Attached files
Exhibit 10.7
FINAL 8119/2009
MARKETING
AGREEMENT
This
Marketing Agreement (this "Agreement") is made and entered into as of the 1
st day of
February, 2009, (Effective Date) by Healthcare Corporation of America, its
subsidiaries,
including Prescription Corporation of America (PCA) and affiliates (hereinafter
collectively referred to as "HCA"), a New Jersey corporation with a mailing address of 36 Kevin Drive Suite 1 00, Flanders, New Jersey 07836 and NIA MY, LLC,a New
Jersey limited liability company and its parents, affiliates and subsidiaries,
d/b/a! "USC" with a principal place of business located at 66 Route 17
North
Paramus, NJ 07652 (hereinafter "NIA"); NIA and
HCA may be referred to within this Agreement, either separately as a "Party"
orcollectively
as the "Parties."
RECITALS
WHEREAS,
HCA is, inter alia, a closed door pharmacy
servicing nursing homes and assisted
living facilities, offering mail order and central fill programs to employers
including
non-profits (hospital, school districts colleges, universities and SOI(C) 3
organizations)
(the "Work Product"); and
WHEREAS,
NIA is a general insurance agency providing insurance sales, brokerage
services,
insurance consulting services and other financial and general consulting
services.
WHEREAS,
NIA desires to perform certain marketing services for HCA and HCA desires
to utilize NIA's marketing services.
WHEREAS,
NIA is willing to assist HCA in marketing its Work Product to potential
customers
and consulting with HCA and potential customers to market HCA's Work
Product
to various 501 (c )(3) and
other qualified non-profit entities. NIA shall, from time to time,
fax lists of potential customers it desires to pursue to HCA. All
potential customers
on any list or document provided to HCA shall be deemed NIA's confidential
information
as that term is defined herein. Thereafter, HCA may instruct NIA not to
pursue
any such potential customer onthe list provided by N1A.
HCA shall notify NIA in
writing, within three (3) day if
HCA does not want NIA to pursue a potential customer on behalf
of HCA on such list. Anything to the contrary contained herein notwithstanding,
HCA may not instruct N1A not to pursue a customer on any such list if
NIA is
already providing insurance services to the prospective HCA customer. Nothing
herein
shall preclude NIA from soliciting the prospective customer for its own account.
An
approved customers shall be listed in an" Approved Customer" list maintained by
both NIA and
HCA. All potential customers disapproved by HCA shall be listed in a Schedule
of
"Disapproved Customers" maintained by both NIA and HCA; and
WHEREAS,
the Parties have entered into discussions and disclosed certain business
contacts
and information to each other and each Party desires to protect the
information
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from
further unauthorized disclosure and attempt, through the disclosure of the
protected and
Confidential Information, to further their collective goal to increase sales of
HCA's Work
Product; and
WHEREAS, each Party has made its
disclosures and discussions with the understanding that the
information and business contacts were being disclosed subject to certain
confidentiality
and non-circumvention terms, and the Parties wish to formalize that understanding
with respect to all such past disclosures and to all future disclosures and to
clarify
their understanding concerning compensation, fees and the conduct of their
activities;
and
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
conditions
hereinafter set forth, the Parties hereby agree and state as
follows:
ARTICLE
ONE
SCOPE
OF AGREEMENT
The
non-exclusive purpose of this Agreement is to set forth the terms of the
agreement between
NIA and HCA with respect to the grant by HCA to NIA to use, represent,
participate
in and market those certain concepts, programs, techniques, processes,
marketing
materials, sales materials, merchandising materials, and systems that
constitutes
HeA's Work Product. NIA also may utilize the HCA Work Product to supplement
the insurance products and services it offers for sale through its employees,
brokers
and other representatives.
ARTICLE
TWO
ENGAGEMENT
FOR SERVICES
1. DUTIES
OF THE PARTIES:
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A.
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HCA
and NIA agree to work together and support each other's interests in (1)
marketing
and sale of HCA's Work Product. HCA shall. in its sole discretion, direct
all insurance opportunities outside the County of Middlesex, NJ,
identified by
HCA and/or HCA's Agents to NIA for the sale of all such
insurance.
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B.
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HCA
developed concepts, presentation materials (marketing, promotional and
sales
support), computer programs, proposal and administrative systems, formats,
forms,
computer screen shows, slides, and other materials, documents, techniques,
processes
and programs for use by NIA. Subject to the terms and conditions of this
Agreement, HCA hereby grants to NIA the non-exclusive and non-transferable
right to reproduce and use all forms, materials, documents, concepts,
ideas,
and other items provided to NIA by HCA hereunder (hereinafter referred to
collectively
as (the "Work Product") in accordance with and subject to the terms and
conditions of this Agreement. HCA represents that all Work Product is true
and accurate and NIA may rely on the contents thereof for all
purposes.
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C.
Training
HCA will provide NIA with the necessary
training, information, and knowledge to
effectively represent the HCA Work Product.
E. Acceptance
Procedure.
| The following customer referral, the agreed acceptance procedure shall apply with respect to all prospective customers identified by NIA: (1) When NIA identifies a potential customer, NIA shall notify HCA in writing, providing the pertinent information concerning the customer; (2) HCA will review the potential customer information to determine if HCA wish NIA to pursue the marketing lead; (3) If HCA decides NIA should pursue the marketing lead and potential customer, HCA will create an acceptance document (hereinafter referred to as the "Acceptance Document") in the form attached hereto as Schedule ~, which it will send to NlA, within one (1) business day from acceptance from HCA, with an authorized officers' signature affixed thereto; and (4) HCA gives authorifl.to NIA to sign the acceptance document in the form attached as Schedule to confirm the customer relationship under this Agreement. (5) If HCA rejects the potential customer solicited by NIA either because it is an existing HCA client or it appears on a previously submitted existing "Approved Customer List" or is a potential customer being pursued by RCA or another RCA affiliate), HCA or the HCA affiliate may continue to pursue the potential customer. |
| F. | NIA is free to contract with other vendors to market their products and services. Except as limited by the terms of this Agreement, RCA also reserves the right to engage in direct solicitations itself of its own Work Product as it becomes available to both existing and new customers, as well as other providers (Insurance Companies, TPAs, Consultants, Brokers, etc.) subject to the terms and conditions of this Agreement. HCA will indemnify NIA for any RIP AA violations that result from RCA's solicitation describe in this Article Two (I)(F). NIA will be paid compensation for all business generated as a result of ReA's solicitation ofNIA's customers under this Section or this Agreement. |
| G. | RCA developed concepts, presentation materials (marketing, promotional and sales support), computer programs, proposal and administrative systems, formats, forms, computer screen shows, slides, and other materials, documents, techniques, processes and programs for use by NIA. Subject to the terms and conditions of this Agreement, HCA hereby grants to NIA the non-exclusive and non- transferable right to reproduce and use all forms, materials, documents, concepts, ideas, and other items provided to NIA by HCA hereunder (hereinafter referred to collectively as (the "Work Product") in accordance with and subject to the terms and conditions of this Agreement. RCA represents that all Work Product is true and accurate and NIA may rely on the contents thereof for all purposes. |
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H.
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HCA,
in its commercially reasonable discretion, and so long as in its commercially
reasonable judgment there is not conflict of interest present, shall direct
all group benefit opportunities identified by HCA its affiliates and/or
HCA's
Agents, in the State of New Jersey to NIA for the sale of a group benefit product
that suits the respective party's needs and requirements (except Middlesex
County which opportunities will be directed to NIA in the reasonable discretion
of
HCA.
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I.
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Non
Solicitation of Prospects. Except in the situation that HCA or a
previously authorized
HCA Broker previously solicited a prospective prospect submitted by NIA,
RCA may not solicit, either directly or indirectly any prospect that were
provided
by NIA pursuant to this Article 2 (I)(E) above unless NIA is paid compensation
set forth in this Agreement. In the event that HCA does not accept a prospect
submitted by NIA, it identifies, in writing, the date HCA or an HCA authorized
broker solicited the
prospect.
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J.
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Anything
to the contrary contained herein notwithstanding, if no sales activity has
taken
place with respect to a Schedule A customer for a period of nine (9) consecutive
months then HCA, at their option, may provide written notice to NIA of
the lack of sales activity with respect to such customer. If NIA fails to
provide HeA
evidence of some sales activity within thirty (30) days after receiving
such notice,
then HCA can respond to requests for support from non-NfA agents and brokers
with respect to such customer. In the event of a notice is received from
HCA
under this Section, NIA shall not be entitled to any commission resulting
from
sales to customer. For purposes of this paragraph, sales activity with
respect to
a customer shall be either (i) active demonstrable solicitation of such
customer by
NIA, or; (ii) request for meetings or conference calls with such customer
by NIA.
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ARTICLE
THREE
REPRESENTATIONS
AND WARRANTIES
| A. | The Parties hereby represent and warrant to each other that (i) they have all thenecessary power and authority to enter into this Agreement and that this Agreement and performance hereunder does not and will not violate the terms of any other contract, covenant or agreement between HCA or NIA and any other third party, now existing or hereinafter entered into; (ii) they are now and will remain in compliance with all applicable federal, state, or local laws, rules or regulations which pertain to this Agreement; (iii) they possess all licenses, permits and approvals necessary to actuate this Agreement; (iv) HCA has made all commercially reasonable efforts to assure that the Work Product is now and at all times during this agreement complies with all applicable Federal, state and local laws, orders and regulations; (v) they will not share any compensation earned under this Agreement with any other person or entity if the sharing of such compensation would be in violation of any law or regulation; and (vi) they shall at all times protect and preserve all goods and materials of NIA when such goods or materials are in the possession of HCA. |
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| RCA further represents and warrants that it has developed and owns the Work Product and that it has the right to allow NIA access to it in accordance with this Agreement. However, the parties recognize and acknowledge that other persons or entities may have or may subsequently develop programs, concepts or techniques similar to the Work Product, or any component thereof, and HCA does not warrant to NIA that HCA has the exclusive right to any of the concepts or ideas underlying or which form the basis of the HCA Work Product, or any component(s) thereof. | |
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NIA
hereby represents and warrants to HCA that (i) it has all necessary power
and authority
to enter into this Agreement and that this Agreement and performance
hereunder
does not and will not violate the terms of any other contract, covenant or
agreement
between NIA and any third party now existing; (ii) it possesses all
licenses, permits
and approvals necessary to actuate this Agreement; (Hi) it is now and will
remain in
compliance with all applicable federal, state, or local laws, rules or
regulations which pertain
to this Agreement; (iv) it is familiar with and in compliance with any
legal requirements
which relate to the discharge of its responsibilities in the provision of
this Agreement;
and (vi) it shall at all times use reasonable commercial efforts protect
and preserve
HCA's Confidential Information when it is in NIA's
possession.
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| C. | Each party represents, warrants and covenants to the other that (i) it has adopted and maintains policies to (a) ensure the security and confidentiality of customer records and information; (b) protect against any anticipated threats or hazards to the security orintegrity of customer records and information, (c) protect against unauthorized access to or use of customer records or information that could result in substantial harm or inconvenience to any customer, and (d) protect against unauthorized disclosure of non- public personal information to unaffiliated third parties. Each party agrees to promptly notify the other upon discovery of the loss or unauthorized disclosure of non-public personal information of the other party's customers. Each party represents, warrants and covenants that it agrees that all nonpublic personal information, including names, addresses, and other customer specific data, and any other information received by any party ("Private Information") shall remain confidential and shall not be disclosed to any third party except for the limited purposes of carrying out its obligations under this Agreement, including administration and servicing, or unless such Private Information is required to be disclosed by any regulatory authority or court of competent jurisdiction. Furthermore, except as provided above, such Private Information shall not be used by the party to whose attention it has come, or by any person or entity affiliated with such party, without the prior written consent of the other party for any purpose whatsoever. The obligations of confidentiality in this Paragraph shall not apply to information which a party independently develops, information which is or becomes known to the public other than by breach of this Paragraph or information rightfully received by a party from a third party without the obligation of confidentiality. The obligations of this Paragraph shall survive the termination ofthis Agreement or any part hereof |
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FINAL 8J19J2009
ARTICLE
FOUR
TERM
AND TERMINATION
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4.1
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A.
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The
Initial Term of this Agreement shall commence on the Effective Date indicated
above and will continue for one year from the Effective Date (the "Initial
Term"). Upon the expiration of the Initial Term, this Agreement shall
automatically
be renewed for successive one-year terms (each a "Renewal Term"),
unless either party notifies the other in writing, at least thirty (30)
days prior
to the applicable expiration date, of its intent to terminate the
Agreement at the
expiration of such Initial Term or Renewal Term. Subsequent to the initial
term,
this agreement may be terminated for convenience on one hundred eighty
(180)
days written notice by either
party.
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4.2
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Notwithstanding
any termination or the reason for such termination, whether with or
without cause, NIA shall be vested in all compensation earned prior to the
termination
or pending at the time of such termination of this Agreement. Payment
of compensation shall continue whether or not this Agreement is terminated
for cause or without cause for so long as the Accepted Customers areutilizing
services provided by HCA. HCA shall amend its Customer Agreement to disclose
the fact NIA is vested in all such payments from HCA to NIA. Notwithstanding
anything to the contrary contained herein, in the event that a
pre-existing
NIA client seeks to terminate their relationship with NIA to do business
with
a broker without a pre-existing contractual relationship with HCA, HCA
shall
service such client as a "house account" and not permit any non-qualified
broker
to service such client. NIA shall continue to receive all compensation due
under
this agreement for the "house accounts" unless such account(s) elect to
terminate
its relationship with NIA to do business with a broker with a preexisting
contractual
relationship with HCA. In the event the broker did not have a preexisting
relationship with HCA, RCA will continue to pay NIA all sums due
for
the client hereunder. For the purpose of this Section 4.2, non-qualified
broker is
defined as a broker lacking a pre-existing written contractual
relationship with
HCA.
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4.3
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Termination
for Cause. Any Party may terminate this Agreement immediately, upon
written notice to the other Parties; (i)(ii)(iii) in
the event of fraud, gross and willful misconduct, or abandonment on the
part
of any Party; if
any Party is convicted of any felony related to its business responsibilities;
in
the event of material breach of any material obligation under this
Agreement,
and after such breach remains uncured for a period of sixty (60)
days after written notice thereof from the other Parties, or if such
breach
requires more than sixty (60) days to cure, and such cure is not commenced
within sixty (60) days after written notice thereof, and thereafter
diligently
pursued;
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4.4
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In
the event this Agreement is terminated with or without cause, NIA shall
continue
to receive all compensation due them from HCA, for all existing customers
with effective dates prior to the termination of this Agreement, in accordance
with ARTICLE FOUR, as long as: (i)
the
existing customers retain the HCA product for the life of the customer
contracts
and shall include any and all subsequent extensions or automatic renewals
resulting from the initial term
thereof,
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4.5
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Termination
of the Agreement shall not relieve the parties of any obligations arising
prior to such termination or, which, under the terms of this Agreement,
continue
after the termination, including without limitation Articles 5, 6, 7 and
any
other terms and conditions pertaining to such fees or compensation. In the
event
of termination by any party hereto, HCA and NIA shall agree on the wording
of any notices to be sent to any customer, if necessary and subject to the
requirements
of any Applicable Laws, concerning any matter within the scope of this
Agreement.
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4.6
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Each
party acknowledges and agrees that if it breaches any of the
provisions of this
Agreement, the other party may sustain irreparable harm, and therefore the
breaching
party hereby agrees that, in addition to any other remedies that the other
party
may have under this Agreement or any law, the other party shall be
entitled to
equitable relief, including but not limited to specific performance and/or
temporary/permanent
injunctions and/or restraining orders, restraining the breaching
party from committing or continuing to commit the violation of the terms
and conditions of this Agreement, and the breaching party shall be liable
for all
of the other party's expenses, including but not limited to reasonable
legal fees,
in obtaining such equitable relief. Except as otherwise specifically set
forth herein,
nothing in this section shall be deemed consent to injunctive relief
against the
Company, its subsidiaries or its
agents.
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4.7
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Termination
for Insolvency. This Agreement may be terminated at any time by either
party, effective immediately upon written notice to the other party, if
the other
party: (i) applies for or consents to the appointment of, or the taking of
possession
of its property by, a receiver, custodian, trustee, rehabilitator or
liquidator;
(ii) admits in writing its inability to pay its debts as they become due;
(iii)
makes a general assignment for the benefit of creditors; (iv) is
adjudicated as bankrupt
or insolvent; (v) files a voluntary petition in bankruptcy or a petition
or answer
seeking reorganization, an arrangement with creditors or to take advantage
of
any insolvency law or an answer admitting the material allegations of a
petition filed
against it in any petition in bankruptcy, reorganization or insolvency
proceeding;
or (vi) initiates an action of dissolution or
liquidation.
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ARTICLE
FIVE
COMPENSATION
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5.1
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In
consideration of the services rendered under this Agreement, HCA agrees to
compensate
NIA, the sum of Eleven Dollars and Fifty Cents ($11.50) per year per enrolled
employee for all customer contracts executed as a result of this Agreement..
The initial marketing fee due NIA shall be Eight Thousand ($8,000.00)
Dollars per year based on the clients obtained by NIA for I-ICA at the
time
of the signing of this Agreement. Not later than ninety (90) days from the
execution
ofthis Agreement, HCA shall make the initial payment, to NIA, of Two Thousand
Twenty Five ($2,025.00) Dollars. Thereafter HCA shall pay NIA the sum
of Two Thousand ($2,000.00) Dollars per quarter adjusted based upon actual
employees
enrolled by NIA. The marketing fee for year 2 of this Agreement shall
be
adjusted to reflect a minimum fee equal to fees paid by HCA to NIA in year
1 of
the Agreement plus the actual quarterly employee enrollment payments.
Payments
to NIA will be made on a quarterly basis with payments due NIA on the
fifteenth
day following the end of the respective quarter. No payment due under
this
Agreement will be made more than fifteen days following the close of any
quarter.
During the term of this Agreement, NINs Consulting fee may not be
unilaterally
reducedby HCA. For any customer that NIA places with HeA, NIA will
receive compensation from HCA as noted above, plus any additional bonus
approved
by HCA's board of
directors.
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5.2
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The
Parties agree that NINs marketing fee shall be payable to NIA Group, LLC,
at
66 Route 17 North, Paramus, NJ 07652 as the sole designated payee for all
fees due
under this Agreement. RCA will also track revenue generated from the NIA
customers
solicited under this Agreement and provide a monthly HIPPA compliant
statement of revenue to NIA that reflects the revenue and customer account,
amount of product purchased from HCA, usage, product sold and any other
data reasonably required by NIA to track sales under this
Agreement.
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5.3
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With
respect to the sale of products and services, NIA will be notified by RCA
of new
products and services, such as PBM and Reinsurance as they are made available.
NIA is not obligated to market any product it does not agree in writing
to
market on behalf of PCA. The failure of NIA to market any product shall
not be
deemed a default under this Agreement or cause to terminate this
Agreement
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5.4
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NIA
shall have the right at any time, but not more than two times per calendar
year,
with reasonable advanced notice, to have a independent firm of public
accountants
review HCA's books and records to determine whether all payments due
under this Agreement have been made as required. The independent firm of
public
accountants sign a reasonable nondisclosure agreement before beginning
its
review. For two (2) years after the last payment under this Agreement is
due, HCA
agrees to make and maintain sufficient books, records and a11i regarding
the business activities under this Agreement in order to permit NIA's
accountants
to audit, calculate and confirm any amounts due with respect to this
Agreement.
Audits may not be conducted more than once every per calendar
year.
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| (a) during the term of this Agreement, and (b) for up to forty (40) months thereafter, in all events with the conduct and timing of such audit to becommercially reasonable. The cost for such audit shall be borne by NIA unless there is a ten (10%) discrepancy between the amount paid and the amount due. In such instance, HCA shall bear the costs of the audit. All information disclosed to NIA during the audit process shall remain confidential and may not be utilized by NIA in any manner. |
ARTICLE
SIX
INDEMNIFICATION
I
NON-SOLICITATION
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6.1.
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RCA,
its subsidiaries, including subsidiaries and affiliates agree to
indemnify, defend
and hold NIA, its subsidiaries, officers, directors, employees and NIA's
Agents
harmless from and against any and all costs, expenses, losses, judgments,
damages,
liabilities and other amounts (including, without limitation, attorneys'
fees
and settlement amounts) arising in connection with any suit, claim or
proceeding,
or other action to the extent that such costs, expenses, losses, judgments,
damages, liabilities or other amounts are attributable to the negligence
or
willful misconduct of RCA, and their respective officers, directors or
employees,
or are in any way connected with the material breach by HCA of any of
their obligations, representations or warranties under this
Agreement.
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6.2.
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NlA
agrees to promptly notify RCA of any potential claims or assertions that
may,
if proven true, result in any liability under this
Agreement.
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6.3
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No
Solicitation of Employees. The parties agree that they will not, for a
period of two
(2) years from the termination of this Agreement, initiate contact with
the other
party's employees in order to solicit, entice or induce any employee to
terminate
an employment relationship with the other to accept employment with the
party soliciting the said employee. Any employee that leaves NIA's employ
or terminates
their employer/employee relationship with NIA within twenty four (24)
calendar months, from the end date of this Agreement, to work for HCA
directly
or indirectly, will be conclusively presumed to be HCA's employee and
in
such case HCA will pay NIA, a fee equal to three (3) times the employee's
annual
salary. All sums due will be paid within thirty (30) days of
demand.
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6.4
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The
obligations of this Section 6 shall survive the termination of this
Agreement or
any part hereof.
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ARTICLE
SEVEN
CONFIDENTIALITY
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7.1.
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HCA,
its subsidiaries, PCA and affiliates expressly acknowledge that all information
disclosed by NIA to HCA pursuant to this Agreement, as well as all non-public
information about NIA's internal affairs, business plans, products, business
practices and all information dealing with NIA's past, present or prospective
customers (hereinafter "NIA Confidential Information") remains the exclusive
property of NIA, and that NlA has proprietary rights in and to NIA's Confidential
Information and that such NIA's' Confidential Informationconstitutes
confidential information and trade secrets of NIA. HCA, its subsidiaries
and affiliates expressly recognize that all NIA' s Confidential Information
pertaining to the business of NIA received pursuant to the carryingout
of this Agreement shall remain confidential and shall not be disclosed to
any other
person, firm or corporation except as required in the specific performance
of this
Agreement. The foregoing confidentiality obligation shall not apply to
such Licensee
Confidential Information which: (i) at the time of disclosure, is publicly
available
or in the public knowledge; (ii) after disclosure, lawfully becomes part
of
the public knowledge through publication or otherwise, but through no
fault of the receiving party; (iii)
the receiving party possesses at the time of disclosure of such
Licensee Confidential Information and which was not acquired, directly or
indirectly,
from the disclosing party; (iv) was acquired by the receiving party from
a third party who has the right to disclose such Licensee Confidential
Information;
(v) is independently developed by the receiving party without reference
to the Licensee Confidential Information; or (vi) is required to be disclosed
by law. RCA,
its subsidiaries and affiliates nor any of their employees, officers
oraffiliates shall use any ofNIA's Confidential Information learned in the
course oftheir
relationship with NIA for any purposes other than those contemplated by
thisAgreement.
HCA, its subsidiaries and affiliates and/or their employees,
officersor
affiliates shall not disclose any Licensee Confidential Information to any
thirdparty
except in order to perform its obligations under this
Agreement.
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7.2.
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The Parties
acknowledge that all information, including without limitation
information
about the disclosed by RCA to NIA pursuant to this Agreement, as
well
as all non-public information about HeA's internal affairs, business
plans, products,
business practices (hereinafter "HCA Confidential Information")
remains
the exclusive property of HCA and that HCA has proprietary rights in
and
to the HCA Confidential Information and that such HCA's Confidential
Information
constitutes confidential information and trade secrets of HCA. NIA
expressly
recognizes that RCA Confidential Information pertaining to the
business
of HCA received pursuant to the carrying out of this Agreement shall
remain
confidential and shall not be disclosed to any other person, firm or
corporation
except as required in the specific performance of this Agreement.
The
foregoing confidentiality obligation shall not apply to such HCA
Confidential Information
which: (i) at the time of
disclosure, is publicly available or in the public
knowledge; (ii) after disclosure, lawfully becomes part of the public
knowledge
through publication or otherwise, but through no fault of the receiving
party;
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ARTICLE
EIGHT
NOTICES
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8.1
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Any
notice or other request or communications required hereunder shall be in
writing
and shall be deemed given when personally delivered or sent by overnight
carrier
to the parties at the respective addresses set forth above or to such
other address
as the parties shall specify by notice
similarly sent. If Notice to the NIA, notice
shall be delivered to Roger Gross, Executive Vice President and Chief
Operating
Officer, with a copy to Steven L. Grossberg,
President.
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ARTICLE NINE
MISCELLANEOUS
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9.1
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Governing Law and
Jurisdiction. This
Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey applicable to contracts
entered into therein, without reference to principles of choice of law or
conflicts
of laws. If any action or proceeding involving such questions arises under
the Constitution, laws, or treaties of the United States of America, or if
there
is a diversity of citizenship between the parties thereto, so that it is
to be brought
in a United States District Court, it will be brought in the United States
District
Court for the District of New
Jersey.
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9.2
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Entire
Agreement. The provisions, terms and conditions of this Agreement
represent
the entire agreement between the parties in relation to the subject matter
hereof,
and this Agreement supersedes any other agreement, understanding or representation,
verbal or otherwise, relative to the subject matter hereof, between the
parties prior to the time of execution of this Agreement. This Agreement
shall be
binding upon the heirs, executors, administrators, successors, permitted
assigns or
transferees of each Party and its shareholders, if any. This Agreement may
be amended
only by a written instrument executed by all of the
Parties.
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9.3
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Severability. If
any clause, paragraph, term or provision of this Agreement shall be
held or declared void or otherwise unenforceable by any court or other
tribunal of
competent jurisdiction, the same shall be deemed
severed. and such holding declaration
shall have no effect upon any other clause, paragraph, term, or provision
of this Agreement, and this Agreement shall otherwise continue in and
be
given full force and
effect.
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9.4
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No Waiver. No
delay or omission on the part of any party in exercising any right under
this Agreement shall operate as a waiver of any such right or of any other
right.
Waiver on anyone occasion shall not be construed as a bar to or waiver of
any
such right or remedy on any future
occasion.
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9.5
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Independent
Contractors. Except as expressly provided herein, it is the express intention
of the parties to be considered independent contractors and that nopartnership
or joint venture shall be created as a result of this Agreement, that
none
of the parties shall be the agent, legal representative, franchisee or
employee of
another for any purpose whatsoever, and that no party is granted any right
or authority
to assume or create any obligation for or on behalf of, or in the name of,
or
in any way to bind another party. AU parties agree not to incur or
contract any debt
or obligation on behalf of any other party or commit any act, make any
representation
or advertise in any manner, which may adversely affect any right of
another party or be detrimental to its good name and
reputation.
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9.6
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Amendments.
Except as expressly provided herein, this Agreement may be amended
or modified only by a written instrument executed by a duly authorized
representative
of each party.
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9.7
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Force Majeure.
As used herein, "Force
Majeure" means any Act of God, act ofcivil
or military authority, war, criminal act, fire, explosion, earthquake,
flood, weather
condition, power failure, labor problem, accident, or any other cause,
beyond
a party's or its designee's reasonable control. No failure or omission in
the
performance of any obligation hereunder shall be deemed a breach of this
agreement or create any liability
for damages if such failure arises from a Force Majeure
event; provided, however, that the party unable to perform shall
continue to
exercise its best efforts to overcome the disability and find an
alternative or substitute
for the performance of its
obligations.
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9.8
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Counterparts.
This Agreement may be executed in any number of counterparts, all
of which when taken together will constitute a single
instrument.
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9.9
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Parties Executing. The parties
executing this Agreement warrant that they have the
requisite authority to do
so.
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9.10.
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Insurance: NIA shall be required
to maintain insurance for at least $1 million per occurrence/Sl
S million annual aggregate, and HCA shall be required to maintain insurance
for at least $1 million per occurrence/$15 million annual aggregate, covering
negligent acts, errors, or omissions for the services HCA is providing
under
this Agreement. Such coverage shall be underwritten by "A" rated or better
insurance
carriers.
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9.11
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Addenda. From time to time, the
parties may mutually agree to modify this Agreement
through an Addendum and execute it in writing as an
attachment to this
Agreement (each an "Addendum" and collectively the "Addenda"). To the
extent
that any provision of an Addendum conflicts with any provision of this
Agreement
that is not contained in an Addendum, the provision on the Addendum shall
govern the construction and interpretation of this Agreement. To the
extent that
any provision of an Addendum conflicts with any provision of any other
Addendum,
the provision of the latest Addendum shall govern the construction and
interpretation of this
Agreement.
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9.12.
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Recitals and Schedules Part of
Agreement. The Recitals, Schedules, and Exhibits are
an integral part of this Agreement, and any reference herein to this
Agreement will
be deemed to mean and include a reference to such Recitals, Schedules, and
Exhibits.
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9.13.
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Construction. (a) It is hereby understood that the parties have jointly negotiated this Agreement. In the event of an ambiguity or question of intent or interpretation, this Agreement will be construed as if all parties jointly drafted it. No presumption or burden of proof will arise favoring or disfavoring any Party hereto by virtue of the authorship of any of the provisions of this Agreement.(b) Asused herein, (a) the term "person" means a natural person, a trustee, a Corporation, a partnership, a limited liability company and any other form of legal entity; and (b) all reference made in all genders (I) in the neuter, masculine, or feminine gender will be deemed to have been made in all genders, (ii) in the singular or plural number will be determined to have been made, respectively, in the plural or singular number as well and (iii) to a section, subsection, paragraph, or subparagraph will, unless therein expressly indicated to the contrary, be deemed to have been made to such section, subsection, paragraph, or subparagraph of this agreement. |
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SIGNATURE PAGE FOLLOWS
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written
above.
HEALTHCARE
CORPORATION OF AMERICA, ITS SUBSIDIARIES, INCLUDING PRE CORPORATION
OF AMERICA (PCA) AND AFFILIATES:
APPENDIX A TO FOLLOW
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/s/Roger
Gross
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/s/Gary
J. Sekulski
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Name:
Roger Gross
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Name:
Gary J. Sekulski
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Title:
Executive Vice-President, and Cheif Operating Officer
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Title:
Cheif Executive Officer
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