Attached files
Exhibit 10.7
AGELITY
RETAIL SPONSOR AGREEMENT
THIS AGREEMENT, to
be effective the 1st day of
May, 2008, is
between Agelity, Inc. with headquarters at 115 Broad Hollow Road Melville, NY
11747 (hereinafter referred to as "AGELITY") and and GetRxRelief, LLC presently
located at 6 Alton Avenue Voorhees, NJ 08043 (hereinafter referred to
as"SPONSOR").
W
I T N E S S E T H:
WHEREAS,
AGELITY maintains a national pharmacy discount network and
services (hereinafter referred to as "PLAN"); and
WHEREAS, AGELITY wishes to
provide the PLAN to the Sponsor; and
WHEREAS, SPONSOR is
desirous of retaining the services of AGELITY for the management of the PLAN;
and
WHEREAS, SPONSOR wishes to
provide the PLAN to their eligible members; and
WHEREAS, this agreement
supersedes all prior agreements between AGELITY and SPONSOR and;
NOW,
THEREFORE, in consideration
of the mutual promises and covenants contained herein, the parties agree
as follows:
DEFINITIONS
1. "100%
COPAYMENT" means that amount of money the member must pay covers the total cost
of the
prescription.
2. "AVERAGE
WHOLESALE PRICE" (AWP) Price for a Pharmaceutical Product as provided in the
First
DataBank or MediSpan price file and updated no less than twice
monthly.
3. "COPAYMENT"
means that amount of money the member must pay for each prescription filled or
refilled
under this Agreement.
4. "ELIGIBLE
DEPENDENT" means the member's spouse and dependent children.
5. "ELIGIBLE
MEMBER" means any individual that SPONSOR identifies as being eligible for the
PLAN
under this Agreement.
6. "LEGEND
DRUGS" means any substance Federal or State, restricted drug or Bulk Medicinal
Substance,
commonly referred to as a “prescription drug” which by Law cannot be dispensed
without a
prescription.
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7. "LICENSED
PHYSICIAN" means a licensed Doctor of Medicine (M.D.), or Doctor of Osteopathy
(D.O.),
Doctor of Podiatry (D.P.M.) or Doctor of Dentistry (DDS) when acting within the
scope o his/her
practice.
8. "PARTICIPATING
PHARMACY" means any pharmacy that has entered into a participating pharmacy
agreement with AGELITY and is required to provide pharmaceutical services to
Sponsor’s members
and dependents.
9. "PRESCRIPTION"
means the legal request for prescription legend drugs issued by a duly licensed
physician
as defined in this Agreement.
10. "USUAL AND
CUSTOMARY" means the reasonable, usual or customary fees charged by Pharmacy
which do
not exceed the fees Pharmacy would charge any other person regardless of whether
the person is
a member.
BENEFITS
1. The
Plan covers all Legend Drugs
2. The
Plan contains no quantity dispensing limits
3. The
Plan has no “refill to soon” limits
MEMBER
REQUIREMENTS
1. All
member are required to make a 100% co-payment for all prescriptions at the point
of sale
2. All members and dependents must present to participating pharmacy a properly completed
identification
card in order for the pharmacy to provide the required service.
DUTIES
OF AGELITY
AGELITY
will perform the following duties under this Agreement subject to the
performance standards described
below:
1. Provide
all personnel, equipment, and facilities necessary to perform the claims
processing operations for all
claims submitted under this Agreement.
2. Review
all claims to determine whether each claim is payable.
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3. Maintain
complete, current and accurate listings of AGELITY participating pharmacies and
provider files.
4. AGELITY
shall provide SPONSOR with monthly utilization summary report(s).
5. AGELITY
agrees to provide electronic security for the SPONSOR member database and
AGELITY will
ensure access to the SPONSOR member database only by those AGELITY employees
required to complete
the responsibilities of AGELITY under this contract.
6. Maintain
at its sole cost and expense a toll free line for access by Participating
Pharmacies or SPONSOR
for matters related to the adjudication of the discount prescription
card.
7. At
its sole cost and expense, arrange for the issuance of unique group numbers for
SPONSOR’s distribution partners and of a single activation number for each group issued as defined by
SPONSOR,
within 5 days of SPONSOR’s request.
8. Safeguard
and keep confidential all SPONSOR provided data, including all member
information and ensure
that all such data is maintained by AGELITY in accordance with HIPAA regulations
and any other
applicable law or industry standard.
9. Ensure
participating pharmacies accept the discount prescription card.
DUTIES
OF SPONSOR
SPONSOR
shall have the following duties with respect to this Agreement:
1. SPONSOR
will use its best efforts to oversee the distribution of the programs
prescription drug identification
card, member guide and other inserts to all of SPONSOR subscribers.
2. SPONSOR
will maintain and provide to AGELITY the eligibility file of eligible
members.
3. SPONSOR
is responsible for all member customer service correspondence and must include a
toll free
customer service number on the member identification card.
4. SPONSOR
is responsible for adhering to all applicable local, state and federal rules and
regulations pertaining
to pharmacy discount programs including, but not limited to, filing and
registering of sponsor
program(s).
5. SPONSOR
is responsible for providing to AGELITY copies of all applicable local, state
and federal filings
and registrations of sponsor pharmacy discount program(s).
6. SPONSOR
must submit to Agelity all PLAN marketing materials for approval prior to
distribution.
7. SPONSOR
must submit to Agelity PLAN identification card layout specification for
approval prior to distribution.
8. SPONSOR
agrees to use Agelity as its exclusive claims processor and pharmacy network
provider.
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TERM
AND TERMINATION
1. This
Agreement shall remain in full force and effect, unless otherwise terminated,
for a term of three (3)
years. The term of this Agreement shall be automatically
renewed for successive additional one year terms unless written notice to the
contrary is given by either party. Written termination notice
must occur not less than one hundred eighty (180) days prior to the end of the
current term.
2. In
the event of any material breach of any term of this Agreement, the nonbreaching
party may terminate
as hereinafter provided. The party complaining of such breach
shall give the other party written
notice of the breach. The breaching party shall have thirty
(30) days in which to correct. Upon
failure to correct, the complaining party may terminate this Agreement on thirty
(30) days written
notice.
3. Neither
party shall be liable to the other for any special, consequential or liquidated
damages. Liability
of either party to the other in the event of any material breach of any term of
this Agreement shall be
limited to recovery of the loss of any revenues occasioned by any such
breach.
NON-SOLICITATION
SPONSOR
acknowledges that the Agelity Pharmacy Network has been developed by Agelity
through substantial expenditure of time, effort and
expense. Accordingly, SPONSOR agrees that during the Term of
this Agreement and for a period of one (1) year from the date of termination of
this Agreement for any reason,
SPONSOR shall not, directly or indirectly, itself or on behalf of any other
person or entity, solicit, interfere
with or induce any Pharmacy comprising the Agelity Pharmacy
Network.
CONFIDENTIAL
INFORMATION
Neither
party shall disclose any information or knowledge concerning the other party's
claims, accounting procedures,
or histories, all of which are deemed confidential information except as
otherwise required by
law. All data, information, and knowledge supplied by AGELITY
shall be used by SPONSOR exclusively
for the purposes of performing this Agreement. It is agreed that all
computer programs, flow charts, screens and applications, routines, subroutines, data banks, and formulae relating to the
processing, handling, or treatment of data developed or brought to the
performance of this Agreement by either party in the processing and payment of
claims under this Agreement shall be and remain the property of the
developer. Upon termination of this Agreement, AGELITY shall
return to SPONSOR all confidential information provided by SPONSOR including,
without limitation, all copies and electronic magnetic versions
thereof. Upon termination of the Agreement, SPONSOR shall
return to AGELITY all confidential information and manuals provided to SPONSOR
by AGELITY including, without limitation, all
copies and electronic magnetic versions.
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INDEMNIFICATION
AGELITY
shall indemnify, defend and hold harmless SPONSOR, its officers, directors,
stockholders, employees
and agents from and against any and all claims, actions, demands, costs and
expenses, including reasonable attorney fees and disbursements, as a result of a
breach by AGELITY of any of its obligations under this Agreement or arising out of
the negligent act or omission or willful misconduct of
AGELITY.
SPONSOR shall indemnify, defend and
hold harmless AGELITY, its officers, directors, stockholders, employees and agents from and against
any and all claims, actions, demands, costs and expenses, including reasonable attorney fees and
disbursements, as a result of a breach by SPONSOR of any of its obligations
under this Agreement or arising out of the negligent act or omission or willful
misconduct of SPONSOR, subject to the terms of this
Agreement.
ARBITRATION
Any and
all controversies in connection with and/or arising out of this Agreement shall
be exclusively settled by arbitration in accordance with the Rules of the
American Arbitration Association. 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. Arbitration
under the provision shall be conducted in the state of New York
unless otherwise agreed to by the parties.
ACCEPTANCE
OF OFFER
Notwithstanding
anything to the contrary set forth above, this Agreement shall not be binding
upon AGELITY unless and until the Agreement shall be signed and executed by a
duly authorized officer of AGELITY. The signing of this
Agreement by SPONSOR constitutes an offer only until the same has been
accepted.
PROFESSIONAL
JUDGMENT
Nothing
in this Agreement shall be construed to require participating pharmacy to dispense any
Prescription Medication if, in the pharmacist's professional judgment, such
medication should not be dispensed.
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GENERAL
1. Neither
of the parties to the Agreement, nor any of their respective employees, shall be
construed to be the
agent, employee or representative of the other, or liable for any acts of
omission or commission on the
part of the other.
2. This
Agreement may not be assigned by either party without the express written
consent of the other party.
3. The
headings contained in the Agreement are for reference purposes only and shall
not affect the meaning
or interpretation of this Agreement.
4. Both
parties reserve the right to and control of the use of their names, symbols,
trademarks or service marks
presently existing or hereafter established.
5. Neither
the failure nor any delay on the part of either party to exercise any right,
power or privilege hereunder
will operate as a waiver thereof, nor will any single or partial exercise of any
such right,power or
privilege preclude any other or further exercise thereof, or the exercise of any
other right, power or
privilege. In the event either party should waive any breach of
any provision of this Agreement,
it will not be deemed or construed as a waiver of any other breach of the same
or different
provision.
6. The
invalidity or non-enforceability of any term or provision of this Agreement
shall in no way affect the
validity or enforceability of any other term or provision.
7. Notices
shall be in writing and shall be sent by return receipt mail addressed to the
other party at the address
shown in this Agreement.
8. This
Agreement and the exhibits and schedules attached hereto shall be binding upon
and inure to the benefit
of the parties hereto and their respective successors and assigns.
9. Any
modification or amendment to this Agreement or additional obligation assumed by
any party in connection
with this Agreement shall be binding only if evidenced in a writing signed by
each party or an
authorized representative of each party.
10. This
Agreement shall constitute the entire Agreement between the parties and any
prior understanding or
representation of any kind preceding this Agreement shall not be binding upon
any party except to the
extent incorporated in this agreement.
11. Each of the
parties represents and acknowledges that they have read this Agreement and that
they understand
the same and that they have entered into this Agreement
voluntarily.
12. Each party
executing this Agreement specifically warrants and represents that he or she has
full power and
authority to execute this Agreement and that he or she understands the terms of
this Agreement.
Each person executing this Agreement represents that he or she has not
transferred or assigned
or otherwise conveyed in any manner or form any of the rights, obligations or
claims which are the
subject matter of this Agreement.
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TERMS
1. AGELITY
will provide, at no cost to SPONSOR, the development and hosting of web based
SPONSOR
branded Pharmacy Locator and Drug Pricing tools.
2. AGELITY
shall pay to SPONSOR the applicable “Rate” according to Schedule 1 for
transaction fee
AGELITY collects from participating pharmacies.
Schedule
1
Billable
Claims Per Month
|
Tier
|
Min
|
Max
|
Rate
|
|
1
|
0
|
50,000
|
$
2.00
|
|
2
|
50,001
|
and
above
|
$
3.00
|
3. Transaction
fees only apply to prescriptions that adjudicate at negotiated discount rates.
Prescriptions
that adjudicate at the pharmacy’s Usual & Customary price do not qualify for
transaction
fee payment and are not considered “Billable”.
4. AGELITY
is under no obligation to pay uncollected transaction fees to SPONSOR if for any
reason these
funds can not be collected from participating pharmacies.
7. Transaction
fees will be paid within 45 days of the end of each month.
8. All
SPONSOR implementation and setup fees have been waived.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
|
Agelity,
Inc.
|
GetRxRelief,
LLC
|
||
|
Company
|
Company
|
||
|
Robert
E. Duggan
|
Gerard
J. Ferro
|
||
|
Name
|
Name
|
||
|
President
& CEO
|
Chief
Executive Officer
|
||
|
Title
|
Title
|
||
| /s/ Gerard J. Ferro | |||
|
Signature
|
Signature
|
||
| 5/6/08 | |||
|
Date
|
Date |
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