Thank you for your interest in consulting and consultation services by Michael D Scherer, DMD, MS. Please see the information below as general policies and conditions regarding any and all consulting and consultation services provided by Michael D Scherer, DMD, MS / Michael D Scherer, DMD, MS, INC.
1. DEFINITIONS
“Agreement” means the contract between the Client and the Consultant which defines the scope of the Engagement and the services to be rendered by the Consultant, as well as the fee schedule for said services;
“Client” means the individual, organization, or company with whom the Agreement is entered into;
“Confidential Information” means any information related to the Engagement disclosed by the Client to the Consultant and by the Consultant to the Client, respectively, either directly or indirectly. Confidential Information may include, by way of example but without limitation, products, specifications, formulas/formulae, equipment, models, employee interviews, patient records, quality monitoring schemes/programs, training materials, business strategies, customer lists, know-how, drawings, pricing information, inventions, ideas, and other information, or its potential use, that is owned by or in possession of the Client and the Consultant, respectively;
“Consultant” means Michael D Scherer DMD, MS / Michael D Scherer, DMD, MS, INC.; The user of these Terms and Conditions;
“Engagement” means any agreement, in whatever form, reached between the Consultant and the Client pursuant to which the Consultant agrees to render services to the Client in exchange for a fee plus costs;
“Force Majeure” means any cause beyond the reasonable control of the affected party, including, but not limited to, any act of God, war, riots, acts of the public enemy, fires, strikes, labor disputes, accidents, or any act in consequence of compliance with any order of any government or governmental authority;
“Patient” means the person treated by Client within his/her respective practice and/or scope of practice;
“Project” means the services to be provided by the Consultant to the Client as specified;
2. GENERAL TERMS AND CONDITIONS
These General Terms and Conditions govern the provision of all services from or on behalf of the Consultant to the Client and apply to all legal relationships between the Consultant and the Client.
These General Terms and Conditions supersede any and all prior oral and written quotations, communications, agreements and understandings of the parties and shall apply in preference to and supersede any and all terms and conditions of any order placed by the Client and any other terms and conditions submitted by the Client. Failure of the Consultant to object to terms and conditions set by the Client shall in no event be construed as an acceptance of any terms and conditions of the Client. Neither the Consultant’s commencement of performance nor the Consultant’s delivery of services shall be deemed or constituted as acceptance of any of the
Client’s terms and conditions. Any communication or conduct of the Client which confirms an agreement for the provision of services by the Consultant, as well as acceptance by the Client of any provision of services from the Consultant shall constitute an unqualified acceptance by the Client of these General Terms and Conditions.
3. PERFORMANCE OF THE PROJECT
Consultant’s delivery of services shall be deemed or constituted as acceptance of any of the Client’s terms and conditions. Any communication or conduct of the Client which confirms an agreement for the provision of services by the Consultant, as well as acceptance by the Client of any provision of services from the Consultant shall constitute an unqualified acceptance by the Client of these General Terms and Conditions. The Consultant shall determine the manner in which and the person by whom the Engagement will be carried out, taking into account, as far as is feasible, the reasonable requests expressed by the Client.
The Consultant shall complete the Project with reasonable skill, care, and diligence in accordance with the Agreement.
The Client hereby accepts that the time schedule allocated for the performance of an Engagement may be subject to change in case of amendment to the Engagement and/or the services to be provided thereunder after conclusion of the Engagement. In case of any change of circumstances under which the Engagement is to be performed which cannot be attributed to the Consultant, the Consultant may make any such amendments to the Engagement as it deems necessary to adhere to the agreed quality standard and specifications. Any costs arising from or related to this change of circumstances will be fully borne by the client.
The Consultant may, at its discretion and, where possible, in consultation with the Client, replace the person or persons charged with performing the Engagement, if and in so far as the Consultant believes that such replacement would benefit the performance of the Engagement. The Consultant shall provide the Client with such reports of his work on the Project at such intervals and in such form as the Client may from time to time require. The Client has the right to notify the Consultant that it wishes to modify its requirements in relation to the Project. Such modifications shall not enter into effect until the parties have agreed on the consequences thereof such as to the Agreement fee and the completion date of the Project.
4. SUBCONTRACTORS
The Consultant shall be free to involve Subcontractors, availing of specific expertise, in the performance of the Project, provided that the Consultant shall have these third parties enter into confidentiality obligations similar to the confidentiality obligations applicable to the Consultant. If requested by the Client, the Consultant shall identify these Subcontractors, specifying in each case their specific expertise.
5. CLIENT’S OBLIGATION
The Client shall at all times duly make available to the Consultant all information and documents that the Consultant deems necessary to be able to carry out the Engagement correctly, in the specified form and manner. Also, the Client shall provide all cooperation required for the proper and timely performance of the Engagement.
The Client guarantees that Consultant’s employees can at all times work under safe conditions, in accordance with the relevant health and safety regulations and environmental rules, and shall indemnify and hold harmless the Consultant against all loss, expense or damage arising from or relating to this guaranty by the Client. The Client shall duly inform the Consultant of any facts and circumstances that may be relevant in connection with the execution of the Engagement. furthermore, the Client shall guarantee the correctness, completeness and reliability of any information provided to the Consultant.
6. FEES AND EXPENSES
The Client shall pay to the Consultant fees at the rate specified in the Agreement.
Unless otherwise stated in the Agreement, payment will be made within thirty (30) days of receipt of an invoice for work completed.
Any extra costs arising from or related to any delays in the completion of the Engagement stemming from the failure of the Client to duly make available to the Consultant the requested information and documentation, shall be fully borne by the Client upon written and/or verbal approval.
7. INTELLECTUAL PROPERTY
Any and all reports, photographs, images, videos, patient information, designed files, radiographic images, or other documents and materials provided by and/or utilized by Consultant shall remain the property of the Consultant unless specified otherwise.
8. CONFIDENTIALITY, PATIENT INFORMATION
The Consultant shall keep secret and not disclose and shall procure that his employees keep secret and not disclose any Confidential Information obtained by him during the performance of the Project. The foregoing shall not apply to information which (i) is or becomes part of the public domain without fault on the part of the Consultant; (ii) was already known by the Consultant, other than under an obligation of confidentiality, at the time of disclosure by the Client; (iii) is lawfully acquired by the Consultant from a third party on a non-confidential basis; or (iv) the Consultant is required to disclose pursuant to any law, lawful governmental, quasi-governmental or judicial order.
Client agrees to follow Health Insurance Portability and Accountability Act (HIPAA) guidelines when required and will protect privacy of the Patient whenever possible. The Client agrees that they will protect and secure the privacy and confidentiality of patient information and will comply with HIPAA.
Except with the prior written permission of the Consultant, the Client shall not publish or otherwise make available the contents of proposals, reports, presentations, memos, or other communications by the Consultant, unless these have been provided with the intention of providing third parties with the information set out therein. Furthermore, the Client shall not disclose any of the Consultant’s methods and work strategies without the Consultant’s written permission.
The provisions of this Article 8 shall apply during the term of the Agreement and for a period of twelve (12) months thereafter.
9. LIABILITY, INDEMNIFICATION, WARRANTY
The Client is solely responsible for any and all clinical outcomes with any and all treatment performed on any Patient as a result of any and all information obtained, or recommendations made from/by Consultant during the Project.
The Consultant, nor any person put forward by the Consultant to perform the Project, shall not be responsible for any loss, destruction or damage of whatsoever nature (including injury or death) incurred by the Client, its employees or third parties, resulting from the use of the Project results by the Client. The Client shall indemnify the Consultant accordingly.
The Consultant, and any person put forward by the Consultant to perform the Project, shall not be liable if the services provided or the results generated by him in the Project, nor does the Consultant, or any person put forward by the Consultant to perform the Project, warrant, either expressed or implied, that the performance by him of the Project will not infringe upon intellectual property rights of any third party.
Should a party be deemed liable to the other party, by way of indemnity or by reason of breach of contract or otherwise, the Consultant’s liability shall in aggregate not exceed the fee for the Project.
10. TERM AND TERMINATION
Any times or dates set forth in the Agreement for provision or completion by the Consultant of the services under the Project are estimates only and shall never be considered of the essence. Furthermore, the parties hereby acknowledge that the time schedule set out for the performance of the Engagement may change during the course of said performance. In no event shall the Consultant be liable for any delay in providing these services.
Either party may terminate the Agreement by notice in writing forthwith in the event the other party:
(i) is in default with respect to any material term or condition to be undertaken by it in accordance with the Engagement and / or the provisions of the Agreement, and such default continues unremedied for a period of thirty (30) days after written notice thereof by the aggrieved party to the defaulting party;
(ii) is affected by a Force Majeure which cannot be removed, overcome or abated within three (3) months; or
(iii) shall make any assignment for the benefit of creditors or shall file any petition in connection thereto, shall file a voluntary petition in bankruptcy, be adjudicated bankrupt or insolvent, if any receiver is appointed for its business or property, or if any trustee in bankruptcy or insolvency shall be appointed for that party (and is not dismissed within sixty (60) days after appointment).
If the Client issues a termination notice, the Client shall be obliged to pay the Consultant a compensation equal to the agreed fees apportioned to the services already rendered by the Consultant, plus any additional costs incurred by the Consultant as a result of said early termination.
In case the Consultant cannot be reasonably expected to complete the works due to unforeseen circumstances, the Consultant may unilaterally terminate the Agreement and the Engagement. The Client shall be liable for payment of an amount corresponding to the fees due for services already performed, while being entitled to receive the (preliminary) results of the services already performed, without the Client being entitled to derive any rights therefrom.
11. INDEPENDANCY
The Consultant shall perform the Agreement as an independent contractor and shall not be the servant or agent of the Client. It is mutually understood and agreed that Provider is at all times acting and performing these duties and functions in the capacity of an independent contractor.
12. OBSERVANCE OF LEGAL REQUIREMENTS, LICENSURE, AND LIABILITY INSURANCE
The Consultant shall carry out his obligations under the Agreement in a manner that conforms to relevant legal requirements.
The Client shall maintain all applicable licenses and certification requirements, meet all requirements of their local/regional/national or other regulatory entity for such licensing, certification or credentialing. Client agrees to comply with all federal and state laws or regulations applicable to the services to be provided under this Agreement.
The Client agrees that any and all treatment performed by Client is at Client’s judgment and falls under their own local/regional/national laws and regulations guidelines. Client indemnifies Consultant against any and all claims related to professional liability and/or malpractice, local/state/national board actions, and any other medico-legal claims.
13. NOTICES
Any notice given under or pursuant to the Agreement shall be given in writing and shall be given by mail, registered mail, electronic mail, direct messaging, or by facsimile transmission to the other party, or to such other address as a party may by notice to the other have substituted therefore.
14. ENTIRE AGREEMENT/AMENDMENTS
Entire Agreement/Amendments. This Agreement reflects the only, sole and entire agreement between the parties relating in any way to the subject matter hereof. No statement, promise or different representations have been made which in any way form a part of or modify this Agreement. No amendment or modification of the terms or conditions of this Agreement shall be valid unless in writing and signed by the parties hereto.
15. ARBITRATION OF DISPUTES
Arbitration of Disputes. All claims for monetary damages between the parties to this Agreement shall be resolved by binding arbitration under the commercial rules of JAMS in Soulsbyville, California. Such arbitration shall be conducted in Modesto, California, before a single arbitrator selected through the usual and customary procedures of JAMS.
- Any demand for arbitration shall be in writing and must be made within the time required by applicable law.
- The arbitrator shall be a former or retired judge or attorney with at least ten years of experience.
- At the election of either party, the arbitration proceedings may be transcribed by a court reporter at the expense of the electing party and a written transcript may be provided to the arbitrator.
- The arbitrator shall be requested to make factual findings and render a statement of decision, explaining the legal and factual basis for the award.
- Final decisions by the arbitrator shall be rendered within ninety days from the date the arbitration hearings are completed.
- The prevailing party shall be entitled to an award by the arbitrator of costs reasonably incurred in connection with the arbitration, including witness fees and expert witness fees, unless the arbitrator for good cause determines otherwise. Each party shall be responsible for its own attorneys’ fees.
- Costs and fees of the arbitrator shall be borne equally between the parties initially, but the arbitrator shall be requested to order restitution of such costs and fees by the non-prevailing party, unless the arbitrator for good cause determines otherwise.
- The award or decision of the arbitrator shall be final, and binding, and may be entered as a judgment in any court of competent jurisdiction, in accordance with applicable law.
- The provisions of Title 9 of Part 3 of the California Code of Civil Procedure, including section 1283.05, and successor statutes, permitting expanded discovery before the arbitration hearing, shall be applicable to all disputes which are arbitrated pursuant to this Agreement, provided, however, that the discovery limits in California Code of Civil Procedure section 94 shall be deemed applicable, to limit the scope and extent of such discovery.