THIS ENGAGEMENT AGREEMENT, along with the Terms and Conditions attached hereto and made a part hereof (together, the “Agreement”), is by and between you hereafter known as the “Client” and TheraClosure, LLC (“TheraClosure”), located at 4400 East West Highway, Suite G, Bethesda, MD 20814, effective as of today.
BY CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, THE CLIENT AGREES TO AND BECOMES A PARTY TO THIS AGREEMENT. IF AN INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF THE CLIENT, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND THE CLIENT IDENTIFIED IN THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS OR CONDITIONS OF THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT.
The Client hereby engages TheraClosure to provide specific services specified below, which depend on the plan selected by the Client during the consultation meeting, and pursuant to the terms set forth below. In particular the client can choose either Retirement Retainer Plan, i.e., the appointment of TheraClosure as the designated Practice Executor remaining on retainer until such time the Client faces an “Incident., or Retirement Executor Plan, i.e., immediate assumption of the role of “Practice Executor” in order to take custody of all clinical or medical records of the Client’s psychotherapy practice (the “Practice”). The term “Services” shall include all services specified hereunder.
You may choose between two coverage plans:
The Client keeps custody of and responsibility for their own records during retirement. TheraClosure is on retainer to assume the role of Practice Executor and to take custody of electronic* records in the event of the Client’s incapacitation or death during the retention period.
2.1.1 At this time, Year 1 fee ($450) plus the set-up fee ($200) is due in order to schedule a one-hour Consultation session with a TheraClosure clinician to discuss details of the Client’s practice and retirement/ record retention needs, and to create a ProfessionalWill.
2.1.2 The Professional Will names TheraClosure as the Practice Executor who will assume this role only in the event the Client’s Personal Representative informs TheraClosure of the Client’s incapacitation or death during the period of enrollment. The Client will provide all necessary documentation regarding their Practice which would enable TheraClosure to function as Practice Executor upon receiving notification of Client’s incapacitation or death.
2.1.3 Instructions in the Professional Will direct TheraClosure to access the Client’s patients’ medical records to take custody of them at that time, to notify patients of the transferring of records as required by law, and may contain instructions regarding administrative practice matters for which TheraClosure agrees to accept responsibility (which may require an additional fee).
2.1.4 The yearly fee of $450 will be auto-renewed on the anniversary of enrollment for each year of the retention period. If the Client elects not to renew services and/or Client fails to pay the yearly fee, TheraClosure’s designation as future Practice Executor will be terminated as of the end of such fully paid year.
2.1.5 The Client’s Personal Representative has accepted responsibility for notifying TheraClosure, in the event of the Client’s incapacitation or death. TheraClosure assumes responsibility upon receiving notice from Client’s Personal Representative. No further costs are billed to the estate by TheraClosure unless otherwise agreed to in writing.
2.1.6 The Client understands that TheraClosure will not take custody of paper records, but that TheraClosure will provide limited assistance to the Personal Representative or other Identified Individual by offering directions regarding those files. TheraClosure is not able to accept custodianship or responsibility for the confidentiality or security of any medical records remaining in paper form. TheraClosure will collaborate with Personal Representative or Identified Individual to have those files picked up by a medical record scanning company which will digitize those records and then destroy the paper files in compliance with HIPAA standards. All costs of the medical scanning company will be the responsibility of the Client’s Estate. TheraClosure accepts responsibility for the storage of those digitized records upon the Client’s death/disability at no additional cost.
OR
TheraClosure immediately assumes the role of Practice Executor effective upon the execution of the Practice Executor Agreement, taking responsibility for immediate custody of electronic* medical records, responding to patient requests to transfer medical records, and responding to patient requests for assistance with referrals. This cost is: $450 for each year of retention required by state regulations (up to 7 years), plus a $200 set-up fee. If records must be retained beyond 7 years, (ie, per state regulations for minors or for Medicare patients), an additional flat fee of $500 is charged (irrespective of required years of retention).
2.2.1 At this time, Year 1 fee ($450) plus the set-up fee ($200) is due in order to schedule a one-hour Consultation session with a TheraClosure clinician to discuss details of the Client’s practice and retirement/ record retention needs, and to create a Practice Executor Agreement.
2.2.2 The Practice Executor Agreement will appoint TheraClosure to assume the duties of the Practice Executor immediately and will outline how the Client’s electronic records* will be transferred to TheraClosure’s custody. If the Client wishes for TheraClosure to notify former patients of the Client’s death at such a time, or if there are administrative practice matters which TheraClosure accepts responsibility for terminating, the Client’s instructions will be documented in the Practice Executor Agreement.
2.2.3 The balance of the Retirement Executor Plan is due at the time of plan selection, i.e., upon completion of the Consultation Meeting.
All payments are non-refundable.
3.1 For Retirement Retainer Plan, the Retirement Engagement Agreement is in effect for 1 year from date of payment and initial signature. The Client understands that the timing of the completion of TheraClosure documents needed to create the Practice Executor Agreement depends entirely on the Client. The designation of TheraClosure as the Practice Executor only occurs, and TheraClosure's duty as Practice Executor only begins, if the Client suffers an “Incident” during this covered time period.
To keep TheraClosure on retainer, the Agreement must be renewed yearly by paying the yearly fee no later than the anniversary of the Retirement Engagement Agreement. The Client understands that if he/she fails to renew the Coverage by submitting payment for the yearly fee, this Agreement will be terminated, and TheraClosure will no longer be on retainer to provide the Services and to serve as Practice Executor in the event of an Incident, even if the Client has not made alternate arrangements at that time. In event of the Client’s failure to renew (or the Client wished to terminate services with TheraClosure as permitted hereunder), the Client will be given 90 days in which it may extract any information already stored in their TheraClosure Client portal, though new information may not be added. After 90 days or sooner if the Client notifies TheraClosure in writing of their wishes, TheraClosure will delete stored practice information, including passwords and access information. The Client understands that TheraClosure will have no responsibility for data which is stored with integrated service partners, i.e. electronic health record systems.
3.2 For Retirement Executor Plan, this Retirement Engagement Agreement is in effect for the full record retention period of the Client’s jurisdiction upon payment of such fee.
The Personal Representative shall notify TheraClosure of an “Incident,” which is defined as death or disability which will include an illness, accident, injury, or disappearance such that the Client is physically or mentally unable to fulfill the remaining professional duties of his/her Practice, such as record retention, access and transfer of records, and provision of referrals. An Incident will not include a physical condition in which the Client retains adequate mental faculties and physical capabilities to fulfill such duties as named above. Absent an Incident, a Client electing Retirement Retainer Plan understands he/she will continue to arrange for such coverage for their Practice even when otherwise unavailable to fulfill their record retention obligations.
For Clients electing Retirement Retainer Plan, upon the Personal Representative informing TheraClosure of an Incident, TheraClosure shall serve as the custodian of the patient records in compliance with the “Business Associate Agreement” by and between TheraClosure and the Client., The Client understands he/she is responsible for the following:
Upon the initiation of Retirement Executor Plan, TheraClosure shall serve as the custodian of the patient records in compliance with the “Business Associate Agreement” by and between TheraClosure and Client which shall be executed upon the completion of the Practice Executor Agreement.
7. NO ASSUMPTION OF LIABILITIES. TheraClosure does not assume responsibility for any deliverables owed by the Client’s Practice. Any debt will be forwarded to the Estate or Personal Representative.
(a) These terms and conditions (these "Terms") and the Engagement Agreement are the only terms that govern the provision of services ("Services") by TheraClosure, LLC (“TheraClosure”) to the Client named on the Agreement ("Client").
(b) The accompanying TheraClosure Engagement Agreement (the "Engagement Agreement") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Client's general terms and conditions of purchase regardless of whether or when Client has submitted its purchase order or such terms. Fulfillment of Client's order does not constitute acceptance of any of Client's terms and conditions and does not serve to modify or amend these Terms.
(c) Notwithstanding anything to the contrary contained in this Agreement, TheraClosure may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees set forth in the Engagement Agreement.
(a) Cooperation. With respect to the Services, Client shall (i) cooperate with TheraClosure in all matters relating to the Services and provide such access to Client's data, files and software and other records as may reasonably be requested by TheraClosure, for the purposes of performing the Services; (ii) respond promptly to any TheraClosure request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for TheraClosure to perform Services in accordance with the requirements of this Agreement; (iii) provide such materials or information as TheraClosure may request to carry out the Services in a timely manner and ensure that such patient materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents. In order to provide requisite services following an Incident, the estate or personal representative of the Client shall notify TheraClosure of the Incident and execute an acknowledgment with TheraClosure to reaffirm the terms and conditions set forth herein.
(b) Clinical Services. TheraClosure agrees and acknowledges that the Client shall provide, and shall be responsible for providing, all clinical services for the Practice conducted by the Practice and that the Services provided by the Company hereunder shall be limited only to the business, management, and non-clinical services as further described in this Agreement.
(c) Relationship of the Parties. TheraClosure and Client are not joint venturers, partners, employees or agents of each other and, except as provided herein, neither party shall have any authority to bind the other party. No partnership of any kind is intended to be created pursuant to this Agreement or the provision of the Services by TheraClosure.
(d) Regulatory Compliance. Client shall conduct the Practice at all times in compliance with all applicable federal, state and local laws, rules, regulations and ordinances, including, without limitation, with respect to the licensing, credentialing and certification of its professional service providers.
If TheraClosure's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, TheraClosure shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
(a) Client shall purchase the Services from TheraClosure at the prices (the "Prices") set forth in the Engagement Agreement.
(b) Client agrees to reimburse TheraClosure for all out-of-pocket expenses incurred by TheraClosure in connection with the performance of the Services.
(a) As applicable, Client shall pay all invoiced amounts due to TheraClosure on receipt of TheraClosure's invoice. Client shall make all payments hereunder by wire transfer/check and in US dollars.
(b) Client shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall reimburse TheraClosure for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which TheraClosure does not waive by the exercise of any rights hereunder), TheraClosure shall be entitled to suspend the performance of any Services if Client fails to pay any amounts when due hereunder.
(c) Client shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with TheraClosure, whether relating to TheraClosure's breach, bankruptcy, or otherwise.
(a) TheraClosure warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
(b) EXCEPT FOR THE SERVICE WARRANTIES SET FORTH HEREIN, THERACLOSURE MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED. THERACLOSURE PROVIDES THE SERVICES “AS IS”, WITHOUT WARRANTY OF ANY KIND. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THERACLOSURE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED.
(c) THERACLOSURE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(a) IN NO EVENT SHALL THERACLOSURE BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THERACLOSURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL THERACLOSURE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE ANNUAL AMOUNT PAID TO THERACLOSURE FOR THE MOST RECENT YEAR.
TheraClosure and Client agree that the Client is a “covered entity” and TheraClosure is a “business associate” as such phrases are defined by the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act (“HIPAA”) and that, in the performance of Services hereunder, TheraClosure will have access to the Client’s patients’ “protected health information,” as such phrase is defined by HIPAA. The parties, therefore, agree to execute a Business Associate Agreement in the form set forth on Exhibit “A,” which is attached hereto and incorporated by reference. TheraClosure agrees to perform its Services involving any “protected health information” in accordance with such Business Associate Agreement.
Client shall comply with all applicable laws, regulations, and ordinances. Client shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
In addition to any remedies that may be provided under these Terms, TheraClosure may terminate this Agreement with immediate effect upon written notice to Client, if Client: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
No waiver by TheraClosure of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by TheraClosure. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
All non-public, confidential or proprietary information of TheraClosure, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by TheraClosure to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by TheraClosure in writing. Upon TheraClosure's request, Client shall promptly return all documents and other materials received from TheraClosure. TheraClosure shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party.
No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to TheraClosure hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) telecommunication breakdowns, power outages or shortages; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within twenty (20) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of ninety (90) consecutive days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon written notice.
Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of TheraClosure. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Maryland without giving effect to any choice or conflict of law provision or rule (whether of the State of Maryland or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Maryland.
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Maryland, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Engagement Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.