Providing Services to Quest Diagnostics
When you provide services to Quest Diagnostics Incorporated or any of its subsidiaries (“Quest Diagnostics”) under an agreement that incorporates the following terms and conditions (“Services Agreement”), the terms below override and take precedence over any irreconcilably conflicting terms elsewhere in the Services Agreement. Without limiting the generality of the foregoing, except for a breach of the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, or applicable state privacy laws, the parties’ sole indemnification right and obligation are set forth in paragraph 7, as limited by paragraph 8.
1. Ownership of Deliverables
Except as otherwise specified, you agree that Quest Diagnostics will have sole right, title and interest in and to any reports, presentations, analyses, designs, diagrams, studies, works made for hire and other work product and deliverables that you prepare, develop, generate or produce under the Services Agreement (collectively, “Deliverables”). Any Deliverable that is an original work of authorship shall be deemed a “work made for hire” as defined by the United States Copyright Act and are protected in accordance therewith. To the extent that such Deliverable is not, by operation of law, a work made for hire, you hereby transfer and assign to Quest Diagnostics all your right, title and interest therein, up to and including copyright.
In addition to any other warranties under the Services Agreement, You warrant that you will perform all services under the Services Agreement in a professional manner and in accordance with applicable laws and the standards of care and diligence normally practiced by recognized professionals in performing services of a similar nature in existence at the time of performance of the services.
3. Independent Contractor Relationship
You and Quest Diagnostics are independent contractors engaged in the operation of their own respective businesses. Neither party is a fiduciary, agent, authorized representative or employee of the other party. Neither party has authority to enter into contracts or assume any obligation for or on behalf of the other party, or to make any warranties or representations for or on behalf of the other party.
You hereby represent, warrant and certify that you have not been convicted of a crime related to healthcare and that neither you nor any of your principals, directors or employees is listed by a federal agency as debarred, excluded or otherwise ineligible for participation in federally funded programs, including without limitation, federally funded healthcare programs such as Medicare and Medicaid. You will notify Quest Diagnostics within 5 days after you become aware that any of forgoing is untrue at any time. Quest Diagnostics will have the right to terminate immediately the Services Agreement upon such notice.
The Services Agreement is personal to you and you may not assign any of your rights (other than the right to receive payment from Quest Diagnostics for services rendered thereunder) or delegate any of your obligations. Quest Diagnostics has the right to assign, at any time upon notice to you, its rights and delegate its obligations under the Services Agreement to a subsidiary or parent company of Quest Diagnostics.
You will be provided or have access to confidential or proprietary information of Quest Diagnostics, including without limitation, financial, sales, marketing, operational and technical information (“Quest Confidential Information”). You will use Quest Confidential Information only in connection with and to the extent reasonably required to perform your services under the Services Agreement. You will limit the disclosure of Quest Confidential Information only to your employees who have a need to know to allow you to properly perform under the Services Agreement. Quest Confidential Information does not include any (a) information that is in your possession without obligation of confidence; (b) information that is now or later becomes publicly available without violation of your obligation herein; and (c) developments you make independent of your receipt of Quest Confidential Information. Your confidentiality obligations continue for 5 years after the expiration or termination of the Services Agreement.
Each party (“Indemnifying Party”) will indemnify, defend and hold harmless the other party (“Indemnitee”) from and against any actual or threatened claims, actions, damages, liabilities, costs and expenses, including without limitation, reasonable attorney’s fees and expenses (collectively, “Losses”), arising out of or in connection with (a) death or bodily injury caused by the Indemnifying Party; (b) damage, loss or destruction of property caused by the Indemnifying Party; and (c) any breach of the Indemnifying Party’s obligations under the Services Agreement. The Indemnitee will promptly give the Indemnifying Party written notice of a Loss, but the failure to give timely notice will not bar indemnification except to the extent that it is prejudicial to the Indemnifying Party. If the Indemnifying Party confirms in writing to the Indemnitee within 30 days of such notice, the Indemnifying Party’s responsibility to indemnify, defend and hold harmless the Indemnitee, the Indemnifying Party may elect to assume control of the compromise or defense at its expense and by counsel it selects, which counsel shall be reasonably acceptable to the Indemnitee. The Indemnifying Party will inform the Indemnitee of all material developments and will not settle or compromise or consent to the entry of any judgment, unless it includes an unconditional release of the Indemnitee. This indemnification obligation survives the expiration or termination of the Services Agreement.
8. Limitation of liability
Except for Losses arising from willful misconduct or death or personal injury, your liability to Quest Diagnostics under the Services Agreement, whether at law or in equity and for any cause of action, will be limited to the average annual amount of fees payable to you under the Services Agreement, provided that if the Services Agreement is for a term of less than one year, then your liability to Quest Diagnostics will be limited to the aggregate amount of fees payable to you under the Services Agreement.
Quest Diagnostics will pay sales and use taxes you are required to collect from Quest Diagnostics that arise directly in connection with the receipt of services from you under the Services Agreement, provided that you properly invoice Quest Diagnostics for such taxes. You will cooperate with Quest Diagnostics to qualify the transactions for any provisions of applicable law that reduce the amount of otherwise applicable sales and use taxes or that provide an exemption from sales and use taxes. Your invoice will separately identify the services, if any, subject to sales and use taxes from services not subject to sales and use taxes and will indicate the jurisdictions, if any, for which sales and use tax is collected, the amount of tax collected by jurisdiction, and the rate of tax by jurisdiction. Quest Diagnostics will be entitled to deduct from any payments to you under the Services Agreement any taxes that Quest Diagnostics is required by law to withhold and remit on your behalf.
10.Quest Diagnostics Policies
Without limiting any of your other obligations, you shall, and shall ensure that your employees and contractors shall, at all times in performing their obligations under the Services Agreement: (a) act consistently with the principles of Quest Diagnostics’ Code of Business Ethics set out at www.questdiagnostics.com, as it may be amended from time to time; and (b) if you have knowledge or a good faith belief that Quest Diagnostics or any of its employees or representatives is violating or has violated any law, regulation, company policy or ethical guideline, promptly report the information to the Vice President, Compliance or the Senior Vice President and General Counsel of Quest Diagnostics, who may be reached through Quest Diagnostics’ website.