EXHIBIT 10.1
BUSINESS AFFILIATE AGREEMENT
This Business Affiliate Agreement ("Agreement") dated January 28, 2005,
effective as of October 15, 2004, ("Effective Date") is entered into by and
between Xx. Xxxxxx X. Xxxxx (the "Business Affiliate") and UNION DENTAL CORP., a
Florida corporation ("UDC") (collectively, Business Affiliate and UDC may be
referred to collectively as the "Parties" and singularly as a ("Party").
RECITALS
WHEREAS, the Business Affiliate wishes to help further UDC's mission of
Managing dental offices, whereby Business Affiliate and UDC will exchange
confidential information (as defined below):
NOW THEREFORE, in consideration of the premises, covenants and agreements
and the mutual promises herein made, and in consideration of the
representations, warranties, and covenants herein contained, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto agree as follows:
AGREEMENT
1. Definitions. A Confidential Information@ shall mean any and all
information that a Party may reasonably expect to remain confidential and not
shared with the general public at any time or that information that is protected
by law.
2. Services. It is anticipated that the Business Affiliate will provide
services both for clients of the Business Affiliate and UDC that involve the use
and disclosure of Confidential Information (the "Services"). Except as otherwise
specified herein, the Parties may make any and all uses of Confidential
Information necessary to perform the Services. Additionally, the Parties may
disclose Confidential Information for the purposes authorized by this Agreement
only (a) to its employees, subcontractors and agents, in accordance with this
Agreement, or (b) as directed by the other Party. The Parties expressly agree
that any and all uses or disclosures of the Confidential Information by a Party
will be done in accordance with the terms of this Agreement and the provisions
of all applicable federal and state laws and regulations.
3. Responsibilities of the Parties. With regard to its use and/or
disclosure of Confidential Information, each Party hereby agrees to do the
following:
a. Use and/or disclose the Confidential Information only as permitted
or required by this Agreement or as otherwise required by law;
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b. Report to the other Party, in writing, any use and/or disclosure of
the Confidential Information that is not permitted or required by this
Agreement of which a Party becomes aware within five (5) days of a Party=s
discovery of such unauthorized use and/or disclosure;
c. Use appropriate safeguards to maintain the security of the
Confidential Information and to prevent unauthorized use and/or disclosure
of such Confidential Information;
d. Require all of its employees, representatives, subcontractors or
agents that receive or use or have access to Confidential Information under
this Agreement to agree in writing to adhere to the same restrictions and
conditions on the use and/or disclosure of Confidential Information that
apply herein, including the obligation to return or destroy the
Confidential Information as provided under paragraph g of this Section 3.
e. Make available, during normal business hours, at a Party=s offices
all records, books, agreements, policies and procedures relating to the use
and/or disclosure of Confidential Information that is subject to this
Agreement, to the other Party within ten (10) days of a Party's written
request, for the purpose of enabling a Party to verify the other Party=s
compliance with the terms of this Agreement;
f. Within fifteen (15) days of receiving a written request from a
Party, provide to the other Party such information as is requested by a
Party to permit the other Party to respond to a request by the subject
individual for amendment and accounting purposes of the disclosures of the
individual=s Confidential Information;
g. Return to a Party or destroy, as requested by a Party, within
fifteen (15) days of the termination of this Agreement, any Confidential
Information provided to such Party and in its possession and retain no
copies or back-up tapes;
h. Parties agrees to mitigate, to the extent practicable, any harmful
effect that is known to a Party of a use or disclosure of Confidential
Information by a Party in violation of the requirements of this Agreement;
i. To inform a Party of any changes in the form of notice of privacy
practices that the other Party provides to individuals and provide the
Party a copy of the notice currently in use; and
j. To inform the Party of any changes in, or withdrawal of, the
consent or authorization provided to a Party by individuals whose
Confidential Information may be used and/or disclosed by a Party under this
Agreement.
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4. Mutual Representation and Warranty. Each Party represents and warrants
to the other Party that all of its employees, agents, representatives and
members of its work force, whose services may be used to fulfill obligations
under this Agreement, are or shall be appropriately informed of the terms of
this Agreement and are under legal obligation to comply fully with all
provisions of this Agreement.
5. Term and Termination.
a. Term. This Agreement shall become effective on the Effective Date
and shall continue in effect until either Party informs the other Party
with thirty (30) day prior written notice of termination of this Agreement.
b. Termination. UDC may immediately terminate this Agreement without
notice and any related agreement if it determines that the Business
Affiliate has breached a material provision of this Agreement or if the
activities contemplated under this Agreement will result in a violation of
any federal or state law or if such Services would, in the opinion of UDC
and its counsel. Alternatively, UDC may choose to: (i) provide the Business
Affiliate with ten (10) days written notice of the existence of an alleged
material breach; and (ii) afford the Business Affiliate an opportunity to
cure said alleged material breach upon mutually agreeable terms. Failure to
cure in the manner set forth in this paragraph is grounds for the immediate
termination of the Agreement.
c. Effect of Termination. Upon termination of this Agreement, for any
reason, each Party hereto shall return to the other Party, or destroy, all
of such Party's Confidential Information in the possession of the other
Party. This provision shall apply to Confidential Information that is in
the possession of subcontractors or agents of each Party. Each Party shall
retain no copies of the Confidential Information of the other Party except
as may be required by law.
6. Indemnification. The Parties hereby covenant and agree to indemnify and
hold harmless each other, it's agents and representatives from and against any
and all losses, costs, expenses, liabilities, claims, demands, judgments and its
settlements of every nature that are actually incurred by a Party, including
without limitation reasonable attorney's fees for pre-trial, trial, appellate,
judgment, post-judgment, execution, and alternative dispute resolution, which
arise out of any use or disclosure of Confidential Information not specifically
permitted by this Agreement or arise out of the services rendered by Business
Affiliate. The provisions of this Paragraph 6 shall survive the termination of
this Agreement for whatever reasons whatsoever.
7. Miscellaneous.
a. Survival. The respective rights and obligations of Business
Affiliate and UDC under the provisions of Sections 3(g) and 3(h) and 6
shall survive the termination of this Agreement indefinitely.
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b. Amendment. This Agreement may not be modified or amended, except in
writing as agreed to by each Party.
c. No Third Party Beneficiaries. Nothing express or implied in this
Agreement is intended to confer, nor anything herein shall confer, upon any
person other than the Parties hereto any rights, remedies, obligations, or
liabilities whatsoever.
d. Notices. All notices or communications required or permitted
pursuant to the terms of this Agreement will be in writing and will be
delivered in person or by means of certified or registered mail, postage
prepaid, return receipt requested, to such Party at its last known address,
or such other person or address as such Party may specify by similar notice
to the other Party hereto or by telephone facsimile with a hard copy sent
by mail on the next business day. All such notices will be deemed given
upon delivery if delivered by hand, on the third business day after deposit
with the U.S. Postal Service, and on the first business day after sending
it by facsimile.
e. Relationship of the Parties. It is expressly understood and agreed
that (i) in the performance of Services under this Agreement, the Business
Affiliate shall at all times act as an independent contractor with respect
to UDC and not as an employee or agent of UDC and (ii) nothing contained in
this Agreement shall be construed to create a joint venture, partnership,
association or other affiliation, or like relationship, between the
Parties, it being specifically agreed that the relationship is and shall
remain that of independent Parties to a contractual relationship.
Accordingly, UDC shall neither have nor exercise any specific control or
direction over the particular methods by which Business Affiliate performs
services required by this Agreement. In no event shall either Party be
liable for the debts or obligations of the other, except as otherwise
specifically provided in this Agreement. Neither Party shall have any claim
under this Agreement or otherwise against the other Party for vacation pay,
paid sick leave, retirement benefits, social security, worker=s
compensation, health, disability, professional malpractice or unemployment
insurance benefits, or other employee benefits of any kind. Based on the
foregoing, (i) Business Affiliate will not be treated as an employee of UDC
for Federal tax purposes; (ii) UNION DENTAL CORP., will not withhold on
behalf of Business Affiliate any sums for income tax, unemployment
insurance, social security or any other withholding pursuant to any law or
requirement of any government body, or make available any of the benefits
afforded to employees of UDC (iii) all of such payments, withholdings or
benefits due any governmental agency, if any, are Business Affiliate=s sole
responsibility; and (iv) Business Affiliate will indemnify and hold
harmless UDC from any and all loss or liability arising from his failure to
make such payments, withholds and benefits, if any. In the event the
Internal Revenue Service or any other governmental agency should question
or challenge the Business Affiliate=s independent contractor status, the
Parties hereby agree that both Business Affiliate and UDC shall have the
right to participate in any discussions or negotiations
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occurring with such agency or agencies, regardless of with whom or by whom
such discussions or negotiations are initiated.
f. Business Affiliate acknowledges that the Business Affiliate has
read, understood and accepted the terms and conditions in UDC's Business
Affiliate manual, the terms and conditions of which are hereby incorporated
into this agreement by reference.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
signed as of the date and year first above written.
Business Affiliate
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By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title:
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UNION DENTAL CORP.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title:CEO and President
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udc-8ka_ex10baa1.doc
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