.5 is greater than any hardship Contractor might experience by complying with the terms thereof.
(b) Competitive Activities. During the Restricted Period, Contractor shall not, directly or indirectly, engage in Competitive Activities that are the same or substantially the same as the services Contractor performs or performed for Carencia for a Competitor anywhere within a thirty (30) mile radius of Carencia’s places of business in which Contractor has rendered services for Carencia under this Agreement.
(c) Nothing herein shall be construed to preclude Contractor from making any investment in the securities of any entity, whether or not engaged in competition with the Carencia, to the extent that such securities are actively traded on a national securities exchange or in the over-the-counter market in the United States or any foreign securities exchange and such investment does not exceed one percent (1%) of the issued and outstanding shares or other ownership interests in such entity or give Contractor the right or power to control or participate directly in the making of policy decisions of such entity.
2.6 Reformation. If a court of competent jurisdiction determines that any portion of Section 2 is invalid or unenforceable, the remainder of Section 2 shall not thereby be affected and shall be given full force and effect without regard to the invalid or unenforceable provisions. If any such court construes any of the provisions of Section 2, or any part thereof, to be unreasonable because of the scope, geography, and time restriction(s) of such provision, then the parties agree that the court shall reduce the scope, geography, and time restriction(s) of such provision and enforce such provision as so reduced.
2.7 Enforcement. Contractor agrees that a breach or threatened breach on Contractor’s part of the Restrictive Covenants will cause such damage to Carencia as will be irreparable and for that reason Contractor further agrees that Carencia shall be entitled as a matter of right to an injunction out of any court of competent jurisdiction, restraining any further violation of the Restrictive Covenants by Contractor, or by Contractor’s employer, employees, partners, or agents, or by any entity by or through which Contractor directly or indirectly is engaging in or attempting the actions which violate the Restrictive Covenants. The right to injunctive relief shall be cumulative and in addition to any and all other remedies Carencia may have, including, specifically, recovery of damages and recoupment of reasonable attorneys’ fees.
2.8 Extension for Injunctive Relief. If Contractor violates the Restrictive Covenants, any time periods set forth herein shall be tolled (i.e., extended) for the time period during which Contractor was in breach of the Agreement to ensure that Carencia is not deprived of the benefit of the full period of the Restrictive Covenants as a result of Contractor’s breach(es).
2.9 Reasonableness of Restrictive Covenants. Contractor expressly acknowledges and agrees that the Restrictive Covenants are reasonable as to scope, geography, and time. Contractor further agrees that the Restrictive Covenants shall be construed in such a manner as to be enforceable under applicable laws if a court of competent jurisdiction determines that a more limited scope, geography, or time is required.
2.10 Return of Carencia Property. All equipment, materials, records, files, notes or other documents, whether in written or electronic form, and all copies thereof, relating to Carencia or its operations, business or affairs that Contractor shall prepare, use or be provided with in connection with Contractor’s Services with Carencia, including, but not limited to Confidential Information (collectively, “Carencia Property”), shall be and shall remain the sole and exclusive property of Carencia. Contractor shall promptly return all Carencia Property in Contractor’s possession or under Contractor’s custody or control upon the termination of Contractor’s Services with Carencia or at such earlier time or times as Carencia may so request. Contractor shall not retain any Carencia Property, specifically including Confidential Information, after the termination of Contractor’s Services with Carencia.
2.11 Notice to Third Parties. Contractor expressly agrees to notify any Competitor who is a prospective employer, affiliate, business partner, principal, or agent of Contractor of the Restrictive Covenants, and authorizes Carencia to make contact with, and discuss the nature and obligations of the Restrictive Covenants with, any person or entity reasonably believed by Carencia to be engaged or about to be engaged in an act that would constitute a violation of the Restrictive Covenants. Contractor hereby waives, and releases Carencia from, any claims whatsoever arising in connection with Carencia’s contact or discussions with such person or entity.
2.12 Confidential Information of Third Parties. Contractor agrees that Contractor has not divulged, and will not divulge to Carencia, or otherwise use any trade secrets or confidential information obtained from or otherwise belonging to any third party during the course of Contractor’s Services with Carencia, unless obtained by Carencia or with the consent of the third party.
3. Additional Provisions.
3.1 Waiver of Breach. Carencia’s waiver of any breach of any provision of this Agreement by Contractor shall not operate or be constituted as a waiver of any subsequent breach by Contractor.
3.2 Successors and Assigns. The rights and obligations of Carencia under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of Carencia. Contractor may not assign this Agreement or any rights arising under it.
3.3 Governing Law and Forum Selection. This Agreement shall be governed by and construed under the laws of the State of Texas applicable to contracts to be executed and performed in the State of Texas. The parties hereby irrevocably agree to submit to the jurisdiction of the state and federal courts in the State of Texas and that any dispute arising out of this Agreement shall be litigated exclusively in Tarrant County, Texas.
3.4 Gender and Number. Whenever the context herein requires it, the gender of all words used herein include the masculine, feminine, and neuter, and the number of all words shall include the singular and plural.
3.5 Multiple Counterparts. This Agreement has been executed in a number of identical counterparts, each of which for all purposes shall be deemed an original, and all of which constitute, collectively, one agreement; but in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
3.6 Amendments. No change, modification, waiver, discharge, amendment, or addition to this Agreement shall be binding unless it is in writing and signed by Contractor and Carencia.
3.7 Entire Agreement. In addition to any offer letter between the parties, the provisions set forth herein (together with any agreements referenced herein) shall constitute the entire agreement of the undersigned parties with respect to the subject matters contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. This Agreement supersedes any prior oral or written agreements, understandings, promises, or inducements between the Parties concerning the subject matter of this Agreement. To the extent a provision herein conflicts with another applicable restriction, the provision that provides Carencia with greater protection shall apply.
3.8 Damages and Attorney’s Fees. In no event shall Carencia be liable to Contractor for any special, incidental, punitive, consequential, or other indirect damages, whether such claim is based in contract, tort, indemnity, statute, strict liability, or any other theory of law. Should any party breach any part of this Agreement, and litigation ensue, the parties agree that the prevailing party shall be entitled to its reasonable attorneys' fees and costs in prosecuting or defending its claims.
3.9 Third-Party Rights; No Partnership. Nothing in this Agreement expressed or implied is intended, or shall be construed, to confer upon or give to any person or entity, other than the parties hereto, any right or remedy under or by reason of this Agreement. Nothing in this Agreement is intended, or shall in any way be construed, so as to create any form of partnership, joint venture, or agency relationship between the parties, the parties hereby expressly disclaiming any intention of any kind to create any such partnership, joint venture, or agency relationship between themselves.
3.10 Paragraph Headings. All paragraph headings set forth in this Agreement are for purposes of identification and are intended for convenience only, and shall not control or affect the meaning, construction or effect of this Agreement or any provision hereof.
3.11 Construction. This Agreement is the result of negotiations between the parties, neither of whom has acted under any duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions hereof shall be construed in accordance with their usual and customary meanings. The parties acknowledge that they have carefully read, understood, and considered the entire Agreement prior to signing it and that they have had an opportunity to discuss the Agreement with counsel prior to execution. The parties hereby waive the application of any rule of law, which otherwise would be applicable in connection with the construction of this Agreement, that ambiguous or conflicting terms or provisions should be construed against the party who (or whose attorney) prepared the executed Agreement or any earlier draft of the same.