EXHIBIT 10.11
[CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.]
ADVANCEPCS, L.P.
MANAGED PHARMACEUTICAL BENEFIT AGREEMENT
CONSUMER CARD PROGRAM
THIS AGREEMENT (the "AGREEMENT") is made as of July 1, 2001 (the
"EFFECTIVE DATE") by and between INTERNATIONAL HEALTH PARTNERS, INC.
("CUSTOMER") and AdvancePCS, L.P., a Delaware limited partnership, together with
its affiliates ("ADVANCEPCS"), for the purpose of delineating the terms and
conditions under which AdvancePCS will provide certain managed pharmaceutical
benefit services to Customer.
1. DEFINITIONS
As used in this Agreement, the following terms and phrases, when
capitalized, shall have the meanings set forth below.
1.1. "ADVANCEPCS" shall mean the corporation AdvancePCS and any
subsidiaries or affiliates thereof.
1.2. "BASE SERVICES" means those Services described in Exhibit
A--Sections 1, 3A, 4 and such other services listed in Exhibit
A hereto which are selected by Customer pursuant to the
implementation documents (collectively the "SERVICES").
1.3. "BENEFITS" means the prescription drug discounts for which
Members are eligible pursuant to the Plan.
1.4. "CHANGE IN LAW" means any change in any Law, or change in the
judicial or administrative interpretation of, or adoption of,
any Law occurring after the Implementation Date or the date
this Agreement is executed, whichever is earlier.
1.5. "CLAIMS" shall mean claims processed by AdvancePCS in
connection with the Plan.
1.6. "IMPLEMENTATION DATE" means the date on which AdvancePCS
begins processing Claims under this Agreement.
1.7. "LAW" means any federal, state, local or other constitution,
charter, act, statute, law, ordinance, code, rule, regulation,
order, specified standards or objective criteria contained in
any applicable permit or approval, or other legislative or
administrative action of the United States of America, or any
state or any agency, department, authority, political
subdivision or other instrumentality of either thereof or a
decree or judgment or order of a court.
1.8. "MEMBER" means an individual who has been designated by
Customer in writing (or by electronic, tape or other means
approved by AdvancePCS) to AdvancePCS as eligible for Benefits
under the terms of the Plan.
1.9. "NETWORK PROVIDER" means a provider that has agreed to provide
certain pharmacy services to Members in accordance with the
terms of its agreement with AdvancePCS.
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1.10. "PLAN" means the processing parameters and other information
concerning Customer's prescription discount plan, as disclosed
by Customer to AdvancePCS pursuant to Section 4.1 hereof,
which will be used by AdvancePCS to process Claims under this
Agreement.
1.11. "RECORDS" means any records the parties have regarding the
Claims Information in connection with this Agreement.
1.12. "SERVICES" shall have the meaning used in Section 2.2.
1.13. "SYSTEM" means AdvancePCS' proprietary remote electronic
claims adjudication process.
2. STATEMENT OF SERVICES
2.1. GENERAL. AdvancePCS shall provide Services to Customer under
this Agreement under AdvancePCS' "Consumer Card Program" (the
"Program"), a pharmaceutical benefit management program
pursuant to which a Member pays one hundred percent (100%) of
the applicable Network prescription price at the point of
sale.
2.2. SERVICES. AdvancePCS shall provide to Customer the Base
Services and such other Services listed in Exhibit A hereto
which are selected by Customer (collectively, "SERVICES").
2.3. ADDITIONAL SERVICES. If (i) Customer requests AdvancePCS to
provide services other than the Services, including but not
limited to special research projects, reports not included in
Services, additional identification cards or other tasks to be
specifically performed for or on behalf of Customer, (ii) to
initially implement the Plan or to implement changes to the
Plan AdvancePCS is required to make system changes, or (iii)
AdvancePCS incurs costs or charges necessitated by the acts or
omissions of Customer, then, in any event, Customer shall pay
to AdvancePCS an additional charge to be mutually agreed upon
by the parties in writing before such services ("Additional
Services") are provided.
2.4. COMPLIANCE WITH LAW. Customer acknowledges that AdvancePCS
shall have no responsibility to advise Customer regarding
Customer's compliance with any applicable federal, state or
local law, including, without limitation, the Employee
Retirement Income Security Act ("ERISA") and the Americans
With Disabilities Act ("ADA"). Upon Customer's request and at
its expense, AdvancePCS shall cooperate and take reasonable
steps to comply with any Laws applicable to the creation or
maintenance of a pharmacy network, including any willing
provider Laws. Customer shall furnish AdvancePCS, in a timely
manner, all information necessary for such cooperation and
compliance efforts.
3. FEES AND PAYMENT
3.1. FEES. As consideration for the Services (including, but not
limited to, Formulary Services), Customer shall pay to
AdvancePCS or shall require Member to pay to AdvancePCS the
applicable fees for such Services specified in Exhibit B. [**]
** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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[**] AdvancePCS shall invoice Customer for any fees (for services other than
Base Services) monthly, and payment shall be due within twenty (20) days of
Customer's receipt of the invoice. Customer agrees to make any necessary
disclosures to, and obtain any necessary authorization from, Members as required
by Law to properly authorize payment to AdvancePCS.
3.2. LATE PAYMENTS. If at any time Customer shall fail to pay
AdvancePCS on or prior to the due date any amount owing to
AdvancePCS hereunder, Customer shall pay to AdvancePCS an
amount (the "FINANCE CHARGES") equal to interest on such
overdue amount(s) at the Periodic Rate; provided, however,
that if the Periodic Rate exceeds the maximum legal rate
permitted by Law, the Periodic Rate shall be reduced to the
maximum amount permitted by Law.
3.3. CERTAIN REMEDIES. Notwithstanding Section 9, if at any time
Customer shall fail to pay AdvancePCS on or prior to the due
date any amount owing to AdvancePCS hereunder, AdvancePCS
shall have the right, upon written notice to Customer via
facsimile to the facsimile number provided in the Agreement,
to (1) suspend performance of any and all of AdvancePCS'
obligations under or in connection with this Agreement,
including AdvancePCS' obligation to process Claims, (2)
immediately advise Network Providers that the AdvancePCS
prescription adjudication system is not available in
connection with the Plan, (3) apply all or any portion of any
security posted by Customer with AdvancePCS to Customer's
delinquent account and (4) set off against any amounts
otherwise payable to Customer under this Agreement any amounts
due from Customer under this Agreement. Customer shall be
responsible for all costs of collection and agrees to
reimburse AdvancePCS for such costs and expenses, including
reasonable attorneys' fees. Nothing in this Agreement shall
limit, and the parties agree that in addition to the rights
specified in this Section, AdvancePCS shall retain, any and
all rights AdvancePCS may have at law, equity or under this
Agreement.
3.4. SECURITY. If at any time and from time to time during the term
of this Agreement AdvancePCS shall determine, based on Claims
volume, payment record and/or Customer's latest financial
information, that there are reasonable grounds for insecurity
on the part of AdvancePCS as to the ability of Customer to
meet its financial commitments hereunder as they become due,
AdvancePCS shall have the right to require Customer to provide
security in such amount and form and at such time as
AdvancePCS deems necessary. Customer shall provide such
security within ten (10) days of AdvancePCS' request. Customer
agrees to furnish audited financial statements to AdvancePCS
from time to time upon AdvancePCS' request. Such financial
statements shall be kept confidential by AdvancePCS and used
solely for internal review purposes to determine credit
requirements.
4. CUSTOMER OBLIGATIONS
4.1. PLAN INFORMATION; MEMBER ELIGIBILITY. Throughout the term of
this Agreement, Customer, at Customer's expense, shall provide
to AdvancePCS any and all information concerning Customer's
Plan and Members needed by AdvancePCS to perform the Services
or any Additional Services, including, without limitation,
processing parameters
** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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and Member enrollment and eligibility updates. All such information shall be
complete and accurate and shall be provided in a format and media approved by
AdvancePCS.
4.2. CONFIRMATION REPORTS. From time to time, AdvancePCS may
provide Customer with reports confirming (i) all or some
portion of the Plan information submitted to AdvancePCS, (ii)
Member enrollment or eligibility data, (iii) Claims or billing
activity during a specific period, and/or (iv) any action or
actions taken by AdvancePCS in performing Services or
Additional Services hereunder. Customer shall review such
report and notify AdvancePCS in writing of any errors or
objections within twenty (20) days of receipt of the report.
Until Customer notifies AdvancePCS of any errors or
objections, AdvancePCS shall be entitled to rely on the
information contained in the report. If Customer does not
notify AdvancePCS of any errors or objections within such
twenty (20) day period, the information contained in the
report shall be deemed accurate, complete and acceptable to
Customer.
4.3. DRUG CLASSIFICATION/PRICING. Customer agrees to accept the
drug average wholesale price source(s) selected by AdvancePCS
for purposes of pricing and classifying (e.g., legend vs.
over-the-counter, brand vs. generic) drugs in connection with
this Agreement.
4.4. MEMBER AUTHORIZATIONS. Customer represents to AdvancePCS that
it has or shall obtain any Member authorizations required by
Law, if any, for AdvancePCS to perform the Services or any
Additional Services under this Agreement or under any
Implementation Document.
4.5. MARKETING MATERIALS. Customer agrees to use only AdvancePCS'
approved marketing brochures and other advertising materials
(in any medium) that has been approved by AdvancePCS. Customer
agrees to pay a reasonable charge, as established by
AdvancePCS, for such materials that are provided by
AdvancePCS. AdvancePCS may terminate this Agreement
immediately as provided in Section 8.2.6 in the event Customer
fails to comply with the provisions of this Section 4.5.
4.6. COMPLIANCE WITH LAW. Customer agrees to comply with all Laws
applicable to its Program, including without limitation
insurance licensing, antitrust, consumer protection, and any
other Laws that may apply. AdvancePCS shall have no
responsibility for determining the applicability or effect of
any such Laws.
4.7. MINIMUM MEMBERSHIP. Customer agrees that at all times during
the term of this Agreement, there shall be a minimum of ten
thousand (10,000) Members in Customer's Program. If, as of the
effective date of this Agreement, there are less than ten
thousand (10,000) Members in Customer's Programs, Customer
shall have a period of one hundred and twenty (120) days from
the effective date to reach the minimum membership as
described herein. If, after this Agreement has been in effect
for one hundred and twenty (120) days, Customer has not
reached the required ten thousand (10,000) minimum number of
Members, AdvancePCS may elect to terminate this Agreement
pursuant to Section 8.2.7.
4.8. OTHER OBLIGATIONS OF CUSTOMER. In addition to the obligations
of Customer specified in this Agreement, Customer shall
satisfy any and all obligations in any exhibits, schedules and
attachments hereto or in any Implementation Document.
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4.9. INDEMNITY. Customer agrees to indemnify and hold harmless
AdvancePCS for, from and against any and all costs, losses or
damages AdvancePCS may incur as a result of (i) Customer's
failure to perform any of its obligations under this
Agreement, (ii) the late receipt of information or the receipt
of any inaccurate or incomplete information provided by
Customer under Section 4.2, or (iii) any claim by an employee
or former employee of Customer or any of its affiliates under
any federal, state or local law that protects the rights of
such employees or their beneficiaries, including, without
limitation, ERISA and the ADA.
5. USE AND ACCESS TO INFORMATION
5.1. USE OF PRESCRIPTION INFORMATION. Subject to the provisions of
Section 6 regarding AdvancePCS' proprietary rights, each party
shall be entitled to use the information provided to
AdvancePCS by Network Providers and Members in connection with
Claims ("CLAIMS INFORMATION") in any manner such party deems
appropriate; provided, however, that each party shall maintain
the confidentiality of such information (including the
identity of any Member) to the extent required by applicable
Law, and shall refrain from any use of such information for
improper employment or other purposes. Each party shall be
solely responsible for its own use of the Claims Information,
and shall indemnify and hold harmless the other party for,
from and against any and all costs, losses and damages
incurred by such other party as a result of such use.
5.2. THIRD PARTY RECORDS REQUEST. If a Member or a Member's agent
or designee shall request to review or duplicate any Records,
AdvancePCS shall refer such Member to Customer. If AdvancePCS
receives a court order, subpoena or governmental request for
Records, AdvancePCS may comply with such order, subpoena or
request and, if such order, subpoena or request relates to
Records of Customer or any Member and not to AdvancePCS'
business generally, Customer shall reimburse AdvancePCS for
all costs incurred in connection therewith.
6. INTELLECTUAL PROPERTY
6.1. PROPRIETARY INFORMATION. Customer acknowledges that in
connection with providing Services under this Agreement,
AdvancePCS may disclose to Customer certain proprietary or
confidential technical and business information, databases,
trade secrets, and innovations belonging to AdvancePCS
(collectively, "ADVANCEPCS INFORMATION"), the value of which
might be lost if the proprietary nature or confidentiality of
such AdvancePCS Information is not maintained. Customer hereby
agrees to the following provisions:
6.1.1. AdvancePCS reserves all rights to the AdvancePCS
Information, including the proprietary and novel
features contained therein. Customer will not
disclose any of the AdvancePCS Information nor will
Customer use any of the AdvancePCS Information to
benefit itself or others except to the extent
expressly authorized hereunder.
6.1.2. Customer will treat all such AdvancePCS Information
as confidential, will disclose such AdvancePCS
Information only to those employees of Customer who
have a need to know in order to accomplish the
purposes
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permitted hereunder and who themselves agree not to
disclose it to anyone; will not (except to the extent
expressly authorized hereunder) disclose it to anyone
outside of Customer; and will not copy or reproduce
any written materials or tangible items provided by
AdvancePCS unless expressly authorized in writing to
do so by AdvancePCS. Customer will take reasonable
measures, including, without limitation, all measures
it employs with respect to information of its own
that it regards as confidential and proprietary, to
preserve and protect the confidentiality or
proprietary nature of said AdvancePCS Information and
to prevent it from falling into the public domain or
into the possession of persons not bound to maintain
its confidentiality.
6.1.3. All written materials, computer programs, manuals and
other tangible items disclosed or provided to
Customer in any medium are and will remain the
property of AdvancePCS. Customer will return all such
materials, and all copies thereof, to AdvancePCS when
AdvancePCS so requests.
6.1.4. Customer shall not be liable for any disclosure or
use of any AdvancePCS Information disclosed or
communicated by Customer if such AdvancePCS
Information is publicly available or later becomes
publicly available other than through a breach of
this Agreement, or if such AdvancePCS Information is
shown by written documentation to be known to
Customer on the date of execution of this Agreement.
Nothing contained in this Agreement shall prevent
Customer from disclosing AdvancePCS Information
pursuant to any bona fide subpoena provided that
Customer shall give AdvancePCS immediate written
notice of any such subpoena so that AdvancePCS may
make such objections or otherwise intervene in the
appropriate governmental proceedings as it deems
proper.
6.2. FORMULARY. Customer acknowledges that the Formulary contains
AdvancePCS proprietary information and agrees that AdvancePCS
owns all rights to the Formulary, including but not limited
to, rights associated with publication, trade secrets,
copyrights, trademarks and patents, and any rights that
Customer may have in the Formulary are hereby assigned to
AdvancePCS. Accordingly, distributed copies of the Formulary
remain the property of AdvancePCS and may be used only for the
purposes and transactions contemplated by this Agreement. No
copies shall be distributed or disclosed except as reasonably
necessary for performance of this Agreement and, in
particular, no copy shall be distributed or disclosed to any
competitor of AdvancePCS.
6.3. SECTION 6 REMEDIES. Customer acknowledges that any
unauthorized disclosure or use of AdvancePCS Information would
cause AdvancePCS immediate and irreparable injury or loss.
Accordingly, should Customer fail to comply with this Section
6, AdvancePCS shall be entitled to specific performance
including immediate issuance of a temporary restraining order
or preliminary injunction enforcing this Agreement, and to
judgment for damages (including attorneys' fees) caused by the
breach and to any other remedies provided by applicable law.
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7. WARRANTY, LIMITATION OF LIABILITY
7.1. WARRANTY. Customer acknowledges that this Agreement is not a
contract for the sale of goods. AdvancePCS shall perform the
services to be provided hereunder in a good and workmanlike
manner. AdvancePCS does not warrant that the services will be
uninterrupted or error-free. EXCEPT AS WARRANTED IN THIS
SECTION 7.1, ADVANCEPCS DISCLAIMS ALL EXPRESS AND ALL IMPLIED
WARRANTIES OF ANY KIND, INCLUDING THE SUITABILITY FOR ANY
PARTICULAR PURPOSE OF THE DATA GENERATED THROUGH ADVANCEPCS'S
CLAIMS PROCESSING AND ADJUDICATION SYSTEM.
7.2. FORCE MAJEURE. AdvancePCS shall be excused from performance
hereunder for any period and to the extent that AdvancePCS is
prevented from performing any services, in whole or in part,
as a result of causes beyond AdvancePCS' reasonable control,
including, acts of God, war, civil disturbance, court order,
governmental intervention, Change in Law, nonperformance by
Customer or any third party, failures or fluctuations in
electrical power, heat, light, air conditioning or
telecommunications equipment, and any such nonperformance by
AdvancePCS shall not be a default or a ground for termination
hereunder by Customer.
7.3. CHANGE IN LAW. If there occurs any Change in Law which
materially alters the rights or obligations of either party
under this Agreement, the parties shall equitably adjust the
terms of this Agreement to take into account such Change in
Law. If the parties are unable to agree upon an equitable
adjustment within sixty (60) days after either party notifies
the other of such a Change in Law, this Agreement shall
terminate.
7.4. LIMITATIONS. In no event shall AdvancePCS or any of its
affiliates, directors, employees, agents, successors or
assigns be liable to Customer under or in connection with this
Agreement (or any third party claiming rights under or in
connection with this Agreement) (i) for the acts or omissions
of any providers which, or any pharmacists or provider who,
performs any services in connection with this Agreement, or
(ii) for any indirect, special, incidental or consequential
damages, even if AdvancePCS is informed of their possibility.
Furthermore, AdvancePCS shall have no liability for any claim
which is asserted by Customer or any third party more than
ninety (90) days after Customer or such third party is or
reasonably should have been aware of such claim; provided,
however, that if Customer has chosen not to receive those
reports described in Section 4.2 and/or Exhibit A, AdvancePCS
shall have no liability whatsoever for any claim which
Customer would have been reasonably aware of if Customer were
receiving such reports.
7.5. FORMULARY SERVICES.
7.5.1. As used herein and in Exhibit A, (i) "MANUFACTURERS"
shall mean a pharmaceutical company which has entered
into an agreement with AdvancePCS or an affiliate or
agent of AdvancePCS to offer discounts for
pharmaceutical products in connection with
AdvancePCS' Formulary Services and (ii) "REBATES"
shall mean, for any period, all rebates,
reimbursements or other discounts received under a
Manufacturer's discount program with respect to
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pharmaceutical products dispensed to a Member under
the Plan during such period.
7.5.2. Neither party shall be responsible to the other
party, its affiliates, directors, employees, agents,
successors and permitted assigns for, and each hereby
waives, releases and forever discharges the other
party from, any and all claims, demands, losses,
attorneys' fees, costs, expenses and liabilities of
any nature whatsoever, whether or not now existing,
known or unknown, suspected or claimed, arising from
and Customer agrees that it will require all Members
to waive, release, and forever discharge AdvancePCS
from any and all claims, demands, losses, attorneys'
fees, costs, expenses and liabilities of any nature
whatsoever, whether or not now existing, known or
unknown, suspected or claimed, arising from:
7.5.2.1. any failure by any Manufacturer to pay any
Rebate;
7.5.2.2. any breach of an agreement related to the
transactions contemplated by or otherwise
relating to this Agreement by any
Manufacturer; or
7.5.2.3. any negligence or misconduct of any
Manufacturer.
7.5.3. Customer acknowledges that "Rebate" shall not include
any fees or other compensation paid by a Manufacturer
to AdvancePCS for its own account, including without
limitation administrative fees not exceeding three
percent (3%) of the cost of the pharmaceutical
products dispensed to Members, or fees for services
rendered or property provided to a Manufacturer (to
the extent permitted by this Agreement and applicable
Law), which fees shall be retained by AdvancePCS.
7.5.4. In addition to those rights to terminate this
Agreement specified in Section 8.2, either party
shall have the right to terminate Formulary Services
and those provisions of this Agreement relating
thereto upon written notice to the other party if,
after the date of this Agreement, there occurs (i)
any Change in Law which materially affects
AdvancePCS' ability to perform such Formulary
Services or (ii) a substantial change in drug
industry practice regarding Rebates which causes the
Rebates available under this Agreement for any year,
after AdvancePCS exercises diligent efforts to obtain
such Rebates, to be less than 80% of the actual
Rebates paid or payable for the initial year in which
this Agreement is in effect. Such termination shall
not operate to terminate this Agreement, and all
other provisions of this Agreement shall remain in
full force and effect.
7.5.5. To the extent that ERISA or any other Law requires
any disclosure to or consent from Members regarding
Rebates or other discounts on pharmaceutical
products, customer acknowledges that it has the sole
responsibility for such disclosures to its Members,
irrespective of whether it retains or allows
AdvancePCS or others to retain all or a portion of
such Rebates or discounts.
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8. TERMINATION OF AGREEMENT
8.1. TERM. This Agreement shall be in effect subject to the
remaining provisions of this Section 8.
8.2. TERMINATION. This Agreement may be terminated as follows:
8.2.1. By either party, with or without cause, on sixty (60)
days' prior written notice to the other, given at any
time;
8.2.2. By either party if the other party shall default in
its performance of this Agreement. The terminating
party shall provide the other party thirty (30) days'
prior written notice, specifying the nature of the
default. Such notice shall not be effective and this
Agreement shall not terminate if the other party
shall cure that default within the thirty (30) day
period;
8.2.3. Notwithstanding subsection 8.2.2, by AdvancePCS, on
two (2) days' prior written notice to Customer, if
Customer shall fail at any time (i) to make any
payment required pursuant to this Agreement by the
due date, unless Customer shall cure that default
within the two-day period, or (ii) to provide or
maintain security as required by Section 3.4;
8.2.4. By either party immediately on written notice to the
other, if the other party shall make an assignment
for the benefit of creditors, file a petition in
bankruptcy (whether voluntary or involuntary), is
adjudicated insolvent or bankrupt, a receiver or
trustee is appointed with respect to a substantial
part of its property or a proceeding is commenced
against it which will substantially impair its
ability to perform hereunder;
8.2.5. If any court, governmental or regulatory agency shall
issue to Customer an order or finding of impairment
or insolvency or an order to cease and desist from
writing business, written notice thereof shall be
given to AdvancePCS by Customer within two (2)
business days thereafter and upon receipt of such
notice AdvancePCS shall have the option to terminate
this Agreement immediately; or
8.2.6. By AdvancePCS, immediately on written notice to
Customer, if (i) Customer fails to comply with the
provisions of Section 4.5 of this Agreement, or (ii)
AdvancePCS determines, in its sole discretion, that
Customer's Program may not fully comply with all
applicable Laws.
8.2.7. By AdvancePCS, within sixty (60) day's prior written
notice to Customer if Customer fails to meet its
minimum number of Members, pursuant to Section 4.7 of
this Agreement
8.3. EFFECT OF TERMINATION. In the event of a termination
hereunder:
8.3.1. In addition to any and all rights and remedies
AdvancePCS may have at law, equity, or hereunder,
AdvancePCS shall have the right to notify its Network
Providers that the claims adjudication system is no
longer available in connection with the Plan; and
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8.3.2. Sections 5, 6 and 7 of this Agreement, and
obligations arising under this Agreement prior to the
effective date of termination, shall survive
termination.
9. NOTICES
All notices pertaining to this Agreement shall be in writing and shall
be delivered in person, sent by certified mail, delivered by air
courier, or transmitted by facsimile and confirmed in writing (sent by
air courier or certified mail) to a party at the address or facsimile
number shown in this Agreement, or such other address or facsimile
number as a party may notify the other party from time to time in
accordance with the provisions of this Section. Notices may also be
transmitted electronically between the parties, provided that proper
arrangements are made in advance to facilitate such communications and
provide for their security and verification. All notices shall be
effective upon receipt.
Notices to AdvancePCS shall be addressed as follows:
AdvancePCS
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ Valley, MD 21031
Attn: Executive Vice President, Client Management
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to the General Counsel at AdvancePCS, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ address and the following Fax No.:
(▇▇▇) ▇▇▇-▇▇▇▇.
Notices to Customer shall be addressed as follows:
International Health Partners, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Ph.D.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
10. MISCELLANEOUS
10.1. INTERPRETATION; AMENDMENT; COUNTERPARTS. This Agreement,
including the exhibits, schedules and attachments, together
with the Implementation Documents, constitutes the entire
understanding of the parties with respect to the Services and
supersedes any and all prior agreements, writings and
understandings. This Agreement is the result of negotiations
between the parties and, accordingly, shall not be construed
for or against either party regardless of which party drafted
this Agreement or any portion thereof. The Article and Section
headings contained in this Agreement are for convenience of
reference only, and shall not affect the meaning or
interpretation of any provision hereof. Except as otherwise
stated in this Agreement, this Agreement may only be amended
by a writing properly executed by duly authorized
representatives of both parties. This Agreement may be
executed in several counterparts, all of which taken together
shall constitute a single agreement between the parties.
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10.2. BINDING EFFECT; ASSIGNMENT. The Agreement shall be binding on
the parties and their respective successors and permitted
assigns. Neither party may assign this Agreement, in whole or
in part, without the prior written consent of the other (which
consent shall not be unreasonably withheld); provided,
however, AdvancePCS may assign this Agreement, in whole or in
part, to any entity that controls, is controlled by, or is
under common control with AdvancePCS.
10.3. INDEPENDENT CONTRACTOR; THIRD PARTIES. The parties to this
Agreement are to be considered independent contractors, and
they shall have no other legal relationship under or in
connection with this Agreement. No term or provision of this
Agreement is for the benefit of any person who is not a party
hereto (including, without limitation, any Member or broker),
and no such party shall have any right or cause of action
hereunder.
10.4. WAIVERS. Any failure by a party to comply with any covenant,
agreement or condition herein or in any other agreements or
instruments executed and delivered hereunder may be waived in
writing by the party in whose favor such obligation or
condition runs; provided, however, that failure to insist upon
strict compliance with any such covenant, agreement or
condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
10.5. SEVERABILITY. In the event any term or provision of this
Agreement is declared to be invalid or illegal for any reason,
this Agreement shall remain in full force and effect and the
same shall be interpreted as though such invalid and illegal
provision were not a part thereof. The remaining provisions
shall be construed to preserve the intent and purpose of this
Agreement and the parties shall negotiate in good faith to
modify the provisions held to be invalid or illegal to
preserve each party's anticipated benefits thereunder.
10.6. ENFORCEMENT COSTS. If either party institutes an action or
proceeding to enforce any rights arising under this Agreement,
the party prevailing in such action or proceeding shall be
paid all reasonable attorneys' fees and costs to enforce such
rights by the other party, such fees and costs to be set by
the court, not by a jury, and to be included in the judgment
entered in such proceeding.
10.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Arizona,
without regard to applicable conflict of law rules.
[This space intentionally left blank]
Page 11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized officers or agents as of the date first
above written.
INTERNATIONAL HEALTH ADVANCEPCS HEALTH, L.P.
PARTNERS, INC. By: AdvancePCS Health Systems, L.L.C.,
its General Partner
By: /s/ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------ ---------------------------
R. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Ph. D. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President & CEO Title: President
------------------------------ ---------------------------
Date: 8/22/01 Date: 9/12/01
------------------------------ ---------------------------
Page 12
EXHIBIT A
DESCRIPTION OF SERVICES
Below is a listing of services provided under the base administrative
fee or available for an additional fee. The services are subject to change from
time to time, at AdvancePCS' discretion, as provided in the Agreement.
Capitalized terms not defined herein shall have the meanings used in the
Agreement.
1. PHARMACY MANAGEMENT
A. NETWORK PROVIDERS. Members will have access to Network
Providers that (i) have executed Network Provider Agreements
required by AdvancePCS (as amended from time to time by
AdvancePCS), and (ii) have agreed to perform pharmacy services
for Members in accordance with the provider pricing schedule
and the Plan. Network Providers may choose not to perform
provider services for Members under this Agreement; however,
no Network Provider may serve only some Members or provide
only certain drugs (unless such Network Provider does not
provide such drugs to any persons). AdvancePCS may provide
Network Providers with Plan information in such format and
media as AdvancePCS deems appropriate for the purpose of
assisting such Network Providers in providing Benefits to
Members.
B. PHARMACY HELP DESK AND VOICE RESPONSE UNIT. AdvancePCS will
provide assistance to Network Providers through the pharmacy
help desk and AdvancePCS' voice response unit during those
hours of operation established by AdvancePCS from time to
time.
2. CUSTOMER SERVICE
AdvancePCS shall make available to Members a toll free customer service
number during those hours of operation established by AdvancePCS from
time to time. Staff will be available to answer Members' questions on
Plan eligibility, Plan guidelines, and status of an identification card
order.
3. ELIGIBILITY SERVICES
A. IDENTIFICATION CARDS. AdvancePCS will design one
identification card layout and provide Customer with a proof
of final design layout. Customer shall provide AdvancePCS with
camera-ready artwork for the logo or logos that Customer wants
to appear on the identification card. All identification cards
shall include the AdvancePCS name and logo. For each Member,
AdvancePCS will generate standard AdvancePCS cards in such
final design.
B. ELIGIBILITY FILE. Based upon the information provided by
Customer to AdvancePCS pursuant to Section 4.1, AdvancePCS
shall maintain an eligibility file identifying current Members
and certain other information regarding such Members.
4. CLAIMS PROCESSING
A. SUBMISSION OF CLAIMS. AdvancePCS will adjudicate Claims
submitted by Network Providers to AdvancePCS and process such
Claims in accordance with this Section 4A as follows:
Page 13
EXHIBIT A
DESCRIPTION OF SERVICES
- AdvancePCS shall enter into its prescription
processing system those portions of the Plan
information as are necessary for AdvancePCS to
perform automated Claims processing services in
accordance with this Agreement (collectively,
"PROCESSING PARAMETERS").
- AdvancePCS will instruct Network Providers to
transmit certain prescription, eligibility, and Plan
information to AdvancePCS when the Member presents a
Plan identification card, and if the system is
unavailable, as soon as possible after the system
becomes available.
- AdvancePCS will instruct the Network Provider to
collect one hundred percent (100%) of the applicable
network prescription price from the Member.
5. DRUG UTILIZATION REVIEW ("DUR")
A. DUR SERVICES. AdvancePCS will provide its prospective DUR
services, in which Network Providers are provided with
educational materials and programs regarding topics such as
appropriate drug therapy duration, appropriate "dispense as
written" frequencies, optimal generic prescribing, appropriate
prescribing of selected drug groups, Formulary compliance
issues, and such other topics as may be identified through
AdvancePCS' Retrospective DUR Program. AdvancePCS will provide
its automated concurrent DUR services for POS transactions.
These services include, but are not limited to edits relating
to drug-drug interactions; therapeutic duplications;
insufficient drug doses; excessive drug doses; drug-age
conflicts; drug-pregnancy advisories; drug-disease
contraindications; late refills; and controlled substance
issues.
Clinical and quality of care issues detected by the other DUR
edits do not result in Claim denial, but result in
transmission of a warning or alert message transmitted at the
time of dispensing to the pharmacist as part of the Claim
response from AdvancePCS. Network Providers are directed to
review the alert messages as they are received and to use
their professional judgment as to whether action is required.
B. LIMITATIONS. The information generated in connection with DUR
services is intended as an economical supplement to, and not a
substitute for, the knowledge, expertise, skill, and judgment
of physicians, pharmacists, or other health care providers in
patient care. Providers are individually responsible for
acting or not acting upon information generated and
transmitted through the DUR services, and for performing
services in each jurisdiction consistent with the scope of
their licenses. AdvancePCS shall not, and is not required by
this Agreement to deny Claims or require physician, pharmacist
or patient compliance with any norm or suggested drug regimen,
or in any way substitute AdvancePCS' judgment for the
professional judgment or responsibility of the physician or
pharmacist.
AdvancePCS' DUR services are highly automated, without any
individual review in most circumstances. Any focused
professional review would also be based upon automated
analysis of Members' profiles. Therefore, the DUR services are
necessarily limited by the amount of patient information
available to AdvancePCS. Meaningful patient information which
may not be available to AdvancePCS includes, but is not
Page 14
EXHIBIT A
DESCRIPTION OF SERVICES
limited to, patient diagnoses, utilization of drugs obtained
without utilizing the System or otherwise not included in the
patients' profile or Claim data. AdvancePCS shall have no
obligation to acquire information concerning any patient
beyond the information that is included in Customer's
eligibility records or the Claim data submitted by Network
Providers in connection with the Plan.
AdvancePCS shall update DUR databases on a reasonable basis to
reflect changes in available standards for pharmaceutical
prescribing; provided, however, no database will contain all
currently available information on accepted medical practice
or prescribing practices.
6. MAXIMUM ALLOWABLE COST ("MAC")
A. MAC LIST. AdvancePCS will use one or more of its proprietary
maximum allowable cost pricing schedules ("MAC Lists") to
establish an upper limit price for certain multiple-source
drugs dispensed under the Plan without regard to the specific
Manufacturer whose product is dispensed. The MAC List shall
include generic drugs based on their common substitution,
bioequivalency rating, and general availability. Customer
agrees to accept anyone of AdvancePCS' MAC lists, as amended
from time to time in AdvancePCS' discretion, for purposes of
pricing and classifying (e.g. brand vs. generic) drugs in
connection with this Agreement. Customer acknowledges that
certain of AdvancePCS' national provider networks may utilize
one or more of AdvancePCS' MAC Lists.
7. MANAGEMENT REPORTING
A. STANDARD MANAGEMENT REPORTS. AdvancePCS will provide Customer
with AdvancePCS' standard management reports in connection
with the Services provided hereunder, which reports may change
from time to time at AdvancePCS' discretion. Customer may
elect to receive some or all of the standard management
reports made available by AdvancePCS.
8. FORMULARY/REBATE SERVICE
A. ESTABLISHMENT OF FORMULARY. AdvancePCS shall work with
Customer to effect the adoption, distribution and
implementation of a drug formulary based on the AdvancePCS
formulary (the "Formulary"). AdvancePCS and Customer will use
diligent efforts to ensure the prompt adoption and
distribution of the Formulary. Charges for AdvancePCS'
production and distribution or shipping of Formulary are set
forth in Exhibit A.
- ADVANCEPCS' CLINICAL FORMULARY AND PRESCRIBING
GUIDELINES ("NATIONAL FORMULARY"). For customers
adopting AdvancePCS' National Formulary as the
Formulary, AdvancePCS shall distribute each edition
of the Formulary and updates to its providers.
- CUSTOM FORMULARY. For customers utilizing a custom
formulary, AdvancePCS will ship the custom
formularies to Customer. Customer will use diligent,
good faith efforts to ensure the prompt distribution
of the formulary and updates to its
Page 15
EXHIBIT A
DESCRIPTION OF SERVICES
chosen providers. The cost of postage and
distribution of the Formulary and any subsequent
updates thereto or reports hereunder, to Customer's
chosen providers, will be borne by Customer. If
Customer fails to distribute such formulary updates
in a timely manner, Customer shall be liable to
AdvancePCS for any loss of Rebates and shall hold
AdvancePCS harmless for, from and against the same.
B. UPDATING OF FORMULARY. AdvancePCS will work with Customer to
provide for the annual review, updating, and distribution of
the Formulary, to address changes to the Formulary made
desirable by changes in the pharmaceutical industry, new
legislation and regulations, the experience of Customer and
its providers with the Formulary, current medical literature
and new recommendations developed by AdvancePCS based on its
research and experience.
C. REBATE RELATED UTILIZATION REVIEW. To obtain Rebates from
Manufacturers, AdvancePCS will perform on behalf of Customer,
AdvancePCS' Quantum Plus Retrospective DUR program as
described in Section 5C.
In addition to the Quantum Plus Retrospective DUR Program,
AdvancePCS may propose other interventions from time to time
which are designed to increase Rebates and/or reduce the costs
of Benefits under this Agreement. Customer may decline to
allow such interventions, but in such event AdvancePCS shall
not be responsible for any loss of economic benefit which
results from the failure to implement the proposed
interventions.
D. REBATE CONTRACTS. AdvancePCS will attempt to contract with
certain Manufacturers for Rebate programs. Customer
acknowledges that whether and to what extent Manufacturers are
willing to provide Rebates to Customers will depend upon the
Plan design adopted by Customer, and other aspects of
Customer's Plan, as well as AdvancePCS receiving sufficient
information regarding each Claim submitted to Manufacturers
for Rebates.
E. OTHER REBATE ARRANGEMENTS. With respect to Members covered
under this Agreement, Customer will not participate in any
other formulary or similar discount during the term of the
Agreement and shall not itself create any formulary during the
term of the Agreement. Also, with respect to such Members,
Customer agrees not to enter into any direct or indirect
contracts with Manufacturers for discounts during the term of
the Agreement or any extension thereof. Nothing in this
section shall prohibit Customer from entering into
arrangements with other pharmaceutical management companies
offering formulary services after the term of the Agreement.
F. REBATES.
- [**]
** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Page 16
EXHIBIT A
DESCRIPTION OF SERVICES
9. OTHER SERVICES
Upon request from Customer, AdvancePCS shall perform the following
services for the fees set forth on Exhibit B attached hereto.
A. CARD REISSUANCE. AdvancePCS shall reissue cards for Members
upon request. If cards are reissued to an entire group within
a 24-month period, Customer shall pay the fee set forth in
Exhibit B.
B. CAT/BAT TAPES. AdvancePCS will provide Customer with detailed
Claim and/or administrative billing information through
AdvancePCS' standard claims activity tape ("CAT") and/or
billing activity tape ("BAT").
C. CUSTOMER-SPECIFIC PROGRAMMING. If Customer shall request
services or changes to services that require customized
programming or systems work, AdvancePCS shall attempt to
estimate to Customer the time and cost for completion of such
work. If Customer authorizes AdvancePCS to perform such work,
Customer shall pay AdvancePCS the cost of performing such work
at the programming rate set forth on Exhibit B.
Page 17
EXHIBIT B
ADMINISTRATIVE FEES
INTERNATIONAL HEALTH PARTNERS, INC.
EFFECTIVE JULY 1, 2001
As consideration for the services selected by Customer pursuant to the
Implementation Documents and described in Exhibit A, Customer shall pay to
AdvancePCS the fees set forth below:
Base Services - Per Processed POS Claim [**]
Services Fee
AdvancePCS' Rebate Percentage [**]
Card issuance (bulk shipped to Customer) [**]/Card
Carrier/Group Rebate Reports on Tape [**]/Each
Case-Set Up [**]/Group
Customer Specific Programming [**]/Hour
CAT/BAT Tapes [**]/Each
Retail Network Rates:
Brand: AWP-[**] + [**] dispensing fee
Generic: AWP-[**] + [**] dispensing fee, MAC + [**] dispensing fee or
Usual & Customary (U&C)
Tiered Transaction Fees reimbursed to Customer (when a dispensing fee is
applied):
1 - 50,000 annual Claims = [**]/Claim
50,001 - 500,000 annual Claims = [**]/Claim
500,001 - 1.0 million annual Claims = [**]/Claim
over 1.0 million annual Claims = [**]/Claim
Note: Charges not identified above will be quoted upon request.
Periodic Rate: Invoices are assessed finance charges at the rate of 1.5% per
month on the amounts not paid within terms of the Agreement.
All prices are contingent upon Customer's current Plan design, full adoption of
AdvancePCS' Performance Drug List, Member pricing, formulary management and
intervention programs, as well as representations made by Customer regarding
Member enrollment and utilization of pharmacy services.
Customer shall in all events be responsible for any postage costs or other
mailing and handling-related costs incurred by AdvancePCS in connection with the
provision of Services or Additional Services.
** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Page 18
ADDENDUM TO AGREEMENT
FOR ADDITION OF ON-LINE CONNECTION SERVICES
(INQUIRY AND UPDATE)
This Addendum dated as of this 16 day of August, 2001 (the "ADDENDUM") is
entered into by and between International Health Partners, Inc. ("CUSTOMER") and
AdvancePCS Health, L.P., a Delaware limited partnership, as an indirect wholly
owned subsidiary of AdvancePCS, a Delaware corporation, together with its
affiliates ("ADVANCEPCS").
RECITALS
WHEREAS, AdvancePCS and Customer have entered into that certain Agreement, as
amended from time to time, under which AdvancePCS is providing prescription
benefit management services to Customer (the "Benefit Agreement"); and
WHEREAS. AdvancePCS and Customer desire to amend the Benefit Agreement to allow
AdvancePCS to issue log-on identification numbers ("Log-On IDs") that will
permit Customer to make on-line inquiries, and to update portions of Customer's
group eligibility, benefit design, coverage, and related data information and,
if applicable, to directly input member claims information ("Direct Claims")
into AdvancePCS' information system directly from Customer's location on-line,
as outlined in Exhibit A, attached hereto.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, AdvancePCS and Customer agree as follows:
1. AdvancePCS shall make available to Customer the on-line services set
forth in Exhibit A (the "Services") only for those blocks of business
specifically requested by Customer. AdvancePCS will assign an initial
password for each Log-On ID. Within seven (7) calendar days after the
initial password has been set, Customer must change the password.
Thereafter, Customer is responsible for changing the password to a
unique alpha/numeric scheme every thirty (30) days. If the password is
not changed within the initial seven (7) day time period, on the eighth
(8th) calendar day, AdvancePCS will suspend the corresponding Log-On
ID.
2. Customer may change the Log-On ID list by making an appropriate written
or electronic mail request to AdvancePCS. AdvancePCS requires an
additional charge for the assignment of more than 25 Log-On IDs.
3. AdvancePCS may modify the Services from time to time at its discretion.
AdvancePCS may terminate this Addendum and discontinue Services:
a. Upon seven (7) calendar days' prior notice to Customer; or
b. Immediately in the event Customer's use of the Services is
consistently or materially inaccurate or otherwise adversely
affects the proper functioning or maintenance of AdvancePCS'
information database or if the Customer otherwise breaches the
terms of this Addendum or the Benefit Agreement. AdvancePCS
shall provide the Services in a good and workmanlike manner,
but does not warrant that the Services will be free of
interruption. ADVANCEPCS DOES NOT MAKE ANY OTHER WARRANTIES OR
2
REPRESENTATIONS WITH RESPECT TO THE SERVICES PROVIDED PURSUANT
TO THIS ADDENDUM, INCLUDING WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
4. The Services will be available to Customer during those hours of
operation as established by AdvancePCS from time to time.
5. AdvancePCS will notify Customer when a password expires. If a Log-On ID
is not used for sixty (60) consecutive days, AdvancePCS will suspend
the Log-On ID. AdvancePCS will delete from its system any Log-On ID not
used for one hundred eighty (180) consecutive days.
6. Customer will comply with all rules AdvancePCS may establish from time
to time in connection with the Services. Customer is responsible for
all telephone charges or other telecommunication charges incurred by
Customer with respect to its use of the Services.
7. Customer is responsible for the accuracy and completeness of any
information entered into AdvancePCS' information database by Customer
including, but not limited to, Direct Claims, plan design changes,
eligibility edits, claim edits, and benefit number or design changes.
AdvancePCS may rely on Customer's input information without further
corroboration or inquiry. Customer agrees to indemnify AdvancePCS for,
from, and against any and all claims, losses, or expenses that may be
charged against AdvancePCS that arise, or are alleged to arise, as the
result of: (i) AdvancePCS' reliance on Customer input information; (ii)
Customer's use of the Services; (iii) Customer's failure to perform or
properly perform a Direct Claim Processing Requirement (as defined in
Section 8); or (iv) a breach of the representations and warranties
contained in Section 11.
8. Customer may, upon the prior written consent of AdvancePCS, be
authorized to input Direct Claims into AdvancePCS' information
database. If authorized, Customer is responsible for each of the
following related tasks with respect to a Direct Claim: (i) receiving
the claim form reflecting the Direct Claim (the "Direct Claim Form")
from the member; (ii) returning to members any claim requests submitted
on ineligible forms; (iii) preparing Direct Claim Forms for
microfilming; (iv) microfilming Direct Claim Forms; (v) assigning
document numbers to Direct Claim Forms; (vi) batching the Direct Claim
Forms; (vii) keying the Direct Claim Forms into AdvancePCS' information
database; (viii) resolving Direct Claims; (ix) conducting research
necessary on any Direct Claim; (x) retaining any and all documents that
evidence the Direct Claims, including the Direct Claim Forms, for such
period of time as AdvancePCS is required under the Agreement to retain
such or similar documents; and (xi) such other matters as AdvancePCS
and Customer may mutually agree upon from time to time (the foregoing
clauses (i) through (xi) are collectively called the "Direct Claim
Processing Requirements"). AdvancePCS will be responsible for mailing
checks, explanation of benefits, and denials to plan members related to
Direct Claims after such time as Customer has completed the appropriate
Direct Claim Processing Requirements. AdvancePCS shall charge an
Administrative Fee (as defined in the Benefit Agreement) for each
Direct Claim that Customer processes. If Customer fails to perform or
incorrectly or inadequately performs a Direct Claim Processing
Requirement, AdvancePCS may, in its sole discretion but without any
obligation, perform the Direct Claim Processing Requirement. AdvancePCS
will charge Customer a fee for each Direct Claim Processing Requirement
that AdvancePCS performs.
3
9. AdvancePCS has the right to use, reproduce, and adapt all information
obtained pursuant to this Addendum, subject to any restrictions imposed
by applicable law.
10. In connection with the Services, Customer may have access to
information regarding AdvancePCS' business or its customers and to
other proprietary or confidential technical and business information,
databases, trade secrets, and innovations (collectively, the
"AdvancePCS Information"), the value of which might be lost if the
proprietary nature or confidentiality of the AdvancePCS Information is
not maintained. AdvancePCS reserves all rights to the AdvancePCS
Information, including the proprietary and novel features contained
therein. Customer agrees: (i) to treat al1 AdvancePCS Information with
confidentiality and to not disclose any AdvancePCS Information to any
third party or to any of its employees without a job-related need; and
(ii) to refrain from using any AdvancePCS Information for any purpose
other than the purpose described in Section 1 of this document.
Customer will take reasonable measures, inc1uding, but not limited to,
all measures it employs with respect to information of its own that it
regards as confidential and proprietary, to preserve and protect the
confidentiality or proprietary nature of the AdvancePCS Information and
to prevent it from falling into the public domain or into the
possession of persons not bound to maintain its confidentiality. In
addition to the foregoing, Customer further agrees that the
compilations of information contained in the systems to which the
Log-On ID will provide access, including the AdvancePCS Claims
adjudication system, all print-outs and copies therefrom, and any prior
and future versions thereof by any name, and in all other databases
developed by AdvancePCS or its designees in connection with performing
drug benefit and utilization review services are the property of
AdvancePCS and may be protected by copyright owned by AdvancePCS. The
databases may not be used, reproduced, or disclosed to any third party,
in whole or in part, without prior written permission from AdvancePCS.
Customer acknowledges that any unauthorized disclosure or use of
AdvancePCS Information would cause AdvancePCS immediate and irreparable
injury or loss. Accordingly, should Customer fai1 to comply with this
Section 10, AdvancePCS will be entitled to specific performance,
including immediate issuance of a temporary restraining order or
preliminary injunction enforcing this Addendum, and to a judgment for
damages (including attorneys' fees) caused by the breach, together with
any other remedies provided under applicable law.
11. Customer represents and warrants to AdvancePCS that: (i) it has
lawfully obtained any and all information that it inputs into
AdvancePCS' information database; and (ii) prior to receiving,
reviewing, or using any information provided through AdvancePCS'
information database pursuant to the Services, Customer shall have
received appropriate authorizations from the members if required by
applicable law.
12. Except as specifically amended hereby, all provisions of the Benefit
Agreement shall remain in full force and effect. Except as expressly
provided herein, all capitalized terms used in this Addendum shall have
the meaning set forth in the Benefit Agreement.
4
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly
executed as of the date first set forth above.
ADVANCEPCS HEALTH, L.P.
By: AdvancePCS Health Systems, L.L.C.,
its General Partner
/s/ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------ -------------------------------
R. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Ph.D. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President & CEO President
------------------------------ -------------------------------
Title Title
8/22/01 9-12-01
------------------------------ -------------------------------
Date Date
5