Independent Contractor Agreement

TERMS OF SERVICE

This Independent Contractor Agreement (“Agreement” or “Terms of Service”) is effective immediately upon account creation on RDHealthServices.com. This contract is between the account creator (“Facility”) and R&D Health Services, LLC (“Contractor”). Facility and Contractor are each a “Party” and collectively the “Parties” to this Agreement.

In consideration of the mutual covenants and agreements herein, the Parties agree as follows:

  1. Term of Agreement. This Agreement is effective as of the Effective Date and continues on a month-to-month basis, unless terminated as set forth in Section 5 below.
  2. Contractor’s Services.
    1. Specific Services. Contractor will provide certain services (“Services”) with the associated compensation as set forth in more detail in Exhibits A and B, which are incorporated herein by reference.
    2. Contractor Reliance. Contractor is relying on Facility and Facility’s owners, employees, agents, subcontractors, residents and residents’ personal representatives to provide Contractor with complete and accurate information. Facility agrees that Contractor will not be liable for any Claim (defined in Section 8) arising out of incomplete or inaccurate information provided to Contractor by Facility or Facility’s owners, directors, officers, employees, agents, subcontractors, residents or residents’ personal representative.
  3. Relationship of the Parties.
    1. Independent Contractor Relationship. It is expressly understood and agreed by the Parties that Contractor is an independent contractor in the performance of each and every part of this Agreement and that nothing in this Agreement is intended, or shall be construed, to create any sort of employment, agency or joint venture relationship between Contractor and Facility.
    2. Hours; Services to Others. The Parties expressly understand and agree that, as a Contractor, Contractor has the discretion to (i) set the schedule and work hours for its personnel as Contractor determines necessary or appropriate, in its sole discretion, to perform the Services; and (ii) provide services to other clients while performing services for Facility.
    3. Business Associate. The Parties expressly understand and agree that, with respect to the use and disclosure of a Facility’s residents’ protected health information (“PHI”), each Party has an obligation to comply with state and federal privacy regulations, including the Health Insurance Portability and Accountability Act and its implementing regulations, as amended from time to time (collectively, “HIPAA”), and Arizona’s Confidentiality of Medical Records statutes, A.R.S. § 12-2291 et seq. Contractor is a Business Associate (as that term is defined by HIPAA) of Facility and will comply with the terms of the Business Associate Agreement attached as Exhibit C and incorporated by reference into this Agreement.
  4. Compensation.
    1. Rate. Facility will pay Contractor for Services in accordance with the terms set forth in Exhibit B.
    2. Means of Payment. Facility may pay with a check, money order, cash, and credit/debit card. All checks and money orders must be addressed to R&D Health Services, LLC.
    3. Time for Payment. Payment is due immediately upon completion of Services or as a monthly recurring payment if the facility has agreed to this option.
    4. Taxes. If required by the Internal Revenue Code, Facility shall provide Contractor with an IRS Form 1099 at the end of each calendar year in which Services are performed pursuant to this Agreement.
  5. Termination and Effect of Termination.
    1. This Agreement is month-to-month. Either Party may terminate this Agreement with thirty (30) calendar days’ advance written notice.
    2. Either Party may terminate this Agreement immediately upon written notice to the other Party in the event the other Party breaches any material provision of this Agreement, dissolves, files a bankruptcy petition, becomes insolvent, ceases to do business, or is suspended, excluded or debarred from any government payer program, including Medicare/Medicaid, or by any federal agency.
    3. Upon termination of this Agreement, Facility will pay Contractor for work performed as of the date of termination. Contractor will not perform, or be liable to perform, any Services after termination of this Agreement.
  6. Insurance. Facility agrees to maintain liability insurance in sufficient limits to cover the indemnification obligations in this Agreement and to add Contractor as an additional insured. Facility agrees to provide Contractor with a certificate of insurance indicating the required coverage, upon request.
  7. LIMITATION OF LIABILITY. CONTRACTOR SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES SUFFERED BY FACILITY OR ANY OTHERS, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM THE SERVICES PROVIDED UNDER THIS AGREEMENT.
  8. Indemnification. Facility agrees to indemnify, defend and hold harmless Contractor and all of Contractor’s respective owners, directors, officers, employees, agents, successors and assigns (“Contractor Indemnitees”), harmless from any and all injuries, losses, claims and damages to any person or property, and all costs and expenses, including, without limitation, attorneys’ and other professional fees and costs, and any other liabilities (collectively, “Claims”) incurred by a Contractor Indemnitee as a result of negligence, willful misconduct or breach of this Agreement by Facility or any of Facility’s employees, directors, officers, agents, or subcontractors, including the provision of inaccurate or incomplete information about a resident. This Section survives termination or expiration of this Agreement.
  9. Facility’s Representations, Warranties and Other Contractual Obligations.
    1. Facility represents and warrants to Contractor that it complies with all local, state and federal laws and regulations regarding business permits and licenses that may be required to operate an Assisted Living Facility (as defined by A.R.S. § 36-401(A)(8)). Facility will fully comply with all applicable local, state and federal laws and regulations during the term of this Agreement.
    2. Facility will supply Contractor with accurate and complete information for the purpose of performing Services under this Agreement.
    3. Facility will provide Contractor with access to its residents, its residents’ personal representatives (if applicable) and its residents’ health information maintained in electronic or physical form. Facility will limit Contractor’s access to only the health information of residents necessary for Contractor to perform Services under this Agreement.
    4. Facility will provide Contractor with access to its physical premises during normal business hours.
  10. Assignment. Neither this Agreement nor any of the rights or obligations arising hereunder may be assigned by any Party to this Agreement to any third party without the prior written consent of the other Party to this Agreement.
  11. No Third Party Beneficiaries: Nothing in this Agreement will confer upon any person other than the Parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
  12. Severability. In the event a court of competent jurisdiction holds that any provision or part of any provision of this Agreement is invalid or unenforceable for any reason, the remaining portions of this Agreement shall remain in full force and effect to the maximum extent permitted by law.
  13. Notices. Any notice required or permitted to be given under this Agreement shall be sufficient and effective if in writing and (i) delivered personally, (ii) sent by same-day or overnight courier, (iii) mailed, or (iv) sent by written telecommunication or facsimile.
    1. Notices to Contractor. Notices to Contractor shall be sent or delivered to:

      R&D Health Services, LLC
      ATTN: David Lup, President
      15270 N. 62nd Dr.
      Glendale, AZ 85306

    2. Notices to Facility. Notices to Facility shall be sent or delivered to: the    address/email address/fax saved on file for the facility.
    3. Modification/Waiver. No modification, amendment or waiver of any of the provisions contained in this Agreement, nor any future representation, promise or condition in connection with the subject matter of this Agreement, shall be binding upon any Party unless made in writing and signed by such Party or by a duly authorized officer or agent of such Party. The failure of either Party to require the performance of any term or obligation of this Agreement, or the waiver by either Party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
  14. Governing Law. This Agreement shall be governed by and construed under the laws and judicial decisions of the State of Arizona.
  15. Compliance with Laws. The Parties are required to comply with federal and state laws. If this Agreement must be amended to secure such compliance, the Parties will meet in good faith to agree upon such amendments. If the Parties cannot agree upon such amendments, then either Party may terminate this Agreement in accordance with Section 5.
  16. Headings. The headings in this Agreement are for convenience only and shall not be used to interpret or construe the Agreement’s provisions.
  17. Counterparts. This Agreement may be executed in any number of duplicate originals, photocopies, facsimiles or PDFs, each of which shall be deemed an original, and all of which (once each party has executed at least one such duplicate original, photocopy, telecopy, facsimile or PDF) will constitute one and the same document.
  18. Survival. Rights and obligations which by their nature should survive, or which this Agreement expressly states will survive, will remain in full force and effect following termination or expiration of this Agreement.
  19. Entire Agreement. This Agreement, including its Exhibits, constitutes a single, integrated written contract expressing the entire agreement of the Parties concerning the subject matters covered by this Agreement. No other agreements or understandings of any kind concerning the subject matters covered by this Agreement, whether express or implied in law or fact, have been made by the parties to this Agreement except as specifically set forth in this Agreement.

Contractor and a duly authorized representative of Facility have caused this Independent Contractor Agreement to be executed as of the date the facility created an account on RDHealthServices.com

EXHIBIT A – SERVICES

Upon contractor’s discretion, Contractor shall complete, review, sign, and update Service Plans (as defined by A.A.C. § R9-10-801(9) and described in A.A.C. § R9-10-808). Contractor is not required to make an independent determination of when a Service Plan is required to be completed, reviewed, or updated.

EXHIBIT B – COMPENSATION

Facility shall pay Contractor for its Services as follows:

Pay per service plan package:

Service Cost
Initial Service Plan $60 each
Update to Service Plan $60 each

Monthly membership package:

Service Cost
Monthly membership for up to 5 residents account maintenance $69.99 per month (each account)
Monthly membership for up to 10 residents account maintenance $99.99 per month (each account)

***Discounts are available and are provided at the contractor’s discretion. If a discount has been provided to the facility, the facility is only responsible to pay the after-discount monthly rate. The facility is made aware of the discount and agrees to accept the discount upon creation of the account.

EXHIBIT C – BUSINESS ASSOCIATE AGREEMENT

This Business Associate Agreement (“BAA”) is entered into between Contractor and Facility as of the Effective Date of the Agreement. This BAA sets out the responsibilities and obligations of Contractor as a Business Associate of Facility under the HIPAA.

RECITALS

Facility has engaged Contractor to provide the Services described in the Agreement.

Facility may make available to Contractor PHI of Individuals in conjunction with the Services, which Contractor will Use or Disclose only in accordance with this BAA.

AGREEMENT

  1. Contractor and Facility agree to the terms and conditions of this BAA in order to comply with the rules on handling of PHI under the HIPAA Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Part 160 and Part 164, Subpart E (“Privacy Rule”), the HIPAA Security Standards, 45 C.F.R. Part 160 and Part 164, Subpart C (“Security Rule”), and the HIPAA Breach Notification Regulations, 45 C.F.R. Part 164, Subpart D (“Breach Notification Rule”), all as amended from time to time.
  2. When Contractor sends the Facility an email, or the facility sends the contractor an email, the information that is sent is not encrypted. This means a third party may be able to access the information and read it since it is transmitted over the Internet. In addition, once the email is received, a third party may be able to access the receiver’s email inbox account and read it. The Facility and its residents/residents’ representatives understand the risks of unencrypted email and do hereby as of the effective date of this agreement give permission to R&D Health Services LLC to send protected health information via unencrypted email.
  1. DEFINITIONS
    1. Terms Defined in Regulation. Unless otherwise provided in this BAA, all capitalized terms in this BAA will have the same meaning as provided in the Agreement and under the Privacy Rule, the Security Rule and the Breach Notification Rule.
    2. Protected Health Information or PHI. PHI means PHI that Contractor receives from Facility, or creates, maintains or transmits on behalf of Facility.
  2. USES AND DISCLOSURES OF PROTECTED HEALTH INFORMATION
    1. Performance of Services. Contractor will Use or Disclose PHI only for those purposes necessary to perform Services, or as otherwise expressly permitted in this BAA or required by law, and will not further Use or Disclose such PHI.
    2. Subcontractors. Contractor agrees that, in accordance with § 164.502(e)(1), if Contractor’s Subcontractor creates, receives, maintains or transmits PHI on behalf of Contractor, Contractor will enter into an agreement with such Subcontractor that contains the same restrictions and conditions on the Use and Disclosure of PHI as contained in this BAA.
    3. Contractor Management, Administration and Legal Responsibilities. Contractor may Use PHI for Contractor’s management and administration, or to carry out Contractor’s legal responsibilities. Contractor may Disclose PHI to a third party for such purposes only if: (1) the Disclosure is required by law; or (2) Contractor secures written assurance from the receiving party that the receiving party will: (i) hold the PHI confidentially; (ii) Use or Disclose the PHI only as required by law or for the purposes for which it was Disclosed to the recipient; and (iii) notify the Contractor of any other Use or Disclosure of PHI.
    4. Data Aggregation. Contractor may Use PHI to perform data aggregation services as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B). Contractor may de-identify PHI in accordance with 45 C.F.R. § 164.514 and may use or disclose such de-identified data.
    5. Facility Responsibilities. To the extent Contractor is to carry out Facility’s obligations under the Privacy Rule, Contractor will comply with the requirements of the Privacy Rule that apply to Facility’s compliance with such obligations.
    6. 42 C.F.R. Part 2. To the extent the PHI received by Contractor is protected by the federal Confidentiality of Substance Use Disorder Patient Records regulations located at 42 C.F.R. Part 2 (called “Part 2 Covered Information”), Contractor acknowledges that in receiving, storing, processing or otherwise dealing with Part 2 Covered Information, Contractor is fully bound by 42 C.F.R. Part 2 with respect to the Part 2 Covered Information. If necessary, Contractor will resist in judicial proceedings any efforts to obtain access to Part 2 Covered Information except as permitted by 42 C.F.R. Part 2.
  3. SAFEGUARDS FOR PROTECTED HEALTH INFORMATION
    1. Adequate Safeguards. Contractor will implement and maintain appropriate safeguards to prevent any Use or Disclosure of PHI for purposes other than those permitted by this BAA, including administrative, physical and technical safeguards to protect the confidentiality, integrity, and availability of any Electronic Protected Health Information (“ePHI”), if any, that Contractor creates, receives, maintains, and transmits on behalf of Facility.
    2. Compliance with HIPAA Security Rule. Contractor will comply with the applicable requirements of the HIPAA Security Rule.
  4. REPORTS OF IMPROPER USE OR DISCLOSURE OF PROTECTED HEALTH INFORMATION, SECURITY INCIDENTS AND BREACHES
    1. Use or Disclosure Not Permitted by This BAA. Contractor will report in writing to Facility any Use or Disclosure of PHI for purposes other than those permitted by this BAA within thirty (30) calendar days of Contractor’s learning of such Use or Disclosure.
    2. Security Incidents. Contractor will report in writing to Facility any Security Incident of which Contractor becomes aware. Specifically, Contractor will report to Facility any successful unauthorized access, Use, Disclosure, modification, or destruction of ePHI or interference with system operations in an information system containing ePHI of which Contractor becomes aware within thirty (30) calendar days of Contractor learning of such Security Incident. Notwithstanding the foregoing, Contractor and Facility acknowledge the ongoing existence and occurrence of attempted but unsuccessful Security Incidents that are trivial in nature, such as pings and port scans, and Facility acknowledges and agrees that no additional notification to Facility of such unsuccessful Security Incidents is required. However, to the extent that Contractor becomes aware of an unusually high number of such unsuccessful Security Incidents due to the repeated acts of a single party, Contractor shall notify Facility of these attempts and provide the name, if available, of said party.
    3. Breaches of Unsecured PHI. Contractor will report in writing to Facility any Breach of Unsecured Protected Health Information, as defined in the Breach Notification Rule, within thirty (30) calendar days of the date Contractor learns of the incident giving rise to the Breach. Contractor will provide such information to Facility as required in the Breach Notification Rule.
  5. ACCESS TO PROTECTED HEALTH INFORMATION
    1. Facility Access. Within fifteen (15) calendar days of a request by Facility for access to PHI, Contractor will make requested PHI available to Facility.
    2. Individual Access. If an Individual makes a request for access directly to Contractor, Contractor will within five (5) business days forward such request in writing to Facility. Facility will be responsible for making all determinations regarding the grant or denial of an Individual’s request for PHI and Contractor will make no such determinations. Only Facility will release PHI to an Individual pursuant to such a request, unless Facility directs Contractor to do so.
  6. AMENDMENT OF PROTECTED HEALTH INFORMATION
    1. Facility Request. Within fifteen (15) calendar days of receiving a request from Facility to amend an Individual’s PHI, Contractor will provide such PHI to Facility for amendment. Alternatively, if Facility’s request includes specific instructions on how to amend the PHI, Contractor will incorporate such amendment into the PHI it holds in a Designated Record Set, such as the Service Plan, within fifteen (15) calendar days of receipt of the Facility request.
    2. Individual Request. If an Individual makes a request for amendment directly to Contractor, Contractor will within five (5) business days forward such request in writing to Facility. Facility will be responsible for making all determinations regarding amendments to PHI and Contractor will make no such determinations, unless Facility directs Contractor to do so or the request for amendment is to a Service Plan completed, reviewed and signed by Contractor. Contractor may in its discretion make amendments to the Service Plan. Contractor will notify Facility if an amendment is made or a request for amendment is denied, either in whole or in part, no later than forty-five (45) days after the Individual’s request for amendment, so that Facility can discharge its obligations under 45 C.F.R. § 164.526.  
  7. ACCOUNTING OF DISCLOSURES OF PROTECTED HEALTH INFORMATION
    1. Disclosure Records. Contractor will keep a record of any Disclosure of PHI that Contractor makes, if Facility would be required to provide an accounting to Individuals of such Disclosures under 45 C.F.R. § 164.528. For each Disclosure for which it is required to keep a record, Contractor will record and maintain the information required by 45 C.F.R. § 164.528. Contractor will maintain its record of such Disclosures for six (6) years from the date of the Disclosure.
    2. Provision to Facility. Within thirty (30) calendar days of receiving a notice from Facility, Contractor will provide to Facility its records of Disclosures.
    3. Request by Individual. If an Individual requests an accounting of Disclosures directly from Contractor, Contractor will forward the request and its record of Disclosures to Facility within five (5) business days of Contractor’s receipt of the Individual’s request. Facility will be responsible for preparing and delivering the accounting to the Individual. Contractor will not provide an accounting of its Disclosures directly to any Individual, unless directed by Facility to do so.
  8. ACCESS TO BOOKS AND RECORDS
    Contractor will make its internal practices, books and records on the Use and Disclosure of PHI available to the Secretary of the Department of Health and Human Services to the extent required for determining compliance with the Privacy Rule, Security Rule, or Breach Notification Rule. No attorney-client, accountant-client or other legal privilege will be deemed waived by Contractor or Facility as a result of this Section.
  9. TERMINATION
    Facility may terminate this BAA upon material breach of this BAA. Facility will provide Contractor with written notice of the breach of this BAA and afford Contractor the opportunity to cure the breach to the satisfaction of Facility within thirty (30) calendar days of the date of such notice. If Contractor fails to timely cure the breach, as determined by Facility in its sole discretion, Facility may terminate this BAA. This BAA otherwise terminates upon termination of the Agreement.
  10. RETURN OR DESTRUCTION OF PROTECTED HEALTH INFORMATION
    1. Return or Destruction of PHI. Within thirty (30) calendar days of termination of this BAA, Contractor will return to Facility all PHI that Contractor or its Subcontractors maintain in any form or format. Alternatively, Contractor may, upon Facility’s consent, destroy all such PHI and provide written documentation of such destruction.
    2. Retention of PHI if Return or Destruction is Infeasible. If Contractor believes that returning or destroying PHI at the termination of this BAA is infeasible, it will provide written notice to Facility within thirty (30) calendar days of the effective date of termination of this BAA. Such notice will set forth the circumstances that Contractor believes makes the return or destruction of PHI infeasible and the measures that Contractor will take for assuring the continued confidentiality and security of the PHI. Contractor will extend all protections, limitations and restrictions of this BAA to Contractor’s Use or Disclosure of PHI retained after termination of this BAA and will limit further Uses or Disclosures to those purposes that make the return or destruction of the PHI infeasible.

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