INDEPENDENT CONTRACTOR AGREEMENT

INDEPENDENT CONTRACTOR AGREEMENT

BETWEEN

ATLAS BEHAVIOR AGENCY (THE “COMPANY”)

AND

______________________________ (THE “CONTRACTOR”)

__________________________________________________________________________

THIS AGREEMENT is made on the …………..day of………….20……., (hereinafter, “Effective Date”) entered into by the Company and the Contractor (Company and Contractor collectively referred to as the “Parties” or individually as the “Party”) and includes that Party’s successors and assigns.

In consideration of covenants and agreements contained in this agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, Parties agree to the following terms and conditions and to be bound thereby:

1. 1.      COMMENCEMENT AND DURATION

This agreement shall be valid from the Effective Date until termination.

• SERVICES

The Company is in the business of providing behavioral and therapeutic health care services, and the Contractor shall provide professional services to the Company’s clients as behavioral consultant, recreational therapist, and music therapist. The Contractor shall perform the services to the best of their ability and according to applicable laws, rules, regulations, ethical and industry standards. This includes but is not limited to: the Indiana Administrative Code 460 (e.g. 460 IAC 6 et seq.., that provides for certain standards and requirements), preservation of required records and reports, confidentiality of client information, and maintenance of a valid license (s) and certification (s).

• AUTONOMY

Except as otherwise provided in this agreement; the Contractor will have full control over working time, methods, and decision-making in relation to the provision of the services per the agreement. The Contractor will work autonomously and not at the direction of the Company. However, the Contractor will be responsive to the reasonable needs and concerns of the Company. The Contractor may contract work either on their behalf or on behalf of any other person as long as that work does not violate the terms of this agreement including but not limited to the confidentiality and restrictive agreements.

• EQUIPMENT

Except as otherwise provided in this agreement, the Contractor will provide any equipment or resources necessary to deliver the services per the agreement at the Contractor’s own expense.

• CONTRACT SUM

For the services rendered, the Company will pay the Contractor $_______ per hour session payable on the 15^th of each month following the month in which the services were performed subject to the Contractor having submitted all the required billing information to the Company in time. The Contractor shall bear all the expenses incurred when performing the services and no expense shall be paid by the Company unless pre-agreed to in writing.

• INSURANCE/WORKERS COMPENSATION

The Contractor shall have in effect during the entire life of this Agreement all necessary and applicable general liability, public liability, personal injury and property damage insurance coverage in sufficient amounts to cover any and all potential claims and damages that may arise in the performance of their duties. The Contractor shall also carry and maintain workers compensation insurance to cover them during the term of the agreement.

• PROFESSIONAL LAIBILITY INSURANCE AND INDEMNIFICATION

Contractor represents and acknowledges that at all times during the term of this Agreement, he/she is and shall be a registered and/or certified consultant and/or therapist in good standing in the State of Indiana and is otherwise able to competently perform the Services contemplated under this Agreement. During the term of this Agreement, Contractor shall procure and maintain professional liability insurance including any insurance otherwise required under Indiana State law, including Section 460 of the Indiana Administrative Code, as amended from time to time. Contractor shall provide ATLAS BEHAVIOR AGENCY with a copy of the Certificate of Insurance evidencing the existence of such coverage upon request from time to time by ATLAS BEHAVIOR AGENCY. Contractor further agrees that in the case of the commission of any act or omission that may constitute, negligent or intentional misconduct, professional negligence, malpractice, negligence or gross negligence in the performance of Contractor’s duties under this Agreement, the malpractice/professional liability coverage policy of Contractor shall provide coverage, not the malpractice/professional liability coverage policy of ATLAS BEHAVIOR AGENCY.

To the extent there are any complaints, claims, causes of action or any other dispute caused by, related to, or otherwise arising out of Contractor’s performance of Services under this Agreement, Contractor agrees to indemnify and/or reimburse ATLAS BEHAVIOR AGENCY for any and all expenses, liability, costs (including attorneys’ fees) or amounts incurred as a result thereof; further agrees that he/she shall be responsible to ATLAS BEHAVIOR AGENCY for any such liability, costs, expenses, judgment or damages resulting therefrom; and further agrees to hold ATLAS BEHAVIOR AGENCY harmless and otherwise indemnify, reimburse, pay back and defend ATLAS BEHAVIOR AGENCY against any such claim, complaint, cause of action, judgment or any award which may be due and owing as a result therefrom including, but not necessarily limited to, all attorneys’ fees and costs associated with or otherwise incurred by ATLAS BEHAVIOR AGENCY in defending any such complaint, claim or cause of action. ATLAS BEHAVIOR AGENCY shall not be liable to Contractor or clients on account of any personal injuries or property damage sustained or caused by Contractor in the performance of his/her Services hereunder.

• NON-SOLICITATION

For the duration of this Agreement, any subsequent agreement executed for the same or similar purpose, and two (2) years after termination of this Agreement, the Contractor shall not directly or indirectly interfere with the Company’s relationship with, or endeavor to entice away from the Company, the Company’s Customers, any officer, director or employee or any person who had a material business relationship with the Company in the duration of this Agreement.

The Company acknowledges that clients have the right to choose the professional consultants and/or therapists of their choice. Therefore, should a current client intend to remain with the Contractor following termination of this Agreement and should the Contractor provide competitive services to any current client of the Company (as defined below) for which the Contractor or the Contractor’s business or employer receives compensation, revenue or reimbursements, the Contractor and/or Contractor’s business or employer shall pay to the Company twenty five percent (25%) of all compensation, revenue, payments and/or reimbursements received for the performance of such competitive services, regardless of the source of the payment, for a period of two (2) years following termination of this Agreement.

Should the Company have reasonable belief that the Contractor has violated the condition above, the Contractor agrees that he/she shall, upon receipt of written request of the Company, furnish all information concerning compensation, revenue or reimbursements received by the Contractor or the Contractor’s business or employer so the Company may reasonably determine whether the Contractor has provided competitive Services to any current client of the Company and if so, what compensation, revenue, payments and/or reimbursements were received as a result thereof to permit the Company to determine any and/or all amounts which may be due and owing to the Company under this Agreement.

“Current client” shall include any individual to whom the Contractor provided services under this Agreement during the two (2) year period immediately preceding the termination of this Agreement. The Contractor’s obligations to the Company under this Section are independent of any other obligation between the parties hereto including any Agreement or promise contained in either this Agreement or any other agreement between the parties hereto, and are not subject to any set-off, defense, reduction, deduction or counterclaim based on any claim that Contractor may have against the Company.

• INDEPENDENT CONTRACTOR

The relationship of the parties hereto is that of an independent contractor. Accordingly, the Parties hereto are not deemed agents, partners, or joint venturers of the others for any purpose due to this agreement or the transactions contemplated thereby. The Company is not required to pay or make any contributions to any social security, local, state, or federal tax, unemployment compensation, workers compensation, insurance premium, profit-sharing, pension, or any other employee benefit for the Contractor during the term. The Contractor is responsible for paying and complying with reporting requirements for all local, state, and federal taxes related to payments made to the Contractor under this agreement. The Contractor hereby agrees that it will not represent to any third party that its engagement by the Company is in any capacity other than as an independent contractor.

1. NON-ASSIGNMENT

The Contractor shall not transfer or assign this agreement without the Company’s consent. However, the Company may transfer or assign this agreement or subcontract its obligations hereunder at any time without the Contractor’s consent. If the Company does so, anyone to whom the Company transfers, assigns, or subcontracts any or all of its obligations will have all of the Company’s rights with respect to such obligations.

1. DISPUTE RESOLUTION

Parties agree to settle disputes under this Agreement through (select one)

☐Negotiation               ☐Mediation                          ☐Arbitration                                      ☐Litigation

1. REMEDIES AND LITIGATION EXPENSES

The Contractor acknowledges and agrees that any breach or threatened or attempted breach of the provisions of this Agreement would cause irreparable harm to the Company, that such damage would be incapable of precise measurement and that no adequate remedy at law would exist for such breach or threatened or attempted breach. Accordingly, the Company shall be entitled to injunctive relief against the Contractor for any breach or threatened breach of this Agreement together with any other remedies available hereunder or at law or in equity for such breach or threatened/attempted breach, including the recovery of damages. In any action brought to enforce any provision of this Agreement, the Company shall be entitled to recover its reasonable attorneys’ fees, costs and expenses incurred in any such action or proceeding and in any appellate proceedings relating thereto from the Contractor in addition to any other relief to which the Company may be entitled.

1. TERMINATION
2. Either Party may terminate this Agreement, immediately upon written notice to the other party.
3. Upon termination of this Agreement, any payment obligations of the Company to Contractor will cease, except for earned but unpaid fees for Services performed by Contractor prior to the termination of this Agreement. However, any earned but unpaid amounts shall be subject to any rights of set off that Company may have with respect to amounts owed to Company by Contractor as a result of any outstanding or unpaid claims or otherwise as permitted under Indiana law.

• The termination of this agreement shall not discharge the liabilities accumulated by either Party.
• Any Clauses intended by the Parties or this agreement to survive the termination of this agreement shall survive the termination of this agreement by whatever cause.

1. CONFIDENTIALITY

All non-public, confidential or proprietary information of the Company, disclosed by the Company to the Contractor, 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, copied, or dealt with in any similar manner unless authorized in advance by the Company in writing.  Upon the Company’s request, the Contractor shall promptly return all documents and other confidential materials received from the Company.

The Company shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that, at the time of disclosure, (i) is or has been available publicly, other than for the reason of disclosure directly or indirectly by the Contractor; or (ii) has been made available to the Contractor and not bound by the obligation of confidentiality, or confidential information obtained independently by the Contractor without assistance, utilization, or use of confidential information. In addition, this Agreement is confidential and cannot be divulged to third parties, unless as provided by law, without the written consent of the Company.

Confidential information includes , but not limited to, client lists, client information, client medical information, client billing information, pricing, pricing indexes, pricing rates, insurance information, insurance payment/reimbursement rates, Medicaid information, Medicaid payment/reimbursement rates, Family and Social Services Administration (“FSSA”) information, FSSA codes, collection practices, computer programs and software, business plans, marketing plans, business information and systems, memoranda, correspondence, records and other information whether in hard copy or computer/electronic form (hereinafter “Confidential Information”).

1. FURTHER ASSURANCES

Each Party hereto agrees to perform any further acts and to execute and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement.Contractor further agrees that during the term of this Agreement and at all times thereafter, Contractor shall not disparage the name, reputation or goodwill of the Company or any of its officers, directors, employees and/or clients. Contractor further agrees to comply with all provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and all regulations promulgated thereunder including, without limitations, all privacy, confidentiality and security provisions thereof. Contractor also agrees to comply with the privacy and confidentiality provisions of the Health Information Technology for Economic and Clinical Heath Act (“HITECH”). Upon termination of this Agreement, Contractor shall promptly return all Company property including, but not limited to, all Confidential Information, documents, files, client lists, vendor lists, equipment (including but not limited to computer hardware, software and all copies of such software), documents, records, notebooks, disks, keys, flash-drives or other materials or information (including copies thereof) concerning Company, its business, pricing, rates, products, services, clients and employees.

1. FORCE MAJEURE

For this Agreement, “Force Majeure” means an event which a diligent party could not have reasonably avoided in the circumstances, which is beyond the control of a party and includes, but is not limited to, war, riots, civil disorder, earthquake, storm, flood or adverse weather conditions, strikes, lockouts or other industrial action, terrorist acts, confiscation or any other action by government agencies. A Party’s failure to fulfill its obligations due to Force Majeure shall not be considered a breach of this Agreement, provided that the Party has taken all reasonable precautions, due care, reasonable alternative measures, and minimal delay all to carry out the terms of this Agreement.

1. CHANGES TO THE AGREEMENT

Either Party may request changes to the agreement, but they will only be effective if agreed in writing, signed by all Parties, and recorded. If any ambiguity is found in the agreement or various documents forming this agreement, the Parties shall issue any necessary clarification or instruction.

1. NO WAIVER

Unless otherwise provided, failure by either Party to enforce any of the terms or conditions of this Agreement shall not be a waiver of their right to enforce the terms and conditions of this Agreement. A waiver by either Party of any right or benefit provided in this Agreement does not infer or permit a further waiver of that right or benefit, nor does it infer or permit a waiver of any other right or benefit provided in this Agreement.

1. SEVERABILITY

The provisions of this agreement are severable. If any provision is held to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision.

• COUNTERPARTS

This agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one instrument.

• ENTIRE AGREEMENT

This agreement constitutes the entire agreement between the parties. It supersedes all prior oral or written agreements or understandings between the Parties concerning the subject matter of this agreement. All documents annexed to this agreement shall be subject to the terms under this agreement, provided that the Parties append their signatures on the documents. The Parties will exercise utmost good faith in this agreement.

Any remedies contained herein shall be cumulative and not alternative. If the Contractor breaches any covenant set forth in this Agreement, the term of such covenant will be extended or tolled by the duration of such breach.

• headings

The article and section headings in this agreement are for convenience; they form in no part of this agreement and shall not affect its interpretation.

• PRONOUNS

All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular, or plural, as the identity of the person or entity may require. As used in this agreement: words of the masculine gender shall mean and include corresponding neuter words or words of the feminine gender, and words in the singular shall mean and include the plural and vice versa.

• NOTICES

Any notice required to be given between the Parties pursuant to the provisions of this Agreement shall be in writing and shall be deemed duly given upon hand-delivery and/or depositing same properly addressed to the other party in the United States Mail, certified return receipt with proper first class postage affixed thereto at the following addresses or such changed address as the Party shall have specified by written notice, provided that any notice of change of address shall be effective only upon actual receipt.

Company: __________________________________________________________________

Contractor: __________________________________________________________________

• CONSTRUCTION OF AGREEMENT

For purposes of interpreting and construing this Agreement, neither Party shall be considered the drafter of this Agreement.

• CONTRACTOR ACKNOWLEDGEMENTS

The Contractor acknowledges that they have been provided with the opportunity to negotiate this agreement and to seek legal counsel before signing this agreement. In addition, the Contractor acknowledges that the restrictions imposed are fair, reasonable, and necessary to protect the Company’s legitimate business interests and will not place an undue burden upon their livelihood in the event of enforcement of the restrictions.

The Contractor also acknowledges that they have entered into this agreement with the capacity and authority to contract freely and voluntarily. The Contractor hereby warrants and represents that he/she is not bound or otherwise subject to any prior contract, covenant, restriction or agreement, express or implied, which would prohibit the Contractor from performing the Services contemplated in this Agreement.  The Contractor further represents that he/she is not relying on any statements or representations made by the Company, verbal or otherwise, or its members or agents that are not expressly set forth herein.

• GOVERNING LAW

This Agreement shall be governed in all respects by the laws of the State of Indiana. and its Courts without regard to its conflict of law provisions. Any dispute arising under or out of this Agreement or between the Parties hereto shall be heard by either the state (circuit or superior) or federal court located in Fort Wayne, Indiana. Should the suit be filed in a venue or forum other than as provided herein, the filing Party shall pay to the other all costs, including attorneys’ fees, travel costs and local counsel fees, associated with dismissing the improperly filed matter or otherwise related to removing or transferring said action to the proper court and/or venue.

IN WITNESS WHEREOF, each of the Parties has executed this agreement, as of the day and year set forth below.

Signed by the duly authorized representative of the COMPANY   Signature: ……………………………………………..   Name: …………………………………………………..   Designation: ………………………………………….   Date:…………………………………………….

Signed by the CONTRACTOR     Signature: ……………………………………………..   Name: …………………………………………………..   Date:…………………………………………