[COMPANY NAME]

PHYSICIAN CONSULTING AGREEMENT

THIS AGREEMENT (the Agreement) is made and entered into as of ______________
(the Effective Date), by and between ______________________ (the Company) and
_______________ (the Consultant).
WHEREAS, the Company desires consulting and similar services relating to the
Companys business and products; and
WHEREAS, the Consultant desires to contract with the Company to perform such
services;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter recited, the
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Project. The Consultant shall provide services to the Company, as specified below, for
a period commencing on the Effective Date and concluding upon the completion of the project
described in the Statement of Work attached hereto as Exhibit A (the Project), unless
terminated earlier in accordance with Section 9 of this Agreement.
2. Scope of Work. The Consultant shall perform the services set forth in the Statement
of Work attached hereto as Exhibit A (the Services). In addition to the initial Statement of
Work, the Company may request that Consultant perform additional services, as needed,
throughout the term of this Agreement. Any additional services shall be detailed in a Statement of
Work as agreed between the Company and the Consultant and shall be governed by the terms and
conditions of this Agreement.
3. Consulting Fees and Expenses.
(a) Consulting Fees. The compensation paid pursuant to this Agreement is
calculated based on fair market value for the type of service(s) and the Consultants experience
and credentials. The Company agrees to pay the Consultant for the Services in accordance with
the payment schedule set forth in the Statement of Services attached hereto as Exhibit A.
(b) Expense Reimbursement. The Company agrees to reimburse the Consultant
for all reasonable and modest travel expenses incurred by the Consultant in conjunction with the
Services in a manner consistent with the Companys standard reimbursement policy. Consultant
will not incur more than $250.00 in the aggregate (or $100 individually) of such costs without the
prior written consent of the Company.
4. Payments. Unless expressly set forth in the applicable Statement of Work, Consultant
will submit an invoice with receipts for all Services performed under the Statement of Work. The
invoice must contain a complete and accurate description of the Services performed, deliverables
provided, date(s) of Services, actual time spent (if billed on an hourly basis), and the Consulting
Fees due, in the form attached hereto as Exhibit B or substantially similar format. Consultant
must sign the invoice and verify in writing his/her performance of the Services. Invoices must be
117130111 v1

submitted to Company within thirty (30) calendar days of the last date of the Services performed.
The Responsible Manager must approve the invoice before such invoice is submitted for payment
by Company. The Company shall pay each invoice not subject to good faith dispute and submitted
hereunder within 30 days of receipt thereof.
5. Institutional Obligations. The Company acknowledges that the Consultant is a full
time faculty member at _______________________________________ (the Institution) and is
subject to the policies of the Institution regarding outside employment and consulting activities,
conflicts of interest and intellectual property. A copy of the Institutions policies regarding outside
employment and consulting activities, conflicts of interest and intellectual property is attached as
Exhibit E hereto. If the Consultant is required by the Institution, pursuant to applicable guidelines
or policies, to make any disclosure or to take any action that conflicts with the services to be
provided by the Consultant hereunder or that is contrary to the terms of this agreement, the
Consultant will promptly notify the Company of such obligations, specifying the nature of such
disclosure or action and identifying the applicable guideline or policy under which disclosure or
action is required, prior to making such disclosure or taking such action.
6. Noninterference. During the term of this Agreement, and for two years thereafter, the
Consultant shall not directly or indirectly, without the prior written consent of the Company,
either on the Consultants own behalf or on behalf of any other party: (i) disrupt, damage, impair
or interfere with the business of the Company, whether by way of (a) interfering with the
Companys relationship with, or raiding, the Companys directors, officers, employees, agents, or
consultants (including, without limitation, any other party who renders services to the Company),
or (b) in any manner attempting to solicit or recruit any such persons to discontinue its
relationship with the Company; or (ii) use the Companys Confidential Information, as defined in
Section 6 below, to disrupt, damage, impair or interfere with the Companys relationship with
vendors, suppliers, partners, customers, clients or other parties with which it does business,
including, without limitation, attempting to persuade, solicit, recruit, encourage or induce any
such persons to discontinue its relationship with the Company.
7. Confidentiality.
(a) Definition. For purposes of this Agreement, Confidential Information
means any information related to any aspect of the business of the Company (including any person
or entity directly or indirectly controlled by or controlling the Company, or in which any of the
aforesaid have at least a 50% interest) which is either (a) information not known by the trade
generally, even though such information may be disclosed to one or more third parties pursuant to
agreements entered into by the Company, or (b) is proprietary information of the Company,
whether of a technical nature or otherwise. Confidential Information includes, but is not limited
to, Inventions, as defined in Section 7 below, trade secrets, original works, findings, reports,
disclosures, processes, systems, methods, formulae, procedures, concepts, compositions,
techniques, drawings, models, diagrams, flow charts, research, data, regulatory information,
clinical analysis, devices, machinery, copyrights, copyright applications, patents, patent
applications, trademarks, trademark applications, intellectual property, instruments, materials,
products, patterns, compilations, programs, techniques, sequences, designs, research or
development activities and plans, specifications, documentation, algorithms, software, computer
programs, source code, object code, mask works, costs of production, prices and other financial
data, volume of sales, promotional methods, marketing plans and techniques, identities of and
2

information regarding customers, clients and personnel, lists of vendors or suppliers, pricing
policies, business plans, business opportunities, financial statements and other financial
information. Confidential Information also includes the confidential or proprietary information of
the Companys consultants, vendors, suppliers, partners, customers, clients and other parties with
which it does business.
(b) Nondisclosure. The Consultant acknowledges that Confidential Information is
of great value to the Company. Accordingly, the Consultant agrees to hold all Confidential
Information in confidence and not disclose, use, copy, publish, summarize or remove from the
premises of the Company any Confidential Information.
(c) Return of Confidential Information. Upon the expiration or termination of
this Agreement, the Consultant agrees (i) to promptly deliver to the Company all papers, records,
data, notes, drawings, files, documents, samples, devices, products, equipment and other
materials, including any and all copies and in whatever form, relating to the Company that the
Consultant possesses or creates, whether or not confidential or proprietary, (ii) not to disclose,
use, copy, publish, summarize or remove from the premises of the Company any Confidential
Information, and (iii) to promptly execute and deliver to the Company the Termination
Certificate attached hereto as Exhibit C.
(d) Compelled Disclosure. In the event the Consultant believes that they are
legally compelled to disclose any Confidential Information, the Consultant will provide the
Company with prompt notice, prior to the disclosure, so that the Company may assist the
Consultant in obtaining a protective order or other appropriate remedy. In the event that such
protective order or other remedy is not obtained, the Consultant will disclose only that portion of
the Confidential Information that the Company and the Consultant mutually determine is legally
required to be disclosed.
(e) Obligations to Third Parties. The Consultant understands and acknowledges
that the Company does not want to receive any information, confidential or otherwise, from the
Consultant which is in breach of Consultants obligation(s) to and third party. Accordingly, the
Consultant shall not disclose to the Company or use in the performance of any duties for Direct
Flow Medical any confidential information in breach of an obligation to any third party.
8. Inventions and Original Works of Authorship.
(a) Definition. For purposes of this Agreement, Inventions means any and all
ideas and discoveries, including, without limitation, inventions, trade secrets, original works,
findings, reports, disclosures, processes, systems, methods, formulae, procedures, concepts,
compositions, techniques, drawings, models, diagrams, flow charts, research, data, regulatory
information, clinical analysis, devices, machinery, intellectual property, instruments, materials,
products, patterns, compilations, programs, techniques, sequences, designs, specifications,
documentation, algorithms, software, computer programs, source code, object code and mask
works, as well as improvements thereof or know-how related thereto, whether copyrightable or
patentable or not, relating to the business and/or field of interest of the Company (including any
person or entity directly or indirectly controlled by or controlling the Company, or in which any of
the aforesaid have at least a 50% interest).

(b) Ownership and Assignment. All Inventions and all original works of
authorship (including without limitation, software, computer programs, source code, object code
and the documentation and notes related thereto) made or conceived by the Consultant during the
term of this Agreement shall be works made for hire and shall become and remain the sole and
exclusive property of the Company. The Consultant shall promptly notify the Company in writing
of all Inventions and original works of authorship so conceived or made by the Consultant. To
the extent that ownership of such Inventions and original works of authorship does not
automatically vest in the Company, the Consultant hereby transfers and assigns to the Company all
right, title and interest in and to the same, whether or not patent or copyright applications are filed
thereon.
(c) Power of Attorney. If the Company is unable, after exercising reasonable
diligence, to secure the Consultants signature to apply for or to pursue any application for any
United States or foreign letters patent or copyright registrations covering Inventions or original
works of authorship assigned to the Company pursuant to Section 7(b), then the Consultant
hereby irrevocably designates and appoints the Company and its duly authorized officers and
agents as the Consultants agent and attorney in fact, to act for and on the Consultants behalf and
stead to execute and file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent or copyright registrations thereon.
(d) Further Assurances. The Consultant shall execute such documents as the
Company shall reasonably require to evidence and confirm the transfer of rights to the Company
made under this Agreement.
9. Termination. Both the Company and the Consultant shall have the right to terminate
this Agreement at any time upon 30 days written notice to the other. In the event of any
termination of this Agreement, the Company shall make payments to the Consultant for all work
performed in accordance with the terms and conditions of this Agreement up to the date of
termination. The Consultant shall be entitled to payment only for compensation and expenses
earned or incurred through the date of termination. The Consultant shall immediately return to
the Company, without limitation, all documents, drawings and any other items of whatever nature
supplied to the Consultant by the Company or owned by the Company pursuant to this
Agreement.
10. Survival. Each and all of the terms, provisions and/or covenants of each of Sections 5
through 22 of this Agreement shall, for any and all purposes whatsoever, survive the termination
of this Agreement.
11. Independent Contractor/Taxes. Consultant is not an agent or employee of the
Company and has no authority to act on behalf of the Company or to otherwise obligate or bind
the Company by contract or otherwise. Except as required by a final determination by the
Internal Revenue Service or state taxing authority and upon due notice to the other party, the
Consultant and the Company agree to treat the Consultant as an independent contractor for tax
purposes and to file all tax and information returns and pay all applicable taxes on that basis. The
Consultant agrees to indemnify, defend and hold the Company harmless from any liability for, or
assessment of, any claims or penalties with respect to such withholding taxes, labor or
employment requirements, including any liability for, or assessment of, withholding taxes imposed

on the Company by the relevant taxing authorities with respect to any compensation paid to the
Consultant or the Consultants partners, agents or its employees.
12. The Consultants Representations and Duties
(a) Qualifications and Performance. The Consultant represents and warrants that
they have the knowledge, skills, and experience necessary to provide the Services hereunder and
the Consultant shall perform all Services in accordance with all products proper use, labeling, and
instructions. The Consultant shall at all times provide the Services in a professional manner
consistent with the highest ethical standards.
(b) Authorization. The Consultant represents and warrants that the Consultant has
informed their employer of the terms of this Agreement, including the Services and compensation
to be provided hereunder, and has secured all necessary licenses, certificates, permits, and
permissions required to perform the Services. The Consultant shall perform all Services in
compliance with all applicable policies, procedures, rules and regulations of the institution(s), if
any, at which the Services are performed.
(c) Insurance. The Consultant shall, at the Consultants expense, carry and
maintain adequate liability insurance to protect both the Consultant and the Company from any
and all claims of any nature for damage to property, or for personal injury, including death, which
may arise from the Consultants performance of this Agreement, including but not limited to, any
action against the Consultant regarding the practice of medicine and/or actions of negligence
committed hereunder. The Consultant shall provide the Company with reasonable evidence of
such insurance upon request.
13. Third Party Contracts.
(a)
Conflicts with this Agreement. The Consultant represents and warrants
that (i) there are no other contracts to assign Inventions that are now in existence between any
other party and the Consultant, and (ii) the Consultant has no employments, consultancies or
undertakings which would restrict or impair the Consultants performance of this Agreement. The
Consultant shall not improperly use or disclose any proprietary information or trade secrets of any
former or current employer or other third party. The Consultant shall not bring onto the premises
of the Company any unpublished documents or any property belonging to any former or current
employer or other third party unless consented to in writing by such employer or such other third
party. If, in the course of the Consultants performance of this Agreement, the Consultant
incorporates a prior Consultant-owned invention into a Company product, process or machine,
the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual,
worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have
made, modify, use and sell such prior invention. The Consultant will not knowingly infringe upon
any copyright, patent, trade secret or other property right of any former client, employer or third
party in the performance of the Services required by this Agreement. Further the Consultant
represents that they will not enter into any other agreement or service contract that would restrict
or impair the Consultants performance of this Agreement.
(b)
Consulting or Other Services for Competitors. The Consultant represents
and warrants that the Consultant does not presently perform or intend to perform, during the term
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of the Agreement, consulting or other services for, or engage in or intend to engage in an

employment relationship with, companies whose business(es) or proposed business(es) in any way
involve products or services which would be competitive with the Companys products or
services, or those products or services proposed or in development by the Company during the
term of this Agreement (except for those companies, if any, listed on Exhibit D attached hereto).
If, however, the Consultant decides to do so, the Consultant agrees that, in advance of accepting
such work, the Consultant will promptly notify the Company in writing, specifying the
organization with which the Consultant proposes to consult, provide services for, or become
employed by and to provide information sufficient to allow the Company to determine if such
work would conflict with the terms of this Agreement, including Section 6 hereof, the interests of
the Company or further services which the Company might request of the Consultant. If the
Company determines that such work conflicts with the terms of this Agreement, the Company
reserves the right to terminate this Agreement immediately in accordance with Section 8 hereof
and, in the event of termination pursuant to this Section, the Consultant hereby waives the right of
30-day notice of said termination.
14. Assignment. The rights and liabilities of the parties hereto shall bind and inure to the
benefit of their respective successors, heirs, assigns, executors and administrators, as the case may
be; provided, however, that as the Company has specifically contracted for the services to be
provided by the Consultant hereunder, the Consultant may not assign or delegate the Consultants
obligations under this Agreement either in whole or in part without the prior written consent of
the Company.
15. Compliance
(a) Anti-Kickback Laws. The Consultant and the Company acknowledge that the
Federal Healthcare Programs Anti-Kickback Law, 42 U.S.C. 1320a-7b, prohibits, among other
things, giving or receiving remuneration in return for (or to induce) referrals, purchases, or
recommendations of goods or services for which payment may be made in whole or in part by
Medicare or Medicaid. It is the intention of the parties that this Agreement shall comply with the
regulatory safe harbor under the Anti-Kickback law for personal services, set forth in 42 C.F.R.
1001.952(d). If any portion of this Agreement is found by any court or agency with jurisdiction
over the subject matter hereof not to be in compliance with applicable laws, rules, or regulations,
that portion of the Agreement shall be deemed to be retroactively amended and reformed as
necessary to comply with such laws, rules or regulations, and the parties shall cooperate in taking
whatever steps are necessary to ensure such compliance.
(b) No Inducements. Both parties understand and agree that this Agreement, and
any compensation paid to the Consultant under this Agreement, is not contingent upon the
Consultants use, ordering, recommending, or prescribing any of the Companys products,
whether in the provision of Services hereunder or otherwise. The Consultant has not been offered
or paid any remuneration, directly or indirectly, overtly or covertly, in cash or in kind to: (i) refer
any individual to another person or entity for the furnishing, or arranging for the furnishing, of any
of the Companys product or service; or (ii) purchase, lease, order, or arrange for or recommend
purchasing, leasing, or ordering any of the Companys products or services.
(c) Government Health Care Programs Participation. The Consultant
represents and warrants that as of the Effective Date of this Agreement, the Consultant has not: (i)
6

been listed by any federal or state agency as excluded, debarred, suspended or otherwise ineligible
to participate in any federal and/or state health care programs; or (ii) been convicted of any crime
relating to any federal and/or state health care programs. The Consultant further agrees to
immediately notify the Company in writing in the event the Consultant is listed by a federal or
state agency as excluded, debarred, suspended or otherwise ineligible to participate in any federal
or state health care programs or if the Consultant is convicted of any crime relating to any such
program, or if the Consultant is being investigated by any federal or state agency in connection
with any such program.
(d) Disclosure of Payments. Where required by law, the Company will disclose
any and all payments for Services made to the Consultant, including the reimbursement of
expenses associated with the Services provided. The Consultant understands and agrees to such
disclosure as required by law.
(e) Duty to Provide Information. If the Consultant receives information
regarding a complaint or problem regarding the use or malfunction of a product of the Company
during the course of performing Services under this Agreement, the Consultant will immediately
notify the Company within 24 hours of the occurrence, of the details of such complaint, problem,
or malfunction, and provide all documentation of such complaint, problem, or malfunction that
the Company may reasonably request. If the Consultant makes any presentations on behalf of the
Company, the Consultant will disclose the Consultants contractual relationship with the
Company.
(f) Privacy. The Consultant acknowledges that in the course of performing
Services, the Consultant may have access to data about patients of the Companys customers that
is protected by various laws and regulations governing the confidentiality of such information,
including without limitation, the Health Insurance Portability and Accountability Act of 1996
(HIPAA). Such data includes, but is not limited to, patient medical records, case report forms,
and all other Protected Health Information, as defined in 45 C.F.R. 160.103. The Consultant
agrees to comply with all laws, rules, and/or regulations governing such data and/or information.
16. Governing Law; Consent to Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to contracts made
between California residents and wholly to be performed in California. The Consultant hereby
submits to the sole jurisdiction and venue of the courts of the State of California for purposes of
any action or proceeding relating to this Agreement.
17. Injunctive Relief. The Consultant acknowledges and agrees that damages will not be
an adequate remedy in the event of a breach of any of the Consultants obligations under this
Agreement. The Consultant therefore agrees that the Company shall be entitled (without
limitation of any other rights or remedies otherwise available to the Company and without the
necessity of posting a bond) to obtain an injunction from any court of competent jurisdiction
prohibiting the continuance or recurrence of any breach of this Agreement.
18. Arbitration. Any controversy or claim arising out of, or relating to, this Agreement or
the breach of this Agreement will be settled by arbitration by, and in accordance with the
applicable Commercial Arbitration Rules of the American Arbitration Association and judgment
upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The
7

arbitrator(s) will have the right to assess, against a party or among the parties, as the arbitrator(s)
deem reasonable, (a) administrative fees of the American Arbitration Association, (b)
compensation, if any, to the arbitrator(s) and (c) attorneys fees incurred by a party. Arbitration
hearings will be held in Sonoma County, California. The provisions of California Code of Civil
Procedure Section 1283.05 will apply to any arbitration. This Section 17 shall not apply to any
controversy or claim arising out of, or relating to, Sections 5, 6 and 7 of this Agreement or the
breach of Sections 5, 6 and 7 of this Agreement.
19. Headings. The headings in this Agreement are intended principally for convenience
and shall not, by themselves, determine the rights and obligations of the parties to this Agreement.
20. Attorneys Fees and Costs. If any party seeks to enforce its rights under this
Agreement by legal proceedings or otherwise, the prevailing party shall be entitled to recover all
costs and expenses incurred in conjunction with any such proceedings.
21. Notices. All notices, requests, demands, and other communications required by, or
made in connection with, this Agreement or the transactions contemplated by this Agreement,
shall be in writing and shall be deemed to have been duly given on the date of delivery, if delivered
in person, or three business days after mailing if mailed by certified or registered mail, postage
prepaid, return receipt requested, addressed as follows:
If to the Company:

[Insert Company name, contact and address]

If to the Consultant:

The address listed on the signature page hereto.

Such addresses may be changed, from time to time, by means of a notice given in the manner
provided in this Section 20
22. Severability. If any provision of this Agreement is held to be unenforceable for any
reason, such provision shall be adjusted rather than voided, if possible, in order to achieve the
intent of the parties to the maximum extent possible. In any event, all other provisions of this
Agreement shall be deemed valid and enforceable to the full extent possible.
23. Waiver. The waiver of any term or condition contained in this Agreement by any party
to this Agreement shall not be construed as a waiver of a subsequent breach or failure of the same
term or condition or a waiver of any other term or condition contained in this Agreement.
24. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
25. Entire Agreement; Modifications. Except as otherwise provided herein or in the
exhibits hereto, this Agreement represents the entire understanding among the parties with respect
to the subject matter of this Agreement, and this Agreement supersedes any and all prior and/or
contemporaneous understandings, agreements, plans, and negotiations, whether written or oral,
with respect to the subject matter hereof, including, without limitation, any understandings,
agreements, or obligations respecting any past or future compensation, bonuses, reimbursements,
or other payments to the Consultant from the Company. Any modification(s) of this Agreement
must be in writing and signed by each of the parties hereto.
8

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement as
of the date first written above.
Company:

[COMPANY NAME]

By:
Name:
Title:

Consultant:

By:
Name:
Address:

10

______________________________
______________________________

EXHIBIT A
STATEMENT OF WORK
________________ (Company) and _________________________ (Consultant)
enter into this Statement of Work pursuant to that certain Physician Consulting Agreement, dated
_______________ (the Agreement). Unless expressly set forth herein, all of the terms and
conditions of the Agreement shall govern this Statement of Work.
Purpose: The Company is
Services: As directed by the Company, the Consultant shall provide:
Consulting Fees/Payment Schedule: For Services rendered by Consultant under this
Agreement, the Company shall pay Consultant at the rate of $_______ per hour, not to exceed a
maximum of $_________ per day. For time spent in transit to/from engagements as directed by
the Company, the Company shall pay the Consultant up to $______ per day for travel within
North America. Transit time to regions outside North America shall be compensated up to
$________ per day. Unless otherwise agreed in writing, Companys maximum liability for all
Services performed for this Project during the term of this Agreement shall not exceed
$___________ in any twelve (12) month period.
Responsible Manager: The Consultant shall report to _________________. All invoices from
Consultant regarding the Services performed hereunder shall be approved by ________________
before such invoice is submitted for payment.
Dates Services to Be Performed: Services shall commence on the Effective Date of this
Agreement and due to the ongoing nature of the general physician advisory services, shall
continue indefinitely unless terminated per Section 9 of this Agreement.

______________________ (Company)

Consultant

By: ________________________________

By: ________________________________

Title:
Date: _________________________________

Date: _________________________________

EXHIBIT B
STATEMENT OF SERVICES

EXHIBIT C
TERMINATION CERTIFICATE
This is to certify that I do not have in my possession, nor have I failed to return, any
papers, records, data, notes, drawings, files, documents, samples, devices, products, equipment,
designs, computer programs or other materials, including copies and reproductions of any of the
aforementioned items, in whatever form, relating to _________________ (the Company),
whether or not confidential or proprietary.
I further certify that I have complied with all the terms of the Consulting Agreement by
and between the Company and me dated __________________ (the Consulting Agreement).
Moreover, I acknowledge and agree that, in compliance with the Consulting Agreement, I
will hold in confidence and will not disclose, use, copy, publish, summarize or remove from the
premises of the Company any Confidential Information (as defined in the Consulting
Agreement).

Date: ____________________

EXHIBIT D
LIST OF COMPANIES EXCLUDED UNDER SECTION 11(B)

___ No conflicts
___ Additional Sheets Attached
Signature of Consultant:__________________________
Print Name of Consultant:_________________________
Date:

EXHIBIT E

INSTITUTIONS POLICIES