TheraClosure Terms & Conditions

1. Applicability

(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.

2. Performance of Services

(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.  

3. Client's Acts or Omissions

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.

4. Price

(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.

5. Payment Terms

(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.

6. Limited Warranty

(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.

7. Limitation of Liability

(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.

8. HIPAA 

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.

9. Compliance with Law

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. 

10. Termination

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.

11. Waiver

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.

12. Confidential Information

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.

13. Force Majeure

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.

14. Assignment

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.

15. Relationship of the Parties

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.

16. No Third-Party Beneficiaries

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.

17. Governing Law

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.

18. Submission to Jurisdiction

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.

19. Notices

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.