Consulting Services Agreement

pMDsoft, Inc. (the “Company”) and  ___________________ (the “Consultant”) enter into this consulting services agreement (the “Agreement”) as of  ___________________ (the “Effective Date”) contingent upon a background check. All references hereafter to “Party” shall refer to Consultant and/or Company individually, and all references to the“Parties” shall refer collectively to Consultant and Company.  

The Parties agree as follows:

1.    Services.  Consultant will perform services in the area of  ___________________  (the“Services”).  The Parties may modify the scope of Services as necessary or appropriate; provided, however, that they may do so only in a written agreement signed by Consultant and Company with such modification or amendment specifically referencing this Agreement.

2.    Term.   This Agreement shall continue in effect until Consultant completes the Services or until either Party terminates this Agreement in accordance with Section 16.      

3.    Right to Perform Services. Consultant represents that he/she has no other agreements, relationships, or commitments to any other person or entity that conflict with Consultant’s right to execute this Agreement or to perform Services hereunder. Consultant further agrees that Consultant will at all times in performing Services under this Agreement comply with all applicable laws and licensing requirements and will perform such Services in a manner that does not violate any contractual obligations Consultant owes to any other person or entity.

4.    IndependentContractor Status. The Parties intend to establish through thisAgreement and to thereafter maintain at all times during which Consultant performs Services pursuant to this Agreement an independent contractor relationship. The Parties do not intend to create a relationship in which Consultant, or any employee or agent of Consultant, qualifies as an employee, agent, joint venture or partner of theCompany. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the Company and Consultant or any employee or agent of Consultant or for any other purpose. Neither Consultant nor any employee or agent of Consultant will participate in any benefits provided by the Company, including but not limited to pension plans, bonus, or similar benefits that the Company may provide its employees. Consultant shall retain the right to contract to provide services for others during the terms of this Agreement.  

5.    Compensation and Payment.  Consultant shall receive compensation for the Services on a pay per unit basis. The unit rate is $ ______ per chart successfully completed, paid on a semi-monthly basis on the 18th and the 3rd of each month. Consultant shall invoice the Company for all Services, expense reimbursement requests, and other payments due under this Agreement no later than fourteen (14) days following the close of the calendar month for which he/she seeks payment. Company will pay such invoices no later than 30 days from the date of receipt.

6.     Expenses.  The Company shall reimburse reasonable expenses incurred by Consultant in connection with the performance of Services under this Agreement, including travel expenses when required.

7.    Equipment & Supplies. Except as otherwise specifically provided in the Scope of Work, Consultant will furnish all equipment, tools, supplies and materials used to provide the Services required by this Agreement. 

8.    Method of Performing Services. Consultant will determine the method, details, and means of performing the Services consistent with the requirements set forth in the Scope of Work and the Company’s business needs.  Consultant agrees that if at any time during the term of this Agreement the manner in which the Company assigns work to him/her, manages his/her performance of Services, or otherwise engagesConsultant restrains Consultant in his/her ability to operate independently and with the limited oversight, control, direction intended by this Agreement, Consultant shall promptly notify Vice President of Software Engineering so that the Company can make necessary and appropriate adjustments.

9.    TimeDevoted to Work.  In performing the Services pursuant to this Agreement, Consultant shall retain complete discretion with respect to the hours and days on which Consultant performs such Services; provided, however, that Consultant shall comply with the average minimum requirement set forth in the job description and shall make himself/herself reasonably available to Company employees within the working hours agreed upon. Consultant will perform the Services in a professional manner and in accordance with applicable professional standards.  

10.  Place of Work. Consultant shall perform the Services required by this Agreement at any place or location as Consultant shall determine; provided, however, that if the nature of a particular project, task or assignment set forth in the Scope of Work requires Consultant’s appearance or performance at a particular location Consultant shall perform such Service(s) at the specified location(s). The Company will not provide an office or work location to Consultant or to any employee or agent of Consultant.

11.  Professional & Business Licenses, Permits, and Certificates. Consultant represents and warrants thatConsultant and all employees, contract personnel, or agents of Consultant performing or assisting in the performance of the Services will comply with all federal, state, and local laws requiring licenses, business permits, and certificates required to carry out the services to be performed under this Agreement.

12.  Insurance. Consultant acknowledges that as an independent contractor and not an employee of the Company, the Company will not maintain any workers’ compensation coverage for Consultant or any personConsultant employs or retains to assist in the provision of Services under this Agreement. Consultant shall at all times during the term of this Agreement maintain insurance in accordance with applicable laws for herself and for all persons employed by Consultant who assist in the performance of Services under this Agreement.

13.  State and Federal Taxes. Because this Agreement establishes an independent contractor relationship between theCompany and Consultant, the Company will not withhold from any amounts payable to Consultant under this Agreement any state or federal taxes or other withholdings applicable to payment of wages to an employee. Consultant will at all times have full and sole responsibility for ensuring compliance with all federal, state, and local tax laws. For clarification:

a)    The Company will not withhold FICA (Social Security) from Consultant’s payments;

b)   The Company will not make state or federal unemployment insurance contributions on Consultant’s behalf;

c)    The Company will not withhold state or federal income tax from payment to Consultant;

d)   The Company will not make disability insurance contributions on behalf of Consultant; and

e)   The Company will not obtain workers’ compensation insurance on behalf of Consultant.

14.  Indemnification. Consultant shall indemnify, defend and hold the Company harmless from and against:  (a) any and all liability incurred by the Company arising out of the Consultant’s performance of Services under this Agreement or the performance of Services by any employee or agent of Consultant; (b) any and all liability incurred by the Company as a result of any breach of any term of this Agreement by Consultant; and (c) any and all costs and expenses, including reasonable legal expenses, incurred by or on behalf of Company in connection with the defense of such claims.

15.  Additional Agreements Governing Consultancy.  Concurrently with Consultant’s execution of this Agreement, Consultant shall execute the pMD Confidential & Proprietary Information Agreement (the “Confidentiality Agreement”) and shall return the original signed agreement to the Company along with this signed Agreement.

16.  Termination of Agreement.

a)    This Agreement shall terminate automatically on  ___________________  or upon the occurrence of any of the following events:

•     Bankruptcy or insolvency of either Party;

•     Sale of the business of either Party;

•     Death or disability of Consultant (“Disability” means any mental or physical incapacity of Consultant that prevents Consultant from performing the duties specified in this Agreement for thirty (30) days, whether or not consecutive, out of the term of this Agreement);

•     Theft, fraud embezzlement, dishonesty or other similar behavior by Consultant or any employee or agent of Consultant; or

•     Any habitual neglect of duty of Consultant in discharging any of his/her duties under this Agreement.

b)   In the event of a material breach by either Party, the non-breaching Party may terminate by delivering written notice to the breaching Party no later than five (5) days prior to the effective date of termination, with such notice delivered pursuant to Paragraph 16, below.

c)    Either Party may terminate the Agreement for any reason by delivering written notice to the other Party no later than fifteen (15) days prior to the effective date of termination, with such notice delivered pursuant to Paragraph 16, below.  

17.  Notices.  Any notice, demand, request, consent, approval, or other communication that either Party desires or must provide to the other Party or to any other person shall be in writing and either served personally or sent by a responsible overnight courier(e.g., Federal Express) or by prepaid, certified first-class U.S. mail, return receipt requested, or via electronic communication (including e-mail and Internet or intranet websites).  A Party shall send such notice as follows:

a)    Notice to Consultant:

b)   Notice to Company:

pMDsoft, Inc.

Philippe d’Offay, President

548 Market Street, #94509

San Francisco, CA 94104

pdoffay@pmd.com

Notices shall be deemed communicated upon receipt if personally delivered, or the next business day if sent by responsible overnight courier or electronic correspondence, or within seventy-two (72) hours from the time of mailing if mailed as provided herein.

18.  Assignment.  This Agreement shall be assignable to, and shall inure to the benefit of, the Company’s successors and assigns, including, without limitation, successors through merger, name change, consolidation, or sale of a majority of the Company’s stock or assets.  Consultant may not assign this Agreement to any person or entity without the written authorization of the Company’s President.

19.  No Waiver.  No waiver by either Party of any breach or default of any of the covenants or agreements herein contained shall qualify as or effect a waiver as to any subsequent or similar breach or default unless in writing, signed by the Party or Parties against whom enforcement of the wavier is sought.

20.  Arbitration of Disputes. The Parties agree to resolve by arbitration any dispute, claim or controversy arising out of or relating to the Company’s retention of Consultant, this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate. The arbitration shall take place in San Francisco, California before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The Parties shall each pay one half of the arbitration costs, including but not limited to the arbitrator fees and JAMS administrative costs, subject to recover as a prevailing party as provided in this Agreement. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude either Party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

21.  Prevailing Party’s Fees. In any dispute between the Parties resulting in arbitration or litigation, the Party substantially prevailing shall recover from the other Party all reasonable fees, costs and expenses including, without limitation, attorneys’ fees, arbitrator costs, filing fees, and other costs/expenses. Any award, judgment or order entered in such action shall specifically provide for the recovery of attorneys’ fees and costs incurred in enforcing such award or judgment and an award of prejudgment interest from the date of the breach at the maximum rate allowed by law. The term “prevailing Party” shall mean the Party determined in the proceeding to have prevailed or who prevails by dismissal, demurrer, default, judgment or otherwise.

22.  Entire Agreement. This Agreement, the Exhibit hereto, and the Confidentiality Agreement comprise the entire agreement between the Company and Consultant. The Parties may not modify, alter, or amend the Agreement in any manner other than in a written agreement signed by both Parties. This Agreement supersedes and replaces all communication, discussions, representations and agreements made by the Parties prior to execution of this Agreement. Each Party has had this Agreement reviewed by independent legal counsel and the Parties agree that neither Party shall qualify as the drafting party for the purpose of construing the Agreement or any provision in the Agreement against the drafting party for purposes of contract interpretation or for any other purpose.  

23.  Duplicate Counterparts; ElectronicSignatures. The Parties may execute this Agreement by electronic signature (including but not limited DocuSign) and they may execute it in duplicate counterparts, each of which shall qualify as an original; provided, however, such counterparts shall together constitute only one instrument. A counterpart delivered by facsimile transmission or PDF shall constitute an original counterpart. The Agreement shall take effect on the date on which both Parties have signed and dated the Agreement.

24.  Severability. The provisions of this Agreement are severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions or parts thereof shall nevertheless be binding and enforceable. If any provision of this Agreement is deemed unenforceable, the Company and Consultant agree that an arbitrator or a court of competent jurisdiction shall reform such provision to the extent necessary to render it enforceable to the maximum extent permitted by law.  

25.  Choice of Law. The laws of the State of California shall govern this Agreement State of California without regard to conflict of law principles. The rule of construction requiring that any ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement.