GCA HEALTHCARE CONSULTING
CLIENT SERVICE TERMS
In these Client Service Terms, “GCA” means GCA HealthCare Consulting and “Client” means any client for which GCA provides consulting services.
- Services and Services Agreement
GCA agrees to provide Client with the services and deliverables as set forth in a written proposal of GCA that is accepted by Client (the “Services”) from time to time (the Services proposal once approved and accepted by Client shall be referred to as the “Services Agreement”). The terms of the Services Agreement and these Client Service Terms are herein referred to as the “Agreement” and shall govern and take priority to any purchase order or invoice from Client or GCA related to any Services.
Client understands that GCA is a sole proprietor business and that it may subcontract some of its obligations in the Services Agreement. If any of the Services are performed by subcontractors of GCA, GCA shall be and remain responsible and liable for the performance of all of the Services. GCA shall perform all Services for Client as an independent contractor of Client. GCA employees and subcontractors shall not be considered employees of Client within the meaning or application of any federal, provincial/state or local laws and regulations including, without limitation, laws or regulations governing unemployment insurance, workers’ compensation and taxes of any kind.
- Financial Terms
- Fees. Client agrees to pay GCA such fees as provided in the applicable Services Agreement.
- Initial Billing. If a Services Agreement contains a requirement that a portion of the agreed fee is payable in advance of Services provided, then upon approval and acceptance of the Services Agreement by Client, Client agrees to pay GCA the amount specified in the Services Agreement and GCA shall commence the Services on payment of the initial billing amount.
- Invoices. GCA shall invoice Client as provided in each Services Agreement. Unless otherwise agreed in the Services Agreement, invoices shall be due and payable within thirty (30) days after Client receives such invoice. An administrative charge of 1.5% of the total outstanding amount will be applied for all undisputed overdue amounts for each outstanding month. All amounts payable under shall be paid in the currency specified in the Services Agreement, and if no currency is specified then in Canadian dollars.
- Taxes. Any applicable sales, use, excise, value added, service and other similar taxes shall be in addition. Each invoice shall specifically itemize the amount of any taxes that are payable by Client.
- Expenses. Client shall reimburse GCA for all actual reasonable expenses incurred by GCA in the performance of the Services including mileage, travel and for any tools or outside services deemed necessary by GCA for the effective performance of the Services as may be provided in any Services Agreement or approved by Client. GCA agrees to comply with reasonable documentation requirements of Client related to expenses.
- Payment Schedules. Payment schedules shall be as outlined in the Services Agreement. The payment of the final invoice itemized in a Services Agreement shall constitute unqualified acceptance of such Services.
- Confidentiality and Privacy
- In the event GCA and Client have signed a confidentiality agreement that agreement shall govern and replace the terms of confidentiality in these Client Service Terms. However, if no agreement of non-disclosure or confidentiality has been signed, or is not mutual in favor of GCA, then these terms shall govern related to the Confidential Information of GCA.
- In the course of the Services, each of GCA and Client may be exposed to or acquire information that is proprietary to or confidential to the other. Both GCA and Client agree to hold such information in confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever, without the prior written consent of the other, other than for the performance of obligations or the exercise of its permitted rights hereunder. Each shall be responsible for its employees, subcontractors, agents and representatives. All confidential and proprietary information of GCA and Client (including without limitation all business, financial, technical and other information and data, and the Deliverables provided hereunder) is hereinafter collectively referred to as “Confidential Information“.
- A party shall not be liable for the disclosure of the other party’s Confidential Information if and to the extent only that:
- at the time of or after disclosure the Confidential Information is published, known publicly or otherwise in the public domain other than as a result of a disclosure by the receiving party;
- after disclosure by the disclosing party the Confidential Information becomes available to the receiving party from a third party who is not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such Confidential Information;
- such Confidential Information was known to or in the lawful possession of the receiving party prior to the time of disclosure by or on behalf of the disclosing party as evidenced by the written records of the receiving party at that time;
- such Confidential Information is independently developed by or on behalf of the receiving party without use of or reliance upon the Confidential Information of the disclosing party.
- GCA shall comply with all applicable privacy legislation in performance of the Services.
- Limited Warranty
GCA warrants to Client that the Services will be performed in a professional manner and that the Services shall not infringe upon any third party proprietary rights. The warranty contained in this paragraph is limited and the only warranty made by GCA under this Agreement. GCA does not make, and Client does not receive, any other warranties, express or implied, and all warranties of merchantability, fitness for a particular purpose are expressly excluded.
- Limitation of Liability
In no event shall either party be liable with respect to its obligations under this Agreement for any consequential, incidental, exemplary, punitive, special or indirect damages of any kind or any claim for lost profits, even if it has been advised of the possibility of such damages. In any event, the aggregate liability of GCA to Client shall be limited to the amount paid to GCA by Client with respect to the particular Services Agreement to which the claim or cause of action relates. This limitation applies to all causes of action or claims in the aggregate, including without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, claims for failure to exercise due care in the performance of services and other torts. Further, no cause of action which accrued more than one (1) year prior to the filing of a suit alleging such cause of action may be asserted against GCA. Both parties understand and agree that the remedies, exclusions and limitations herein allocate the risks between the parties as authorized by applicable laws. The fees herein reflect and are set in reliance on this allocation of risk and the exclusion of consequential damages and limitation of liabilities set forth in this Agreement. Notwithstanding anything to the contrary herein, the limitations set forth in this paragraph shall not apply in the event of GCA’s gross negligence or willful misconduct.
- Intellectual Property
All Confidential Information of a party, and any other information, materials and technology owned by a party or a third party prior to the Services shall remain the property of such party or third party. Other than for proprietary products and services of GCA, all right, title and interest in and to the work product, documents and other materials, including title to copyright in all copyrightable material, authored or prepared by GCA for Client pursuant to a Services Agreement may be used by Client in any manner whatsoever, shall be considered “work made in the course of employment” under the copyright laws of Canada. If the work product includes any material previously copyrighted by GCA, GCA grants Client the right to copy and use such previously copyrighted material in Client’s business activities and the right to sub-license such work product to its Affiliates on a similar basis. GCA hereby waives all moral rights in all work product and agrees to obtain waivers from all of its employees, agents and/or subcontractors involved in the preparation of work product under a Services Agreement. For Services that include any proprietary products or services of GCA, GCA grants Client a nonexclusive royalty free perpetual license to use such work product.
- Client may terminate this Services Agreement at any time, with or without cause, upon providing ten (10) days written notice to GCA, without liability beyond payment for Services performed and expenses incurred through the effective date of termination. GCA may terminate a Services Agreement at any time for material breach of this Agreement by Client upon ten (10) days written notice to Client. Upon notice and to the extent specified by Client, GCA shall, and cause its suppliers and subcontractors to, stop all work related to a Services Agreement.
- In the event that the Client terminates a Services Agreement prior to completion of the Services or GCA terminates a Services Agreement as a result of Client’s material breach of this Agreement, any amounts that have already been paid by Client to GCA shall be applied in satisfaction of the Services rendered to termination, forfeited by Client as agreed damages, and be the property of GCA.
- The obligations under paragraphs 4 (Confidentiality and Privacy), 5 (Limited Warranty), 6 (Limitation of Liability), 7 (Intellectual Property), 8 (Termination), 9 (Dispute Resolution and Governing Law), 10 (Miscellaneous), 13 (Entire Agreement), and any other provision that by its nature extends beyond the duration of this Agreement, which shall coincide with the duration of each Services Agreement, shall survive termination or expiration of this Agreement and continue in full force and effect.
- Dispute Resolution and Governing Law
If any dispute arises between the parties pertaining to this Agreement which the parties are unable to resolve amicably, such dispute shall be submitted to mediation, excepting only any cause of action giving rise to a claim for equitable relief and/or claims related to or involving intellectual property. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario without regard to conflicts of law provisions.
- Severability. If any of the provisions contained in this Agreement shall be held invalid, illegal or unenforceable by competent judicial authority, the validity of the remainder of the Agreement shall be unaffected and such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. The remainder of this Agreement shall remain in full force and effect unless such enforceability materially affects the parties’ rights under this Agreement.
- Notices. Any notice given pursuant to this Agreement shall be in writing and may be effectively given if delivered personally or sent by facsimile or email PDF to the addresses specified in the Services Agreement. Any notice received by the recipient before 4:00 p.m. on a business day in the jurisdiction of the recipient shall be deemed to have been given on that business day. Any notice received by the recipient after 4:00 p.m. on a business day, or any other day, shall deemed to have been given on the next business day.
- Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. A delay or omission by either party to exercise any right or power under this Agreement shall not be construed to be a waiver thereof. A waiver by either party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant in this Agreement.
- Entire Agreement. These Client Services Terms together with the Services Agreement contain the entire agreement between the parties with respect to the Services. This Agreement may only be modified by authorized representatives of the parties in writing. No waiver of any rights under this Agreement will be effective unless in writing and signed by the authorized representative of the waiving party.