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General Terms and Conditions |
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Applicable To All Engagements.
These terms and conditions shall govern all of Client’s engagements of Medrisk Consultants, Inc., an Illinois corporation (“Medrisk”). From time to time Medrisk may change these terms and conditions and the changes shall apply to engagement first occurring after the change.
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| 2. |
Particular Engagements.
In addition to these general terms and conditions, each particular engagement shall also be governed by the terms and conditions of Medrisk’s engagement letter pertaining to that engagement. The provisions of Medrisk’s engagement letter pertaining to a particular engagement shall apply to that engagement if there is any conflict between these terms and conditions and the provisions of the engagement letter.
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Client.
Client shall be the attorney or law firm who engaged Medrisk as indicated on Client’s letterhead or email initially requesting or inquiring about Medrisk’s services, or absent such letter or email, on Medrisk’s invoice.
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Commencement of Engagement.
Following Client’s request for or inquiry regarding Medrisk’s assistance with a particular matter, Medrisk shall send Client an engagement letter if Medrisk desires to offer its services to Client regarding that matter. Client shall not be deemed to have engaged Medrisk for a particular matter until Client acknowledges its acceptance of Medrisk’s engagement letter for that matter.
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Acceptance of Expert.
By engaging Medrisk, Client thereby acknowledges that Client is satisfied with the qualifications of the expert Medrisk identifies to perform the engagement.
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Delivery of Records.
Client shall be responsible to deliver to Medrisk all documents Medrisk needs to perform its engagement, excluding documents already in Medrisk’s possession and generally available medical research or reference materials. Client acknowledges that the accuracy of the performance of Medrisk and its experts at least partially depends on accuracy and completeness of the records Client delivers to Medrisk.
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Subject Matter, Fees, and Expenses.
The subject matter and fees for each engagement shall be as stated in Medrisk’s engagement letter pertaining to that engagement. In addition, Client shall reimburse Medrisk for all expenses that Medrisk incurs in performing its engagement, plus an administrative fee equal to ten percent of the actual expense. Medrisk’s fees shall include Medrisk’s time spent reviewing documents, preparing reports, and communications between Medrisk and Client, whether by telephone or email. Medrisk may increase its fees on at least 30 days prior notice to Client. Travel time for each engagement shall be reimbursed at one-half the hourly rate then pertaining to that engagement. Medrisk shall bill in 12 minute increments, rounded to the next highest increment, with a minimum charge of 12 minutes. Medrisk’s invoices shall briefly describe the tasks performed, the dates of performance, and the time spent for each task. Medrisk shall bill Client monthly by an invoice, and Client shall pay Medrisk within 10 days after the invoice date. If Medrisk requests a retainer, Client shall by payment to Medrisk fully restore the retainer whenever the balance of the retainer is less than 90 percent. Client shall be responsible to pay Medrisk even if Client is then serving as an agent, representative, or attorney for a third party principal whose identity Client disclosed to Medrisk, and without regard to the financial arrangement between Client and Client’s principal.
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| 8. |
Medrisk Guarantee.
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a. Fee Refund.
Medrisk guarantees that Medrisk’s expert for each engagement will utilize the skill to perform that engagement customarily found amongst similar experts. If Medrisk’s expert fails to utilize that skill level, or if Medrisk or its expert is negligent or otherwise misperforms, as Client’s sole remedy, Medrisk will refund the fees that Client paid Medrisk for that expert’s time up to the date of notice of such failure, provided that Client informs Medrisk in a writing specifically describing the failure, negligence, or misperformance within 21 days after the date on which the failure, negligence, or misperformance first occurs. Medrisk shall not otherwise be obliged to refund a Client’s fees, and the failure, negligence, or misperformance of Medrisk or its expert shall not excuse Client’s obligation to pay Medrisk’s expenses.
b. Opinion or Outcome Not Determinative.
Medrisk does not guarantee that the findings or opinion of Medrisk’s expert will be favorable to Client or the matter for which Client engaged Medrisk, and Medrisk does not guarantee the results or outcome of any matter. Except as provided above concerning the skilled performance of Medrisk’s experts, Client’s obligation to pay Medrisk is not dependent or contingent on the findings or opinions of Medrisk’s experts or on the results or outcome of any matter for which Client engages Medrisk.
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| 1. |
Late Payments.
Amounts past due shall earn ten percent annual interest. If any payment for any engagement is past due: (a) Medrisk may cease performance on or withdraw from one or more then pending engagements, and (b) Medrisk may retain all the documents and withhold all the reports pertaining to one or more engagements until Client fully pays Medrisk.
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| 2. |
No Minimum.
Client is not required to request or accept a minimum quantity or any particular type of engagement with Medrisk and Medrisk is not required to offer a minimum quantity or any particular type of engagement with Client.
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| 3. |
Time for Performance.
Notwithstanding Client’s deadlines, the time for Medrisk’s experts to perform shall be subject to their other professional obligations and circumstances beyond their control. The time for payment of any amount due Medrisk shall not be delayed for any reason.
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| 4. |
Contract.
For each engagement, the phrase “this Contract” as used herein means these terms and conditions and Medrisk’s engagement letter for the particular engagement pertaining to that engagement letter.
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| 5. |
No Third Party Beneficiaries.
The only parties to this Contract are Client and Medrisk. Client’s principals are not third party beneficiaries of Client’s engagement of Medrisk or of the terms and conditions of any engagement.
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| 6. |
Notice.
All notices given under this Contract shall be in writing and shall be delivered by commercial courier; facsimile; or registered or certified mail, return receipt requested, to the parties at their principal offices or at such other address as from time to time directed in a notice by a party. Delivery shall be deemed to have occurred at the date and time of actual receipt or at the date and time at which a party refuses to accept delivery. A party may change its address or facsimile number by delivering notice of the change to the other parties.
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| 7. |
Damages for Breach.
For any breach of this Contract, the parties waive all claims for consequential, incidental, and punitive damages, including damages for lost profits and lost goodwill. A party shall have 21 days to cure any breach of this Contract, excluding breaches for nonpayment, and thereafter the other party may terminate this Contract within 5 days after the cure period expires. Excluding nonpayment, if a party does not timely terminate this Contract, a party shall be deemed to have waived the particular instance of the breach. Medrisk’s liability for an uncured breach of this Contract shall not exceed the amount that Client paid Medrisk at the time of the breach for the engagement that is the subject of the breach. Client’s liability for an uncured breach of this Contract shall not exceed the unpaid amount that Medrisk anticipated earning for the entire engagement that is the subject of the breach.
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| 8. |
Enforcement.
All disputes concerning this Contract shall be governed by the laws of the State of Illinois without applying conflict of law principles that would result in applying the law of any state other than Illinois. The parties, in all disputes between them, consent and submit to the exclusive jurisdiction and the exclusive venue of the state courts located in DuPage County, State of Illinois, and the exclusive jurisdiction and the exclusive venue of the federal courts located in Cook County, State of Illinois, and the parties waive all claims that such venue is improper or inconvenient. In all lawsuits to enforce or interpret this Contract the parties waive all rights to a jury trial, and in all such actions, including actions for injunctions, declaratory judgments, or specific performance, all appellate litigation, and in all proceedings to enforce or collect an order or judgment, the prevailing party shall recover from the other party the prevailing party’s costs and expenses, including the fees of its attorneys, experts, and consultants. Unless specified by the court, payment of the prevailing party’s costs and expenses shall be due within 7 days after the award thereof. All amounts that are unpaid and past due, including the prevailing party’s costs and expenses, shall earn simple interest at the rate of 10 percent per annum or the highest lawful rate, whichever is less. Notwithstanding the foregoing jurisdiction and venue restriction, the party in whose favor a judgment with respect to this Contract is entered shall be entitled to enforce that judgment in any jurisdiction and in any venue.
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Severability and Modification. If a court determines that any provision of this Contract is unenforceable, the balance of this Contract shall nevertheless remain enforceable. The parties shall modify the unenforceable provision consistent with the court’s ruling so that is becomes enforceable while remaining as similar as possible to the original provision.
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No Duress.
The parties represent and warrant to each other that they entered into this Contract of their own free will and without duress.
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Interpretation.
The parties intend that the “four corners” rule shall be applied in construing this Contract, and that the interpretation of this Contract shall be derived only from the provisions hereof, without resort to course of dealing, usage of trade, course of performance, or any other extrinsic evidence, and shall not be construed in favor of or against either party. Whenever appropriate under the circumstances, within this Contract: (a) the plural of any word shall mean the singular; (b) the singular of any word shall mean the plural; (c) “and” shall mean “or”; (d) “or” shall mean “and”; (e) “any” shall mean one, more than one, or all; (f) “all” shall mean any, one, or more than one; (h) words referring to persons shall include associations, cooperatives, corporations, firms, general and limited partnerships, limited liability companies, natural persons, public agencies, sole proprietors, trusts, and all other entities; (g) the words "include," "including," and similar words shall be construed as if followed by the phrase "without limitation".
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Consideration.
This Contract constitutes the entire and exclusive consideration for the parties’ transaction that is the subject of this Contract.
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Integration.
This Contract and contains and constitute the final, entire, and exclusive statement of the terms, provisions, understanding, and arrangement between the parties regarding the transaction that is the subject of this Contract. This Contract supersedes all prior and contemporaneous negotiations, representations, and agreements, if any, of any kind, whether electronic, written, or oral, between the parties regarding the transaction that is the subject of this Contract.
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No Reliance.
In entering into and performing under this Contract, no party has made or relied on, or will rely on, any statement, representation, or promise that is not expressly set forth or referred to within this Contract or within any document that is not attached to or expressly referred to by this Contract.
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No Additional Obligations.
Nothing within this Contract is or will be intended by the parties to impose or create, by implication or otherwise, any requirement, duty, or obligation on either party, of any kind or nature whatsoever, that is not expressly set forth within this Contract.
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No Modification.
Except as provided by this Contract regarding severability, this Contract shall not be modified except by a writing signed or acknowledged by both parties. A party’s conduct shall not modify this Contract. A party’s failure or forbearance to require strict compliance with this Contract, whether or not occurring on multiple occasions, shall not thereby modify this Contract, shall not excuse future compliance, and shall apply only to the specific instance of failure or forbearance.
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Waiver.
Except as otherwise ordered by a court other than at a party’s request, the parties waive all rights to use or introduce parol evidence or extrinsic evidence for any purpose with respect to this Contract, including: (a) to modify, contradict, interpret, or otherwise explain any provision within this Contract, (b) to prove that any provision within this Contract is ambiguous, or (c) to prove any condition precedent or condition subsequent for this Contract that is not expressly set forth: (i) within this Contract or within any document that is not attached to or expressly referred to by this Contract. The parties waive all claims for fraud-in-the-inducement with respect to this Contract, and the parties waive all claims contrary to any recital or covenant within this Contract.
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Additional Instruments.
The parties shall execute such instruments and perform such acts as are necessary to cause the transaction that is the subject of this Contract to occur and to otherwise implement the provisions of this Contract. The parties hereby appoint each other as their attorneys-in-fact to sign such instruments and to perform such acts if a party fails or refuses to do so.
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Survival of Obligations.
The parties’ obligations that continue or arise after the termination of this Contract closing shall survive the termination of this Contract.
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Assignment, Successors and Assigns.
The parties may assign their rights but not their obligations under this Contract to their respective successors and assigns.
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Authority.
Whomever engages Medrisk for Client represent and warrants to Medrisk that they are authorized to so engage Medrisk and personally guarantees Client’s performance of Client’s obligations under this Contract.
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