MARKETING
AGREEMENT (hereinafter, the “ Agreement ”) made
and entered into as of August 1, 2005, by and
between
HEALTH
ALLIANCE NETWORK, INC. ,
a New York corporation, with principal offices located at 1305
Mamaroneck Avenue, White Plains, NY 10605 ( HAN) ,
and
COMPREHENSIVE BEHAVIORAL CARE, INC.
, a Nevada corporation, with
principal offices located at 204 S. Hoover Boulevard,
Suite 200, Tampa, Florida 33609 (collectively referred to,
with its Affiliates, as ( CompCare );
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A.
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CompCare has established a network
of contracted physicians and other providers of case management,
pharmacy management services, disease management and integrated
behavioral healthcare services and products;
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B.
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CompCare’s Participating
Providers have agreed to provide behavioral healthcare services and
products in exchange for discounted fees to the beneficiaries of
healthcare plans sponsored by payors who contract with CompCare for
access to such provider networks and other services provided by
CompCare;
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C.
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HAN
has contacts with insurance companies, unions, third party
administrators and other payors for healthcare services and
products who desire to obtain access to such behavioral healthcare
services and products for their respective plan beneficiaries on a
discounted fee basis;
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D.
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CompCare has agreed to appoint HAN
as its primary representative and marketing agent for commercial
(i.e., non-Medicaid and non-Medicare) business;
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E.
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HAN
desires to market CompCare’s services and the CompCare
Networks in the commercial marketplace to Payors with which HAN has
or may develop relationships; and
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F.
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HAN
and CompCare desire to set forth the terms and conditions on which
CompCare has agreed to provide its services and to allow commercial
market payors introduced to it by HAN to contract for access to the
CompCare Networks;
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NOW, THEREFORE, in
consideration of the promises and the mutual covenants and
agreements herein set forth, and in reliance on the representations
and warranties contained herein and subject to the terms and
conditions hereof, the parties hereto agree as follows:
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For purposes of
this Agreement, in addition to the terms elsewhere defined herein,
the following terms shall have the meaning indicated:
1.1 “
Affiliate ” an Affiliate of a Person shall refer to
(1) each officer and employee of such Person, (2) any
Person which is controlled by, controls, or is under common control
with, such Person, and (3) any Affiliate of any of the
foregoing.
1.2 “
CompCare Network ” shall mean (a) the network of
Participating Providers who have executed Provider Agreements with
CompCare, and (b) any network of behavioral healthcare
providers that CompCare is leasing from any third party pursuant to
a written agreement.
1.3 “
Covered Individual ” shall mean all members,
employees, covered dependents and other Persons eligible to receive
medical services under a Plan.
1.4 “
Most Favored National Pricing ” shall mean the lowest
price CompCare would offer to any client when such client is not a
Source introduced to CompCare by HAN. CompCare has sole discretion
in determining Most Favored Nation Pricing specific to any Service
Agreement as such pricing is contingent upon, among other things,
CompCare’s understanding of the benefits to be offered to the
Source’s members and any available actuarial and/or
utilization data.
1.5 “
Participating Providers ” shall mean the physicians,
hospitals and healthcare facilities and other providers of
behavioral healthcare services and/or products who have entered
into Provider Agreements with CompCare.
1.6 “
Person ” shall mean an individual, corporation,
limited liability company, limited liability partnership,
partnership, joint venture and other business entity of any
kind.
1.7 “
Plan ” shall mean a health insurance, managed care,
self insured plan, or other similar health benefit plan sponsored
or issued by a Source and which may include workers compensation,
first party automobile medical liability, long-term or short-term
disability and health coverage.
1.8 “
Provider Agreements ” shall mean the agreement between
CompCare and providers of behavioral healthcare services and/or
products pursuant to which the Participating Provider agrees to
provide behavioral healthcare services and/or products to Covered
Individuals in exchange for discounted fees.
1.9 “
Source ” shall mean the health insurance companies,
employers, third party administrators, labor unions and other
Persons who pay for healthcare services and products, each
Affiliate of such Person, and any other Person, that has been
introduced directly by HAN or any Affiliate of HAN to CompCare.
Each Source must be pre-registered in writing by HAN or an
Affiliate of HAN with CompCare and approved in advance and in
writing by CompCare.
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1.10 “
Services Agreement ” shall refer to an agreement
entered into by a Source with HAN and/or CompCare, which has been
pre-approved by HAN and CompCare, to provide access to the CompCare
Network and/or other services provided by CompCare.
2. PROVISION OF
SERVICES:
2.1 CompCare
hereby appoints HAN as its primary marketing and sales
representative with respect to all commercial (i.e., non-Medicaid
and non-Medicare) business conducted by CompCare during the Term of
this Agreement. This does not preclude HAN from selling Medicare
and Medicaid business provided such business is pre-registered by
HAN in the same manner required for commercial business sales by
HAN.
2.2 For
each Source that executes a Services Agreement with CompCare during
the Term hereof, CompCare shall provide the Covered Individuals
under Plans sponsored by such Source with access to Participating
Providers in the CompCare Network and with access to
CompCare’s other services on the terms and subject to the
conditions set forth in such Services Agreement.
2.3 CompCare
will agree to accept Most Favored Nation Pricing for all of the
services provided by CompCare to Sources introduced to CompCare by
HAN. HAN will have the right to negotiate higher than Most Favored
Nation Pricing for specific Service Agreements with its
Sources.
2.4 CompCare
shall perform all CompCare services in a timely fashion and in
accordance with the terms of the specific Service Agreement and
standard operating practice of CompCare and will provide monthly
reports to the Source, with a copy to HAN, in the form defined by
CompCare’s Service Agreement with each Source. CompCare and
HAN shall commit and utilize their available resources for, and
cooperate with each other in connection with, presentations and
meetings with potential Sources introduced to CompCare by HAN or
its Affiliates. CompCare and HAN will mutually agree to final
Service Agreement pricing. All Service Agreements must be signed by
CompCare and the Source.
2.5 CompCare’s
Service Agreement with each Source shall govern the terms for
billings to and collection of monthly revenues from each
Source.
2.6 If
a Source introduced to CompCare by HAN or a HAN Affiliate would
like to contract with CompCare or any of its Affiliates for network
access or other services, then CompCare may enter into a Services
Agreement directly with such Source at the pricing (not less than
Most Favored Nation Pricing determined by CompCare) negotiated by
HAN with such Source; provided that any such direct Source Access
agreement will be subject to all of the provisions of this
Agreement; and CompCare will give HAN a copy of the executed
agreement within five days after it is executed by the
Source.
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3. RESPONSIBILITIES OF
COMPCARE
3.1 CompCare
has entered into Provider Agreements with Participating Providers
for the provision of covered services to Covered Individuals.
Although the Provider Agreement is not a part of this Agreement,
the applicable Provider Agreement executed by each Participating
Provider shall govern the relationship between CompCare and any
Participating Provider.
3.2 CompCare
is responsible for recruiting and contracting with Participating
Providers and other providers of services offered by CompCare. All
communications with Participating Providers concerning the
negotiation, execution or ongoing management and maintenance of
Provider Agreements will be conducted by or through
CompCare.
3.3 CompCare
will develop appropriate policies, procedures, protocols and
criteria (collectively, the “ Criteria ”) for
the CompCare Network in order to maintain the integrity of the
CompCare Network. CompCare will provide Participating Providers
with such policies, procedures, information and materials as needed
to facilitate Participating Provider’s participation in the
CompCare Network and compliance with established policies and
procedures; provided that any Criteria shall be no more burdensome
on HAN or its Sources than CompCare imposes on other of its clients
that do not originate with HAN.
3.4 CompCare
and HAN agree to the use of each other’s name in any
marketing, advertising, solicitation or educational material
necessary to further the purposes of this Agreement. Each party
using the other’s name in such materials shall share said
materials prior to distribution and obtain the written consent of
the other party whose name is used, which consent shall not be
withheld unreasonably. In all other respects, each party reserves
the rights to, and the control of, the use of their name and all
symbols, trademarks, or service marks.
3.5 CompCare
shall provide such educational services to HAN as is reasonably
appropriate in connection with the implementation and operation of
this Agreement. Additionally, CompCare shall provide HAN with such
reporting as is reasonably necessary to enable HAN to fulfill its
obligations under the Services Agreements. Such services shall be
designed to assist each Source’s Covered Individuals in their
utilization of CompCare’s Participating Providers.
3.6 If
CompCare is required to make any filings by a State Department of
Health or State Department of Insurance, such filings shall be made
by CompCare, unless otherwise directed by one of the respective
State Departments.
3.7 CompCare
is not an insurer, guarantor or underwriter of the liability of HAN
and/or its Sources and does not pay claims for covered services
under any Plan (except that CompCare does pay claims on behalf of
Plan sponsors when CompCare is providing third party administrator
services). HAN acknowledges and agrees that CompCare is not an
insurer, indemnifier or guarantor of payments owed to Participating
Providers in connection with this Agreement or the provision of
healthcare, behavioral healthcare, or other services or supplies
under any Plan. Except as expressly set forth in this Agreement or
in any agreement entered into pursuant to this Agreement, CompCare
shall have no responsibility for any healthcare services or
supplies or other services provided by Participating Providers to
any Covered Individual or to any other Person.
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3.8 CompCare
shall hold HAN harmless against liability or any additional
expenses incurred by HAN if CompCare is determined by any federal,
state, or local governmental authority to be engaged in activities
for which it has failed to obtain a necessary license or
permit.
3.9 During
the term of this Agreement (as the same may be extended from time
to time) and for a one (1) year period thereafter, CompCare
shall not, either directly or indirectly, for itself or any third
party, hire or solicit, induce, recruit, or cause a person in the
employ of HAN or its subsidiaries to terminate his/her employment
by HAN or such subsidiary, for the purpose of joining, associating
or becoming employed by CompCare or any of CompCare’s
Affiliates, or any other company or person which is in competition
with any product sold, or any business or activity engaged in, by
HAN at any time during the term of this Agreement without advanced
written approval of both parties.
4. RESPONSIBILITIES OF
HAN
4.1 HAN
shall use its good faith efforts to market and locate Sources who
are interested in contracting with CompCare for services provided
by CompCare and its Participating Providers, and will promptly
pre-register such Sources in writing to CompCare for pre-approval
by CompCare.
4.2 HAN
will employ a minimum of 1.5 FTEs who are experienced Sales
Executives who will be dedicated to the sale of CompCare’s
behavioral health products. These Sales Executives will be guided
by HAN’s Owner and Chief Executive Officer and will be
responsive to the direction and inquiries of CompCare’s Chief
Executive Officer or designee.
4.3 HAN
is not an insurer, guarantor, or underwriter of the liability of
CompCare or its Participating Providers and does not provide
benefits to Covered Individuals or pay claims for covered services
under any Plan. CompCare acknowledges and agrees that HAN’s
responsibilities pursuant to this Agreement are administrative in
nature and that HAN is not an insurer, indemnifier or guarantor of
payments owed to Participating Providers in connection with this
Agreement or the provision of behavioral healthcare services or
supplies. Except as expressly set forth in this Agreement or in any
agreement entered into pursuant to this Agreement, HAN shall have
no responsibility for any behavioral healthcare services or
supplies or other services provided by CompCare or Participating
Providers to any Covered Individual or to any other
Person.
4.4 HAN
shall hold CompCare harmless against liability or any additional
expenses incurred by CompCare if HAN is determined by any federal,
state, or local governmental authority to be engaged in activities
for which it has failed to obtain a necessary license or
permit.
4.5 During
the term of this Agreement (as the same may be extended from time
to time) and for a one (1) year period thereafter, HAN shall
not, either directly or indirectly, for itself or any third party,
hire or solicit, induce, recruit, or cause a person in the employ
of CompCare or its subsidiaries to terminate his/her employment by
CompCare or such subsidiary, for the purpose of joining,
associating or becoming employed by HAN or any of HAN’s
Affiliates, or any other company or person which is in competition
with any product sold, or any business or activity engaged in, by
CompCare at any time during the term of this Agreement without
advanced written approval of both parties.
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5. BILLING AND
CONSIDERATION:
5.1 CompCare
shall pay to HAN
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(a)
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a
fee (the “ Cash Fee ”) (computed as provided in
SCHEDULE “A”, Item A) with respect to all
Service Agreements entered into during the Term of this Agreement
(as such Term may be extended from time to time), and
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(b)
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a
Marketing Fee (computed as provided in SCHEDULE “A”,
Item B) during the initial 24 month Term.
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5.2 CompCare
shall pay the Cash Fee to HAN from the payments received by
CompCare from each Source during each calendar month.
5.3 CompCare
shall pay to HAN all Cash Fee payments due HAN under this Agreement
within twenty (20) days after the date on which CompCare
receives each payment from the Source. CompCare shall not be
obligated to pay Cash Fees to HAN unless and until it has received
cleared or “good” funds from the Source pursuant to the
Services Agreement with such Source. If CompCare fails to pay Cash
Fees, when Cash Fees are due to HAN, within the period provided in
this Section 5.3, then such past due payments will bear
interest at the annual interest rate announced by Citibank, NA from
time to time as its prime lending rate.
6.1 This
Agreement shall continue in effect for a twenty four
(24) month period (the" Term ”) commencing on the
date of this Agreement. At the end of the Term (as the same may
have been extended), this Agreement shall automatically renew on
the same terms and conditions for subsequent periods of twelve
(12) months each unless (i) terminated in accordance with
the terms of this Agreement, or (ii) either party elects not
to renew this Agreement at the end of its then current Term by
written notice given to the other at least sixty (60) days
prior to the end of the then current Term. As used in this
Agreement, the “Term” of this Agreement shall include
the initial twenty four (24) month term and any subsequent
extensions of the Term of this Agreement.
6.2
Termination for Default. Either party may terminate this
Agreement upon the occurrence of an Event of Default as defined
under Section 7.1 which remains uncured at the end of any
applicable grace period.
6.3
Immediate Termination. Either party may terminate this
Agreement immediately upon notice to the other if the continuation
of this Agreement by such party is found to be in violation of any
law or regulation applicable to such party which would subject such
party to regulatory action, criminal liability or material fines.
The party electing to terminate this Agreement pursuant to this
Section 6.3 shall give the other party such advanced notice of
the possibility of termination as is reasonably possible under the
circumstances.
6.4 Notwithstanding
any provision contained in any agreem
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