Attached files
Exhibit 10.5
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PRESCRIPTION
DRUG DISCOUNT CARD AGREEMENT
This
Prescription Drug Discount Card Agreement effective as of ____________, 2009
(“Effective
Date”) is between Paramount Rx Inc. ("Paramount Rx")
located at 2054 Kildaire Farm Rd., #403 Cary, North Carolina 27518
and Free For All, Inc. (“Client”), with its
principal place of business located at 303 Lippincott Drive, Suite 320, Marlton,
NJ 08053.
RECITALS
A. Client
provides a prescription drug discount program, through which individuals may
utilize identification cards entitling them and their dependents access to
contracted, discount pricing for prescription drugs and drug products dispensed
at participating pharmacies;
B. Paramount
Rx has agreed to provide Client access to its national pharmacy network, claims
processing, contracted drug pricing and other related services in connection
with the Program. Paramount Rx has represented that it has
contractual agreements with all major pharmacy chains in the U.S. and Puerto
Rico that will enable it to appropriately service clients discount card
programs. The major pharmacy chains include but are not limited to
Wal-mart, Target, CVS, Walgreens, Kroger, K-mart, Albertsons, Sav-on, Osco,
Safeway, and Rite-Aid. The contracted chains have agreed to accept
Paramount Rx’s MAC list as well as a competitive Brand discount as defined in
Exhibit B. Paramount Rx agrees to provide an “ OPEN” network while it continues
to contract with independent pharmacies utilizing the
program. Discount rates for chain pharmacies in Puerto Rico
will not be subject to the performance guarantees defined in Exhibit
B.
In
consideration of the mutual promises in this Agreement, Paramount Rx and Client
agree as follows:
ARTICLE
1. DEFINITIONS
All
capitalized terms shall have the meanings given them in Exhibit A to this
Agreement.
ARTICLE
2. PROGRAM DESCRIPTION AND DUTIES
2.01 Client Representations and
Covenants. Client represents that its Program is a
Prescription Drug discount program made available to consumers who wish to
receive access to contracted, discount pricing for Prescription Drugs dispensed
at Participating Pharmacies and is not an insured benefit. Client
acknowledges and agrees that it is solely responsible for disclosing to
prospective and current Members all Program information legally required to be
disclosed, including, but not limited to, information related to the calculation
of amounts to be paid by Members, coverage and exclusions and enrollment
requirements.
2.02 Purchase of Prescription
Drugs. Members, at their own expense, may purchase
Prescription Drugs at Participating Pharmacies, upon presentation of a Program
identification card designed by client and a prescription
order. Client understands and agrees that its Members are
responsible for 100% of the contracted price of the Prescription Drugs dispensed
at the point of sale. Paramount Rx shall have no liability or
obligation whatsoever (whether in contract, tort, equity or otherwise) to pay
for such Prescription Drugs.
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2.03 Cooperation. Client
agrees to cooperate with Paramount Rx for the purpose of enabling Paramount Rx
to perform its services in connection with this Agreement. Client
represents and warrants that all Program information provided by or on behalf of
Client to Paramount Rx shall be true, accurate and complete. Client
further agrees to provide Paramount Rx with all information and the data
necessary, in such form as Paramount Rx may reasonably require, enabling
Paramount Rx to review and process each claim and to provide its services in
connection with this Agreement.
ARTICLE
3. SALES AND MARKETING MATERIALS
Client,
at its own expense, shall produce and distribute all advertising, sales,
marketing and enrollment materials (including, but not limited to, Member
brochures, applications and when required by the Program, identification cards)
for promotion of the Program. Client will submit identification card
templates and all related material templates for written approval by Paramount
Rx, any cards or materials that are produced using the approved templates will
not need further approval by Paramount Rx. Client further agrees that
without Paramount Rx’s prior written approval which will not be unreasonable
with held all such materials shall state the Program is not
insurance. Client shall not, directly or indirectly, advertise,
market or sell the Program as any form of insurance or “funded health benefit”,
except to the extent the Program is implemented in connection with Flexible
Spending Arrangements, Health Savings Accounts, Health Reimbursement
Arrangements or other funded or insured health benefits. As the
Client is using its own BIN for processing no names or logos of Paramount Rx
will be required to be added to the cards or marketing materials, unless
required by state or industry regulations.
ARTICLE
4. IMPLEMENTATION AND SUPPORT
4.01 Implementation. Paramount
Rx agrees to facilitate the implementation of Client’s Program by taking the
following actions: (a) loading Member enrollment files, within three
(3) business days of receipt, according to Paramount Rx’s system specifications;
(b) encoding Client’s Program specifications within information services and
claims processing systems; within seven (7) business days of receipt, according
(c) creating and encoding Client’s Program specifications within the
Participating Pharmacy network within seven (7) business days of receipt,
according; and (d) providing other agreed upon services. Paramount Rx
has represented that it currently has the technological capabilities to service
the clients discount cards and to assure the discount card transactions and
discounts are properly calculated and recorded under the client’s bin number.
Paramount Rx will provide a group level report .
4.02 Toll-Free Telephone
Access. Paramount Rx agrees to maintain at its sole expense a
toll- free telephone line for access by Participating Pharmacies for the
resolution of claims processing adjudication.
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ARTICLE
5. ENROLLMENT
5.01 Enrollment. If
Member participation in the Program is defined by eligibility criteria, then
Client shall provide Paramount Rx a complete enrollment file in electronic media
identifying all Members. Client also shall provide Paramount Rx
regular electronic updates of changes in enrollment, including, but not limited
to, changes in enrollment status, additions and deletions of Members, and
termination of Program participation, together with the effective date of any
such changes. Each enrollment file and update shall be provided by
Client in a mutually acceptable format and shall be true, accurate and complete
and shall include all information reasonably requested by Paramount Rx to
process claims for Prescription Drugs.
5.02 Maintenance of Enrollment
Files. Subject to Client’s written request, Paramount Rx shall
establish and maintain enrollment files related to Members and their
Prescription Drug utilization. Maintenance of enrollment files
(additions, terminations and updates) will be performed within three (3)
business days of Paramount Rx’s receipt of Client’s submission of enrollment
files and updates that satisfy the requirements of this Agreement.
ARTICLE
6. PROGRAM AND PHARMACY NETWORK MANAGEMENT
6.01 Claims
Processing. Paramount Rx agrees to receive and process from
Participating Pharmacies contractual claims (in National Council of Prescription
Drug Program required electronic format) for pricing of Prescription Drugs
dispensed at those pharmacies to Members. Paramount Rx will provide
all personnel, equipment and facilities necessary to perform the claims
processing operations for all claims submitted under this
agreement. Paramount Rx shall have no duty or obligation to process
claims received directly from Members. Paramount Rx shall accurately
calculate the Transaction Fee and all other fees when a claim is adjudicated and
add the sum of all those fees to the price returned to the Participating
Pharmacy. When the total price (including those fees) is less than the
Participating Pharmacy’s Usual and Customary Price the card holder will pay the
calculated discount price and the Client will receive the Transaction Fee as
defined in Exhibit B. Paramount Rx will make its best efforts to calculate the
discounted price and fees accurately and compare to the Usual and Customary
Price correctly.
6.02 Participating Pharmacy
Listings. Paramount Rx agrees to maintain complete, current
and accurate listings of Participating Pharmacies. Paramount Rx will
deliver a full Participating Pharmacy list to the Client in a machine readable
format, on a monthly basis, via automated export and FTP
transfer. The Participating Pharmacy list will include but not be
limited to the following fields of data: NPI, NCPDP, Name, Address 1, Address 2,
City, State, Zip Code, Retail Phone Number, Chain Identifier, Chain Name
Delivery Service Flag, Drive Up Flag, Twenty Four Hour Flag, and Hours as
provided by NCPDP and in accordance with our licensing
agreement. Failure of Paramount Rx to maintain pharmacy provider
agreements with all of the major pharmacy chains in the U.S. and Puerto Rico
shall be a breach of this agreement entitling client to terminate the
agreement.
6.03 Website. Paramount
Rx agrees to maintain Prescription Drug pricing and a Participating Pharmacy
locator on Paramount Rx’s website and reserves the right, in Paramount Rx’s sole
discretion, to modify that website and the information on that website from time
to time. Paramount grants to Client a non-exclusive right to
establish a link to Paramount Rx’s website and to post on Client’s website
information related to Paramount Rx, solely for the purposes of allowing Members
to access the Prescription Drug pricing listed on the website, to locate
Participating Pharmacies and to access Paramount Rx’s
services. Client agrees to incorporate the link (i.e., the graphical
image file) provided by Paramount Rx into the HTML files located at Client’s
website for the duration of this Agreement. Client further agrees
that all information on, and modifications to, Client’s website related to
Paramount Rx or its website shall be subject to its prior written approval,
which shall not be unreasonably withheld. Client further agrees to
remove that link and all information related to Paramount Rx contemporaneously
with the expiration or termination of this Agreement.
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6.04 Reports. Paramount
Rx agrees to provide to Client, within thirty (30) days of the end of each
calendar month, a report of all claims received during the month for which the
report is prepared. Paramount Rx agrees to provide to Client, within
thirty (30) days of the end of each calendar month, a utilization summary report
of all claims received during the month for which the report is
prepared. A right to audit is granted to client as set forth in
subsequent paragraphs herein.
6.05 Claim
Export. Paramount Rx agrees to provide to Client, at its sole
cost and expense, full claim files, in a machine readable format on a daily
basis, via automated export and FTP transfer. Providing the following
claim data is available to Paramount Rx from the adjudication system the claim
file will include but not be limited to the following fields of data: Unique
Claim Identifier, Claim Sequence Number, Claim Status Code (Paid, Reversed,
Reversal), Date Submitted, Date Filled, Group Identifier, Member Identifier,
Prescription Number, Drug NDC11, Drug GPI, Drug Label Name, Brand /
Generic Indicator, Single / Multiple Source Indicator, Metric Decimal Quantity,
Days Supply, Price List Used (AWP, MAC, U&C), Pharmacy Usual and Customary
Price, Pharmacy Submitted Amount, Pharmacy Paid Amount, AWP Unit Cost, AWP Total
Cost, Discounted Ingredient Cost, Pharmacy Dispensing Fee, Tax Amount, Total
Cost, Member Copay Amount, Pharmacy Identifier (NCPDP or NPI), Cycle Identifier,
Date Prescription Written, Person Code, Relationship Code, Member First Name,
Member Last Name, Member Gender, Member Birth Date, New/Refill Code,
DAW Code, COB Code, Pharmacy Name, Pharmacy Address 1, Pharmacy Address 2,
Pharmacy City, Pharmacy State, Pharmacy Zip Code, Pharmacy Chain Identifier,
Pharmacy Chain Name, Prescriber Identifier (NPI or DEA), Prescriber Name, BIN,
and PCN.
6.06 Group Load
Confirmation. Paramount Rx agrees to provide to Client, at its
sole cost and expense, full group load confirmation/exception reports within 24
hours after group load implementation.
6.07 Eligibility Load
Confirmation. Paramount Rx agrees to provide to Client, at its
sole cost and expense, full eligibility load confirmation/exception reports
within 24 hours after eligibility load implementation.
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6.08 Drug Search Web Service.
Paramount Rx agrees to provide to Client, at its sole cost and expense, a
real-time server based drug lookup, returning XML or another machine readable
format upon request from the Client’s server. This web service will have
functionality comparable to the Filtered Partial Product Name Search Web Service
provided by SXC. SXC defines this web service as follows: The Filtered
Partial Product Name Search web service accepts a partial drug name-extension
and searches for distinct combinations of name-extension, GPI-10, unit dose/unit
use, OTC indicator, route of administration, dosage form, maintenance indicator,
third party exception indicator, and active indicator.
6.09 Pricing Web Service. Paramount Rx
agrees to provide to Client, at its sole cost and expense, a real-time server
based drug price lookup, returning XML or another machine readable format upon
request from the Client’s server. This web service will have functionality
comparable to the User Trial Adjudication Web Service provided by SXC. SXC
defines this web service as follows: The User Trial Adjudication web service
allows you to submit a transaction to trial adjudication using client logical
security. The input supplies the web service with the drug, pharmacy, and member
information, which then returns a copayment quote based on the submitted
information.
6.10 Generic Web Service. Paramount Rx
agrees to provide to Client, at its sole cost and expense, a real-time server
based generic lookup, returning XML or another machine readable format upon
request from the Client’s server. This web service will have functionality
comparable to the Filtered GPI-10 Product Search Web Service provided by
SXC. SXC defines this web service as follows: The Filtered GPI-10 Product
Search web service accepts a GPI-10 and provides a distinct combination of name
extension, GPI-10, unit dose/unit use, OTC indicator, rank, route of
administration, dosage form, maintenance indicator, label, repackager code,
third party exception indicator, active indicator, strength, strength unit of
measure, dosage form, and brand/generic indicator.
6.11 Pharmacy Web Service.
Paramount Rx agrees to provide to Client, at its sole cost and expense, a
real-time server based pharmacy lookup, returning XML or another machine
readable format upon request from the Client’s server. This web service
will have functionality comparable to the Get Pharmacy Web Service provided by
SXC. SXC defines this web service as follows: The Get Pharmacy web service
supports both address and zip code search criteria. The result is a listing of
pharmacies within a certain distance of the center of the zip code provided (or
determined from the address). An additional feature of this web service is
that it returns both the NCPDP and NPI ID's.
6.12 Drug Details Web
Service. Paramount Rx agrees to provide to Client, at its sole cost
and expense, a real-time server based pharmacy lookup, returning XML or another
machine readable format upon request from the Client’s server. web service
will have functionality comparable to the Filtered GPI-14 Product Search Web
Service provided by SXC. SXC defines this web service as follows: The
Filtered GPI-14 Product Search web service accepts a GPI-14 and provides a
distinct combination of name extension, GPI-14, unit dose/unit use, OTC
indicator, rank, route of administration, dosage form, maintenance indicator,
label, repackager code, third party exception indicator, active indicator,
strength, strength unit of measure, dosage form, and brand/generic
indicator.
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6.13 Security. Paramount
Rx agrees to provide physical and electronic security for all data related to
the Client programs and card holders. Paramount Rx will ensure that
this data is only accessed by Paramount Rx employees required to complete the
responsibilities of Paramount Rx under this agreement. Paramount Rx
certifies that all Paramount Rx employees and delegates have signed a
non-disclosure and confidentiality agreement protecting the data.
6.14 Maintenance of Group
Files. Subject to Client’s written request, Paramount Rx shall
establish and maintain group files related to Client’s
programs. Maintenance of group files (additions, deletions and
updates) will be performed within three (3) business days of Paramount Rx’s
receipt of Client’s submission of group files.
6.15 Network
Compliance. Paramount Rx, at its sole cost and expense, will
ensure to the best of its ability that all participating pharmacies accept the
discount prescription card using Client provided BIN numbers. This
will include pharmacy payer sheet announcements to pharmacies.
6.16 Drug Price
Access. Paramount Rx will maintain, at its sole cost and
expense, access to First Data Bank or MediSpan price file subscription that is
updated no less than monthly. This price data will be utilized in the
daily adjudication of the medications as well as in the data services
above.
6.17 MAC Price
Maintenance. Paramount Rx will maintain, at its sole cost and
expense, an industry competitive MAC price file. The MAC price file will perform
as defined in Exhibit B. This MAC price file will be utilized in the
daily adjudication of the medications as well as in the data
services. The MAC pricing will apply to over 90% of generics, as
defined by First Data Bank or MediSpan, excluding single source
generics.
6.18 Group
Setup. Paramount Rx will provide three types of group program
setups. 1) Static ID number program – one Member Identifier printed
on multiple cards that can be used by anyone with different names and birth
dates. 2) On-the-fly registration – Member Identifier may not exist
in the system at the time of processing, Member Identifier and member
demographics are captured as submitted by the pharmacy. 3) Positive
eligibility – Client loads a full eligibility file which lists Member
Identifiers and demographics for the specified group.
6.19
DMPO Compliance. Both Parties agree they will, at its sole
cost and expense, maintain Discount Medical Plan Organization registration or
licensing as required by each state Law.
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6.20
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Cardholder Benefits. All
Prescription Drugs are covered. There are no quantity
dispensing limits. There are no “refill to soon
limits”. When possible and particularly with eligibility based
groups, each Prescription will be subject to DUR based on the prescription
utilization history.
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6.21
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Real Time
access. Paramount Rx agrees to provide to Client,
at its sole cost and expense, access to a read only real time adjudication
system for the resolution of member call inquiries. This access
will include but not be limited to viewing the claim details in the system
and viewing the groups loaded in the system. Write access will
be granted for maintaining eligibility when
needed.
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6.22
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Web Service
Access. Paramount will absorb
all web service costs up to an including 75% of the previous months paid
claim total for writes to the database and 225% of the previous months
paid claim total for reads to the database. Anything above
these levels will be billed at .045 per write and .03 per
read. This will not apply for technology provided directly by
Paramount Rx, and only apply to web services directly provided by SXC.
Example: 100,000 paid claims would result in 75,000 free writes
and 225,000 free reads. All MAC generic pricing, currently
between 70-80% of all utilization, will be priced using a Paramount Rx
internal pricing service.
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6.23
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MAC Generic Pricing Web Service.
Paramount Rx agrees to provide to Client, at its sole cost and expense, a
real-time server based drug price lookup, returning XML or another machine
readable format upon request from the Client’s server. The input
supplies the web service with the generic drug (GPI-14), pharmacy (NCPDP),
and quantity, which then returns a copayment quote based on the submitted
information.
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ARTICLE
7. PAYMENT
7.01 Paramount
Rx agrees to pay Client a Transaction Fee as described in Exhibit B for all
collected Program Claims on a twice monthly basis. Paramount Rx shall have no
duty or obligation whatsoever (whether in contract, tort, equity or otherwise)
to pay Client Transaction Fees on Program Claims that are not received from
Participating Pharmacies. Paramount Rx agrees to produce and deliver
to Client a twice monthly machine readable transaction summary correlating back
to the claims file via automated export and FTP transfer.
ARTICLE
8. TERM AND TERMINATION
8.01 Initial Term and Renewal
Terms. The initial term of this Agreement shall be for a
period of one year (2) years, commencing on the Effective Date and shall
automatically renew for additional terms of one (1) year each, unless either
party provides not less than sixty (60) days’ prior written notice of its
decision not to terminate this Agreement. In the event of a breach,
termination can be effectuated in 30 days as set forth below.
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8.02 Termination for
Breach. If either party commits a material breach of any
provision of this Agreement, the other party shall have the right to notify the
breaching party in writing of the alleged breach. The breaching party
shall have thirty (30) days in which to cure such breach. If the
alleged breach is not cured within that time period, the other party shall have
the right to terminate on the 30th
day. Notice of breach via email is acceptable.
8.03 Effect of
Termination. A party’s right to terminate this Agreement shall
not be exclusive of any other remedies available to that party under this
Agreement, at law or in equity. In the event of a termination Client
shall be paid all transaction fees due it upon collection by Paramount
Rx.
8.04 Notice to Other Persons of
Termination. This Agreement may be terminated without the
consent of, or notice to, any Member, any Participating Pharmacy or other
person. Paramount Rx shall have the right to advise Participating
Pharmacies and Members of a pending or actual termination of this Agreement,
only upon request.
ARTICLE
9. NON-SOLICITATION
The
parties have agreed that this agreement shall be exclusive for the first two
years. The client shall process all non funded discount transactions through
Paramount Rx . During this exclusive term, the client shall not have a network
pharmacy sign a contract to effectively replace Paramount Rx’s services under
this agreement. It is understood that the exclusivity clause herein
shall terminate in the event of a material breach by Paramount that is not
properly cured.
ARTICLE
10. CONFIDENTIALITY AND OWNERSHIP OF INFORMATION
10.01 Confidential
Information. No party shall disclose or use any of the other
party’s Confidential Information, except as expressly allowed in this
Agreement. “Confidential
Information” means, with respect to Paramount Rx, all confidential,
proprietary or trade secret information related to its business plans;
accounting procedures and records; operations and strategies; software,
reporting packages, user documentation and related information; agreements with
Participating Pharmacies, pharmaceutical manufacturers, vendors and other
persons and information related to any of the foregoing; the Participating
Pharmacy network or networks; data and information owned or licensed by
Paramount Rx; and the terms and conditions of this Agreement. “Confidential
Information” means, with respect to Customer, all confidential,
proprietary or trade secret information related to its business plans,
operations and strategies. “Confidential Information” excludes, (a)
information that becomes publicly available through no fault of the receiving
party or its representatives, (b) information that is necessary or appropriate
in making any filing or obtaining any consent or approval related to the
transactions contemplated by the parties, or (c) information that is required
by, or is necessary or appropriate to be disclosed in connection with, a court
or administrative order or legal proceeding, or is required to be disclosed by
Law. Upon expiration or termination of this Agreement, the receiving
party shall promptly return to the disclosing party or destroy all Confidential
Information in its possession and shall certify to the disclosing party that it
has done so. Each party shall be responsible and liable for the
breach of this provision by its agents, employees, representatives and
subcontractors. Notwithstanding anything else to the contrary in this
Agreement, Paramount Rx shall have the right to disclose the Program terms and
conditions to Participating Pharmacies, manufacturers, Members and their
representatives and to identify Client as a customer of Paramount Rx, as needed
to provide services to the Client.
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10.02 Trademarks and Service
Marks. Both parties retain all rights, title, and interest in
and reserve the right to control the use of their respective names, logos,
symbols, trademarks or service marks presently existing or hereafter
established. Notwithstanding the foregoing, Client shall have the
right to list Paramount Rx and use its trade name and marks in Member,
promotional and other materials approved in advance and in writing by Paramount
Rx, and Paramount Rx shall have the right to use Client’s logo, marks, name,
address and Program information in materials distributed to Participating
Pharmacies and pharmaceutical manufacturers and prospective and current Members
in connection with the services provided by Paramount Rx under this Agreement,
only with the express written permission from Client.
10.03 Survival. This
Article shall survive the expiration or termination of this Agreement for any
reason whatsoever.
ARTICLE
11. BOOKS AND RECORDS; MEMBER INFORMATION
11.01
Maintenance of Records;
Audits. Paramount Rx shall maintain true and complete records
related to all Program Claims and Transaction Fees paid to
Client. Client shall have the right, at its own expense, to audit
those records up to one (1) year immediately following the close of each
calendar year, in which the transactions underlying those Program Claims and
Transaction Fees arise. Upon not less than fifteen (15) business
days’ prior written notice, Paramount Rx shall make such records available
electronically via FTP and physically at its principal place of business, for
inspection by Client during normal business hours. Client may
designate an accounting firm of its choice to conduct such audit on its behalf
so long as that firm has not provided, and does not provide, accounting or other
services to Paramount Rx or any of its competitors. Client and its
designee shall enter into a confidentiality agreement, reasonably acceptable to
the parties and Client’s auditor, to maintain the confidentiality of, (a) all
information to which Client or its designee will have access during the course
of the audit, (b) the fact that Client or its auditor audited Paramount Rx, and
(c) the audit results.
11.02 Confidentiality and Security of
PHI. Client and Paramount Rx shall maintain the
confidentiality and security of PHI in accordance with HIPAA regulations,
applicable Law, and any other industry standard. Client acknowledges
and agrees that PHI will be obtained by Paramount Rx in providing services in
connection with this Agreement (e.g., through processing of Prescription Drug
claims) and such PHI may be obtained from and/or distributed to Client,
Participating Pharmacies, manufacturers, Members and their physicians for
purposes related to the Program services provided by Paramount
Rx. Client hereby permits Paramount Rx and its designee to use such
data in connection with its obligations under this Agreement.
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ARTICLE
12. LIMITATION OF LIABILITY; INDEMNIFICATION
12.01 DISCLAIMER. THE
SERVICES PROVIDED BY PARAMOUNT RX ARE NOT INTENDED TO SUBSTITUTE FOR OR
SUPPLEMENT THE KNOWLEDGE, EXPERTISE, SKILL, AND JUDGMENT OF PHYSICIANS,
PHARMACISTS, PRACTITIONERS OR OTHER HEALTH CARE PROFESSIONALS IN PRESCRIBING,
DISPENSING OR SUGGESTING PRESCRIPTION DRUGS OR OTHER PRODUCTS. THE
ABSENCE OF A WARNING FOR A GIVEN DRUG, DRUG DOSAGE, OR DRUG COMBINATION SHALL
NOT BE CONSTRUED TO INDICATE THAT THE DRUG, DRUG DOSAGE, OR DRUG COMBINATION IS
SAFE, APPROPRIATE, OR EFFECTIVE FOR ANY PERSON.
12.02 No Liability for Certain
Damages. Neither party shall be liable to the other, or its
associates, agents, brokers, consultants, designees or representatives for any
indirect, special, consequential, exemplary, punitive or liquidated damages or
for any damages for lost profits related to a relationship with another person,
however caused or arising, whether or not the party has been informed of the
possibility of their occurrence. Liability of either party to the
other in the event of any material breach of this Agreement shall be limited to
recovery of the loss of any revenues occasioned by any such breach.
12.03 Limitation of Liability for Acts of
Others. Paramount Rx shall under no circumstances be liable
for any negligence, wrongful act, error or omission of any health care provider,
physician, practitioner, pharmacy, pharmacist or pharmaceutical manufacturer,
wholesaler or distributor. Nor shall Paramount Rx have any liability
or obligation whatsoever (whether in contract, tort, equity or otherwise) for
any actions, claims, damages, losses or expenses including attorneys’ fees
and costs, sustained by any person, as a result of the providing or the failure
to provide prescription drugs or pharmacy services or in connection with the
advertising, sale or marketing of the Program.
12.04
Indemnification. Subject
to the remaining provisions of this Agreement, Paramount Rx agrees to indemnify,
defend and hold Client harmless from any and all actions, claims, damages,
losses and expenses, including attorneys’ fees and costs (together, “Losses”) arising
from a material breach by Paramount Rx of this Agreement or a material
inaccuracy of its representations and warranties in this
Agreement. Client agrees to indemnify, defend and hold Paramount Rx
harmless from any and all Losses arising from, (a) a material breach by Client
of this Agreement, (b) a material inaccuracy of its representations and
warranties in this Agreement, and (c) any act or omission of Client in
connection with the advertising, sale or marketing of the Program.
12.05 Survival. This
Article shall survive the expiration or termination of this Agreement for any
reason whatsoever.
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ARTICLE
13. ARBITRATION
Any and
all controversies related to this Agreement, whether based in tort or contract
or statutory or common law, shall be exclusively settled by arbitration in
accordance with the Federal Arbitration Act, except when either party seeks
injunctive relief, specific performance or other equitable relief pursuant to
Section 15.05 (Injunctive Relief). All fees and expenses of the
arbitration shall be borne by the parties equally. However, each
party shall bear the expense of its own counsel, experts, witnesses and
preparation and presentation of proofs. The arbitration hearing shall
be held in a neutral location mutually agreed to by the parties. The
arbitrator shall be mutually agreed upon by the parties and selected from a
panel of persons having experience with and knowledge of pharmaceutical discount
card industry issues, unless such qualification is waived in writing by both
parties. The arbitrator has the discretion to award legal fees to
either party. The award of the arbitrator shall be final and binding on the
parties, and judgment upon such award may be entered in any court having
jurisdiction thereof. This Article shall survive the expiration or
termination of this Agreement for any reason whatsoever.
ARTICLE
14. COMPLIANCE WITH LAW
The
parties agree to comply with all Law applicable to the services provided by
Paramount Rx in connection with this Agreement, and the parties further agree to
enter into such other amendments and agreements as are reasonably necessary to
comply with applicable Law. Without limiting the foregoing, Client
further agrees to comply with all Laws applicable to the Program and represents
and warrants that Client has, and shall continue to maintain, all approvals,
permits, licenses and registrations required for the advertising, sale,
marketing and operation of the Program.
ARTICLE
15. GENERAL PROVISIONS
15.01 Other
Providers. Client agrees that Paramount Rx shall be the
exclusive provider of Program services for all Clients’
Members. Paramount Rx may perform similar services for other
organizations, and this Agreement is not intended, and shall not be construed,
to prevent Paramount Rx from performing such similar services
15.02
Independent
Contractors. The parties are independent contractors of each
other. Neither party, nor any of its employees or contractors or
designees, is intended or shall be construed to be the agent, employee,
fiduciary or representative of the other party.
15.03 No Third Party
Beneficiaries. This Agreement is not intended, and shall not
be construed, to create third party beneficiary rights in any person, including,
but not limited to, any Member or Participating Pharmacy.
15.04 Delegation of
Services. Paramount Rx shall have the right to delegate to
other persons contracted to Paramount Rx certain administrative functions and
services including, but not limited to, claims processing
services. Paramount Rx shall retain full responsibility for the
performance of the delegated service.
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15.05
Injunctive
Relief. Each party acknowledges that any breach or threatened
breach of the agreement may result in substantial, continuing and irreparable
injury to the other party. Therefore, each party agrees that, in
addition to any other available remedy, the other party shall be entitled to
injunctive relief, specific performance or other equitable relief in the event
of any breach or threatened breach of one or more of those Articles without the
necessity of proving irreparable harm or injury as a result of such breach or
threatened breach.
15.06 Entire
Agreement. This Agreement, together with its exhibits and
attachments, constitutes the entire agreement between the parties and supersedes
any prior understanding or representation of any kind.
15.07 Severability. If
any provision of this Agreement is held invalid or unenforceable by a court of
competent jurisdiction, the other provisions of this Agreement shall remain in
full force and effect. Any provision of this Agreement held invalid
or unenforceable only in part or degree shall remain in full force and effect to
the extent not held invalid or unenforceable, and the parties authorize and
request the court to revise any invalid, unenforceable or unreasonable provision
in a manner that results in the provision being enforceable while remaining as
similar as legally possible to the purpose and intent of the
original.
15.08 Amendment. Any
amendment or modification to this Agreement shall be binding only if evidenced
in a writing signed by each party or an authorized representative of each
party.
15.09
Waiver. No
failure or delay by a party to exercise any right under this Agreement shall
operate as a waiver of that right, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof, or the exercise
of any other right. The waiver of any breach of any provision of this
Agreement shall not be deemed or construed as a waiver of any other breach of
the same or different provision.
15.10
Governing Law and Choice of
Forum. The laws of the State of New Jersey, shall govern this
Agreement and all related controversies, whether based in tort or contract or
statutory or common law. Subject to Article 13
(Arbitration), any and all claims or controversies related to this
Agreement shall be brought in New Jersey. Each party consents to the
jurisdiction of such courts (and the appropriate appellate courts) and waives
all objections to such courts based upon venue, forum non conveniens,
personal jurisdiction or similar grounds. This provision shall
survive the expiration or termination of this Agreement for any reason
whatsoever.
15.11 Force
Majeure. Neither party shall be liable in any manner for any
delay in performance of its obligations under this Agreement beyond the party’s
reasonable control, including, but not limited to, any delay or failure due to
strikes, labor disputes, riots, earthquakes, storms, floods, or other extreme
weather conditions, fires, explosions, acts of God, embargoes, terrorist acts,
war or other outbreak of hostilities, government acts or regulations, or the
failure or inability of carriers, suppliers, delivery services or communication
providers to provide services necessary to enable a party to perform its
obligations hereunder.
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15.12 Authority to Enter
Agreement. Each party warrants and represents that it has full
power and authority to execute this Agreement and understands the provisions of
this Agreement. Each party represents and acknowledges that it has
read this Agreement and understands the Agreement and has entered into this
Agreement voluntarily.
IN WITNESS WHEREOF, the
parties have signed this Prescription Drug Discount Card Agreement.
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Client:
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Paramount
Rx Inc.
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By:
_______________________
Name:_____________________
Title:______________________
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By:________________________
Name:_____________________
Title:______________________
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Exhibit
A to Prescription Drug Discount Card Agreement
Definitions
The
following terms shall have the meanings given them in the attached Prescription
Drug Discount Card Agreement.
“Client” means the
corporation, limited liability company, limited or general partnership, other
legal entity and any other controlled or affiliated service groups operating bin
number 013824, and any other bin numbers utilized by client during
the term of this agreement, that is identified in the introductory paragraph of
this Agreement.
“Confidential
Information” shall have the meaning given in Section 10.01 (Confidential
Information).
“Law” means the
combination of federal, state, local and tribal statutes, ordinances,
regulations and guidance, and administrative and judicial interpretations
thereof.
"Member" means each
individual identified by Client to Paramount Rx, in accordance with this
Agreement, as enrolled in the Program.
“MAC” means the
maximum allowable cost limit for generic prescription drugs. The
designation of a product as generic and/or subject to MAC is determined by an
industry standard database such as First Data Bank or MediSpan.
"Participating
Pharmacy" means each pharmacy that enters into an agreement, directly or
indirectly, with Paramount Rx to provide pharmacy services to individuals,
including, but not limited to, Client’s Members.
“PHI” means
individually identifiable health information related to the past, present, or
future physical or mental health or condition of a Member; the provision of
pharmacy services or other health care to a Member; or the past, present or
future payment for the provision of pharmacy services or other health care to a
Member, as protected under Law.
“Prescription Drug”
means a federal or state, restricted drug or bulk medicinal substance that by
federal or state Law cannot be dispensed without a prescription. A
Prescription Drug may include a compound prescription drug containing at least
one drug which by Law cannot be dispensed without a prescription.
“Program” means the
prescription drug discount card program provided by Client, directly or
indirectly, to its Members.
"Program Claim" means
each claim for pricing transmitted by a Participating Pharmacy to Paramount Rx
related to a Prescription Drug dispensed to a Member using Client’s
identification card, when the Prescription Drug purchase price inclusive of the
Transaction Fee and all other fees and charges at the point of sale to the
Member is less than the Usual and Customary Price and for which Paramount Rx is
to provide the services described in this Agreement.
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“Transaction Fee”
means the fee paid to Client on each collected Program Claim.
"Usual and Customary
Price" means the price for a Prescription Drug a Participating Pharmacy
would charge to an individual who does not hold an identification card and does
not participate in any plan or program that provides coverage for drugs or drug
products.
“AWP”
means the Average Wholesale Price for a pharmaceutical product as provided in
First Data Bank or MediSpan and updated no less than monthly.
“DUR”
means concurrent Drug Utilization Review.
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Exhibit
B to Prescription Drug Discount Card Agreement
Fees and
Charges
1. All
implementation and setup fees have been waived.
2. All
programming provided by Paramount Rx in connection with Client’s Program shall
be mutually agreed to, in writing, by both parties prior to commencement of any
project or work. Client agrees to pay Paramount Rx for all such
programming at the following rate:
Programming
Rate: No charge
3. Paramount
Rx agrees to pay Client the Transaction Fee described below, solely from monies
received by Paramount Rx from Participating Pharmacies in connection with
Program Claims. Transaction fees will be paid at the rate according
to the schedule below, regardless of claim volume the first 100,000 paid program
claims are paid at $2.50.
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0 –
100,000 paid program claims
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$2.50
per Program Claim
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100,001
and above paid program claims
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$2.85
per Program Claim
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4. Client
acknowledges and agrees that Paramount Rx shall have the right to collect and to
retain for its own account, (a) fees and charges (other than the Transaction
Fee) from each Participating Pharmacy. Paramount Rx will operate in a
transparent manner and disclose all fees and charges to Client upon
request.
All
discounts, rebates, financial incentives and other compensation in connection
with this Agreement shall be divided 70% to client, 30% to Paramount after any
rebate administration fees. Paramount shall collect all such
rebates/discounts and tender the above percentage to client.
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Paramount
Rx shall perform at or better than the rates listed below for all claims
processed:
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Brand
Drugs: AWP-10
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Generic
Drugs (MAC and non-MAC): AWP-55 (blended average)
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Paramount
Rx will maintain an industry standard U&C
rate
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