THIS SERVICE AGREEMENT (this “Agreement”) is made by and between Vaccination Services of America, Inc., a Nebraska corporation, doing business as TotalWellness (“TW”) and the Company named above (“Company”). Either TW or Company may be referred to herein as a “party” or collectively as the “parties”.
WHEREAS TW provides vaccinations (“Services”); and
WHEREAS Company desires to engage TW to provide Services for Company and Company’s participants.
NOW THEREFORE, in consideration of the foregoing, the mutual covenants and promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Provision of Services. Subject to the terms of this Agreement, TW agrees to provide to Company the Services as listed on this order (the “Order”). TW cannot guarantee the availability of any specific dates and times for the rendering of Services for Company. TW will make reasonable efforts to schedule Services on the dates and at the times requested. TW schedules Services on a first-come, first-served basis and event dates and times depend on availability of staff, availability of equipment, availability of supplies, and availability of vaccine. In the event requested dates and times are not available, TW will make reasonable efforts to schedule Services on other dates acceptable to the Company. TW shall only be responsible to provide the Services specified on this Order. If TW is unable to perform the Services listed on this order as a result of a force majeure event, TW shall make a good faith effort within twenty-four (24) hours of the scheduled event date to reschedule the event to a mutually agreeable time. TW may engage one or more subcontractors to perform any or all its obligations under this Agreement. TW and Company agree that TW shall in no event be required to provide Services to participants who are not legally an adult in the state where the Services shall be provided. If TW is unable to perform the Services listed on this Order on the scheduled Service date, time and location for any reason other than a force majeure event, the parties will work in good faith to agree upon a new dates time and/or location; provided that if the parties are unable to agree, then either party may terminate the Services to be performed on said date, time and location without liability.
2. Responsibilities of Company. In addition to performing any other responsibilities contained in this Agreement, the Company shall:
(A) Consent Forms. Be aware that each Company participant must complete and sign a TW Consent and Release form prior to receiving Services. Company shall be solely responsible for making copies of and distributing the TW Consent and Release form. Forms are provided via email and the TW website.
(i) TW staff are not responsible for “checking in” individuals during events. It is the Company’s sole responsibility to handle any “check in” responsibilities.
(B) Order Form. Accurately complete the Order form.
(C) Payment of Charges. Submit payment in full upon submission of the Order. Company acknowledges receipt of and agrees to pay for the Services provided herein pursuant to the Order. Company shall be solely responsible for the charges incurred pursuant to this Agreement. Company is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Company hereunder, other than any taxes imposed on TW’s income.
(i) In the event Company is sharing the charges with Company’s participants, Company shall be solely responsible for obtaining reimbursement from its participants. In no event shall TW staff be permitted to collect, receive, or carry any payments from the site at the time of the provision of Services.
(D) Minor Service Changes. Notify TW at least fourteen (14) days prior to the scheduled Service date (not including the Service date) for requested minor Service changes. Minor Service changes include only a change in Service location within the same metropolitan area, increases in quantity of Services requested, or changes in time (of day) of Services. Decreases to the number of Services requested are not allowed. Minor Service changes requested eleven (11) to thirteen (13) days prior to the event may incur a $75 fee. Minor Service changes requested ten (10) or fewer days prior to the event may incur a $150 fee. TW will accommodate changes if reasonably possible. The following changes shall not be deemed minor Service changes: (a) a change in Service date; (b) a change in Service location other than within the same metropolitan area; and (c) other changes not listed above as a minor Service change.
(E) Promotion. Inform, publish, and promote the provision of Services to Company’s participants. Available resources are included in TW’s emails at no charge to Company.
(F) Data Collection. Comply with all Privacy Rules, defined in section 3(D), to the extent applicable to Company with respect to any data provided to or received from TW as a part of the Services. TW collects various data from Company, Company’s participants, and others related to Company as a part of the Services, some of which is protected by Privacy Rules. Other than data collected on-site by TW, Company shall ensure that data protected by the Privacy Rules is provided to Company in a manner compliant with the Privacy Rules.
(G) Event Extension. Agree to pay for additional staff time, at $85 per hour, per staff when Company requests staff to stay past the scheduled end time to accommodate participants that could have been accommodated during the scheduled event time.
3. Responsibilities of TW. In addition to performing any other responsibilities contained in this Agreement TW shall:
(A) Provide vaccination Services for Company’s participants in a professional and efficient manner.
(B) Maintain accurate records of Services provided to Company’s participants. The original Consent and Release forms shall remain the property of TW. Copies are not available to the Company due to HIPAA regulations on privacy of health information unless Company provides TW with participant authorizations that meet HIPAA requirements.
(C) Maintain professional liability insurance for vaccination and other wellness Services in the amount of $5 million cumulative and $3 million per incident. Maintain general liability insurance for vaccination and other wellness Services in the amount of $2 million cumulative and $1 million per incident. Maintain Umbrella Liability $2 million each occurrence and $2 million aggregate. Maintain Automobile Liability $1 million each accident and $1 million uninsured motorist. Maintain Workers Compensation $1 million each accident, $1 million each employee, and $1 million policy limit. Maintain Cyber Liability of $1 million. All insurance policies will have a carrier AM Best rating of A- or better.
(D) Comply with all applicable federal, state, and local laws, rules, orders, regulations, and ordinances (including but not limited to the Privacy Rules of the Health Insurance Portability and Accountability Act of 1996, (HIPAA)) (collectively, “Privacy Rules”) with respect to on-site collection of data, storage, use, and transmittal of all data received.
(E) Take commercially reasonable steps to procure vaccines, items, and supplies needed to facilitate Services. All vaccines, items, and supplies shall remain the property of TW.
4. Charges for Services; Payment.
(A) Service Charges. Service Charges have been outlined on the above Order.
(B) Minimum Charges. Company is obligated to pay for a minimum of one hundred percent (100%) of the total amount of Services ordered per event, or the number of Services administered; whichever is greater.
5. Force Majeure. TW’s obligations hereunder, including without limitation the performance of Services, are subject to force majeure events, including without limitation, strikes, accidents, acts of God, weather conditions, inability to secure labor, supplies, vaccinations and/or other products, fire, earthquake and rules, regulations or restrictions imposed by any government or governmental agency, or other delays or failure of performance beyond the commercially reasonable control of TW.
6. Termination and Major Service Changes.
(A) Termination of Services. Either party may terminate this Agreement, with or without cause, with written notice to the other party. If Company terminates this Agreement thirty-one (31) or more days prior to the event date Company shall pay a $75 termination fee. If Company terminates this Agreement fourteen (14) to thirty (30) days prior to the event date Company shall pay a $150 termination fee. If Company terminates this Agreement eight (8) to thirteen (13) days prior to the event date Company shall pay a $300 termination fee. If Company terminates this Agreement seven (7) or fewer days prior to the event date Company shall pay a $500 termination fee. Company acknowledges that said amounts are not penalties or liquidated damages, but rather are termination fees paid to TW for terminating the Services and product orders and otherwise unwinding all steps that TW had already put into place to provide the terminated Services.
(B) Major Service Changes. Major Service changes are all changes requested that are not specifically set forth in Section 2(D) above as a minor Service Change, including, without limitation, a change in Service date and a change in Service location other than within the same metropolitan area. Any request for a new date or location (other than within the same metropolitan area) may incur a Major Service Change Fee. Major Service changes requested thirty-one (31) or more days prior to the event date may incur a $75 fee. Major Service changes requested fourteen (14) to thirty (30) days prior to the event date may incur a $150 fee. Major Service changes requested eight (8) to thirteen (13) days prior to the event date may incur a $300 fee. Major Service changes requested seven (7) or fewer days prior to the event date may incur a $500 fee.
(C) Cancellation of Services by Company for Vaccination Supply Interruption. The delivery of vaccination Services depends on vaccine supply. TW does not have control over the manufacturing of vaccine. TW may have to occasionally postpone/reschedule such Services if the vaccine supply is not meeting demand, which is a force majeure event under this Agreement. In such event, TW will reschedule postponed Services in a timely manner, as close to the previously scheduled date as possible. Company may elect not to reschedule such postponed Services without incurring any otherwise applicable termination charges. Company shall be responsible; however, for any additional Services scheduled pursuant to this Agreement. In the event Company elects not to reschedule the postponed Services, TW shall not be responsible for any additional costs incurred by Company in securing alternate vendors for the vaccination Services or any damages incurred by Company because of the cancellation.
7. Indemnification.
(A) TW shall defend and indemnify Company and its officers, managers, directors, members, shareholders, and assigns (each a “Company Indemnified Person”) from any and all third party claims, losses, damages, and expenses, including reasonable legal fees and disbursements (collectively, “Losses”), incurred by a Company Indemnified Person as a result of, due to, arising from, or related to (i) the negligence or willful or reckless acts or omissions of or by TW or (ii) a breach by TW of any material provision of this Agreement; provided, however, that TW will have no liability to a Company Indemnified Person for any such Losses to the extent caused in whole or in part by the negligence or willful or reckless acts or omissions of an Indemnified Person.
(B) Company shall defend and indemnify TW and its officers, managers, directors, members, shareholders, and assigns (each a “TW Indemnified Person”) from any and all third party Losses, incurred by a TW Indemnified Person as a result of, due to, arising from, or related to (i) the negligence or willful or reckless acts or omissions of or by Company or (ii) a breach by Company of any material provision of this Agreement; provided, however, that Company will have no liability to a TW Indemnified Person for any such Losses to the extent caused in whole or in part by the negligence or willful or reckless acts or omissions of a TW Indemnified Person.
8. Limitation of Liability; No Warranties. EACH PARTY SHALL ONLY BE LIABLE FOR ANY DIRECT DAMAGE THEY HAVE CAUSED THE OTHER PARTY. THE TOTAL LIABILITY EITHER PARTY SHALL HAVE TO THE OTHER PARTY RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL NOT, UNDER ANY CIRCUMSTANCES AND CUMULATIVELY UNDER ALL THEORIES OF RECOVERY, EXCEED THE AMOUNT ACTUALLY PAID TO TW DURING THE 12 MONTHS PRECEDING THE EVENT FIRST CAUSING THE CLAIM UNDER THIS AGREEMENT FOR SERVICES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE OF DATA, INCURRED BY EITHER PARTY OR ANY OTHER PERSON IN ANY WAY RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE OF ANY WORK PURSUANT TO THIS AGREEMENT, WHETHER AN ACTION IN CONTRACT, BREACH OF WARRANTY OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES. TW HEREBY DISCLAIMS, AND COMPANY HEREBY WAIVES, ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. OTHER THAN ANY REPRESENTATIONS OR WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT, NO REPRESENTATIONS OR WARRANTIES SHALL BE APPLICABLE TO THIS AGREEMENT.
9. Entire Agreement. This Agreement contains the entire understanding and agreement of the parties with respect to the matters set forth herein. All prior or contemporary understandings, representations and agreement of the parties are hereby incorporated into this Agreement.
10. Amendment. This Agreement may not be modified, altered, or amended except by a subsequent written instrument signed by the party against whom such modification, alteration or amendment is sought to be enforced. In the event of any minor changes per Section 2(D), an electronic mail documenting both parties’ acceptance shall be deemed an amendment of the Order and shall be deemed to be signed by both parties.
11. Assignment. This Agreement may not be assigned by Company without the prior written consent of TW.
12. Governing Law, Jurisdiction & Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska. Company agrees to and does hereby submit to the jurisdiction of the courts of the State of Nebraska in connection with any matter arising under the terms of this Agreement. The parties agree the venue in connection with any proceeding arising under the terms of this Agreement shall be in Douglas County Nebraska.