EXHIBIT 10.7
YEAR 2000
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (the "Agreement") is made and entered into
as of the 11th day of May, 1999 (the "Effective Date"), by and between CHCA
Management Services, L.P. a Delaware corporation with its principal place of
business located at Xxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx, 00000 ("Provider"),
and Lifepoint Hospitals Holdings Inc., a Delaware corporation having its
principal place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000
("Customer").
WHEREAS, Customer, prior to the date of this Agreement was owned by an affiliate
of Columbia/HCA Healthcare Corporation ("C/HCA"), parent corporation of
Provider;
WHEREAS, on May 11, 1999 Customer was spun-off from C/HCA as a separate legal
entity not owned or controlled by C/HCA;
WHEREAS, prior to the date hereof, Provider furnished certain year 2000
professional services related to "non-information technology" and "non-
information infrastructure technology subject matter" areas for C/HCA affiliated
healthcare provider entities, including those that are now owned by Customer;
WHEREAS, to assist it in the development and implementation of its own Y2K
Program, Customer desires to have Provider to continue to perform such year 2000
services on its behalf on the terms more fully set forth below, with Customer
obtaining year 2000 services for information technology and information
technology infrastructure subject matters pursuant to its Computer and Data
Processing Services Agreement with Columbia Information Systems, Inc., an
affiliate of Provider, dated May 11, 1999.
NOW, THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Definitions
-----------
1.1. "Y2K Services" shall be defined to mean the same services as those
year 2000 professional services that Provider provides to healthcare
provider entities owned or controlled by C/HCA or its affiliates,
including, but not limited to, the providing of year 2000 compliance
information, advice, guidance and recommendations (including the Y2K
Hotlines) concerning medical equipment, facility and physical plant
equipment year 2000, suppliers and service providers, A/R vendors and
payors and, related subjects. Y2K services shall also include payors,
organizational and training information on implementing a year 2000 program
at a facility level, contingency planning relating to potential failures
due
-1-
to year 2000 compliance inadequacies, and other year 2000 related
information and instructions provided by Provider. Y2K Services shall not
include travel to any office or facility of Customer.
1.2. "Y2K Information" shall be defined to mean any data, specifications,
recommendations, communications instructions, and other information
provided by Provider to Customer as a result of performing Y2K Services or
Supplemental Y2K Services.
1.3. "Supplemental Y2K Services" shall be defined to mean those specific
year 2000 services Provider agrees to perform for Customer in a separate
work order which are over and above Y2K Services.
1.4. "Services" shall mean Y2K Services and/or Supplemental Y2K Services,
as the context requires.
1.5. "Year 2000" or "Y2K" as used herein refers to the proper processing of
date sensitive data and information containing prior to, at and for a
reasonable period of time after January 1, 2000.
1.6. "Y2K Program" shall be defined as Customer's internal program for
addressing Year 2000 issues with respect to its equipment and systems.
1.7. "Y2K A/R Vendor and Payor Track" shall be defined as the Y2K program
related to Accounts Receivable Vendors and Payors.
2. Professional Services.
----------------------
2.1 Provider agrees to provide Y2K Services to Customer during the term of
this Agreement for the fees listed in Section 5, for Customer and the
facilities owned or controlled by Customer as of the date of this
Agreement. Any additional facilities acquired by Customer shall be eligible
to receive Y2K Services hereunder upon written approval of Provider and
subject to the additional fees of paragraph 5.1.
2.2 Upon request from Customer from time to time, Provider may provide to
Customer Supplemental Y2K Services if specifically agreed to by the
parties. Supplemental Y2K Services may include (if agreed to by
Provider),project planning, data processing, software evaluation, software
installation, computer programming, training and/or similar professional
services relating to Year 2000 issues. Supplemental Y2K Services shall be
provided at the discretion of Provider under the terms, conditions and fees
set forth in this Agreement, and any schedule or exhibit hereto, and
pursuant to any work order executed hereunder which has been signed by Xxx
Xxxxxxx or his successor or superior, with respect to any Y2K Services
other than those related to A/R Vendors and Payor Track services; with
respect to A/R Vendor and Payor Track related Y2K Services Work Orders,
such shall be required to be signed by Xxxx Xxxx or her successor or
superior.
2.3 Staffing for Provider's furnishing of Services shall be determined in
Provider's sole discretion. Provider may engage other subcontractors, or
discontinue the use of any subcontractor, in its reasonable discretion, for
the performance of Services.
-2-
2.4 Customer shall reimburse Provider for its direct out-of-pocket
expenses specifically incurred in connection with Provider's performance of
Y2K Services and Supplement Y2K Services to Customer hereunder, including
without limitation consultant fees, long-distance toll charges, overnight
courier charges, fax charges, legal expenses and postage. If Provider (or
its agents, consultants or subcontractors) travels to Customer's site to
perform Services, then Customer shall reimburse Provider for Provider's
reasonable and necessary travel expenses (including air, travel, rental car
reimbursement, mileage, meals, and hotel).
2.5 The Supplemental Y2K Services furnished by Provider will be limited to
those specifically described in any work order hereunder and will include
only Year 2000 services regarding computer hardware, software issues,
medical equipment, or other services related to that listed in the
definition of Y2K Services. No representative, agent, employee, consultant
or subcontractor of Provider shall be authorized to commit Provider to
provide services outside the scope of those Services described herein and
in any Work Order hereunder, unless approved in writing by Xxx Xxxxxxx or
his successor or superior , with respect to any Y2K Services other than
those related to A/R Vendors and Payor Track services; with respect to A/R
Vendor and Payor Track related Y2K Services Work Orders, such shall be
required to be signed by Xxxx Xxxx or her successor or superior.
2.6 Responsibility for achieving the objectives of the Customer's Y2K
Program will at all times remain with Customer. The sole basis upon which
Provider is willing to undertake the provision of the Services under this
Agreement is the express understanding and agreement that the risk of
adverse consequences in connection with Customer's Year 2000 Program and
date processing issues (including liability, noncompliance, "contamination"
after implementation of recommended solutions, failure of Customer's Year
2000 program in any respect, and untimely completion) is and will remain at
all times with Customer and will not shift to Provider in whole or in any
part by reason of Provider's entering into this Agreement or performance of
the Services under this Agreement or any Work Order.
2.7 In providing Services, Provider will be entitled to rely, without
audit, review or verification, on representations and other information
from OEMs and other vendors concerning the Year 2000 and other date
handling characteristics of their equipment, hardware, software, devices,
parts, and services, and their compliance/non-compliance or manner of
compliance/non-compliance with date processing requirements and standards.
Provider will not be responsible for the failure of any software, hardware,
peripherals or parts furnished by any such vendors to perform as required
by Customer.
2.8 Customer's executive management shall be responsible for determining
the proper use of the Y2K Information, and the overall direction of the Y2K
Supplemental Services, determining whether the Services to be performed
will satisfy Customer's needs, providing active sponsorship of Y2K Program
throughout the Customer's organization, properly staffing its Y2K Program,
-3-
establishing priorities as may be necessary and consistent with the
Services and evaluating the findings resulting from performance of the
Services.
2.9 Provider and Provider's vendors or subcontractors (with respect to
proprietary property provided by such vendors or subcontractors) will have
and retain all right, title and interest, including ownership of
copyrights, patents, trade secrets and other intellectual property rights
in and to all tools, methodologies or other intellectual property
(including intellectual property embodied in software) that is supplied or
used by Provider or such third parties in the performance of the Services,
including any enhancements, improvements or other derivative works thereof
developed in the course of Provider's or its subcontractors' performance
under this Agreement. Provider and any of its subcontractors retain the
right to use their knowledge, experience, and know-how, including
processes, ideas, concepts and techniques developed in the course of
performing the Services hereunder, internally and in the course of
providing consulting services to other clients.
3. Limitations of Liability.
------------------------
3.1 Provider shall have no liability for the Services and Y2K Information
provided hereunder, including, but not limited to, consequential,
incidental, indirect, direct, punitive or special damages (including loss
of profits, loss or reconstruction of data, loss of business opportunities,
business or goodwill), regardless of whether such liability is based on
breach of contract, tort, strict liability, breach of warranties, failure
of essential purpose or otherwise, and even if advised of the likelihood of
such damages.
3.2 Provider's total liability to Customer for any claim, regardless of
whether such liability is based on breach of contract (such as non-
performance of Services), tort (such as negligence), strict liability,
breach of warranties, failure of essential purpose or otherwise, under this
Agreement or with respect to the Services, shall be limited to the total
amount of fees paid pursuant to paragraph 5.1.
4. Confidentiality.
----------------
4.1 "Confidential Information" is defined to include the identity of
patients, the content of medical records, financial and tax information,
information regarding Medicare, Medicaid, and any other claims submission
and reimbursements, the object and source codes and documentation for
proprietary software, Year 2000 compliance information (including that in
Provider's Knowledgebase System), and such other information to be
disclosed by either party that is confidential or proprietary business
information and delivered or disclosed pursuant to this Agreement.
4.2 The party receiving the Confidential Information (the "Receiving
Party") from the party who owns or holds in confidence such Confidential
Information
-4-
(the "Owning Party") may only use the Confidential Information (the "Owing
Party") may only use the Confidential Information solely for the purpose of
performing its obligations or enforcing its rights under this Agreement, or
utilizing the information for remediating its equipment and systems.
4.3 Each party shall take appropriate action, by instruction to or
agreement with its employees, agents and subcontractors, to identify,
label, and otherwise maintain the confidentiality of the Confidential
Information. Either party may disclose any Confidential Information on an
as-needed basis to its non-employee fiduciaries, including without
limitation attorneys, accountants, auditors, controlling persons, officers,
directors or trustees, without Provider's prior consent. The Receiving
Party shall promptly notify the Owning Party in the event that the
Receiving Party learns of unauthorized release of Confidential Information.
4.4 The Receiving Party shall have no obligation with respect to:
(a) Confidential Information made available to the general
public without restriction by the Owning Party or by an
authorized third party;
(b) Confidential Information rightfully known to the
Receiving Party independently of disclosure by the Owning Party
prior to this Agreement or under this Agreement;
(c) Confidential Information independently developed by the
Receiving Party; or
(d) Confidential Information that the Receiving Party may
be required to disclose pursuant to subpoena or other lawful
process; provided, however, that the Receiving Party notifies the
Owning Party in a timely manner to allow the Owning Party to
appear and protect its interests.
4.5 Upon the termination or expiration of this Agreement, each party shall
(i) immediately cease to use the other party's Confidential Information,
(ii) return to the other party such Confidential Information and all copies
thereof within ten (10) days of the termination, and (iii) upon request,
certify in writing to the other party that it has complied with its
obligations set forth in this Section 4, unless otherwise provided in this
Agreement.
4.6 Each party agrees to provide reasonable assistance and cooperation
upon the reasonable request of the other party in connection with any
litigation against third parties to protect the requesting party's
Confidential Information, provided that the party seeking such assistance
and cooperation shall reimburse the other party for its reasonable out-of-
pocket expenses.
5. Fees and Compensation.
----------------------
5.1 As compensation for providing Y2K Services, Customer agrees to pay
Provider fees of $20,205 per month for Y2K Services other than A/R Vendor
and Payor Track Services, plus $2,300 per month for A/R Vendor and Payor
-5-
Track Services, from the Effective Date of this Agreement through December
31, 1999. The fee for the month of May, 1999 shall be prorated based on
the actual Effective Date of this Agreement. For the balance of the term
of this Agreement after December 31, 1999, the total monthly fees shall be
two percent (2%) of the amounts Provider estimates as its total costs for
providing Y2K Services to Columbia/HCA affiliated facilities, LifePoint
affiliated facilities and LifePoint affiliated facilities. If Customer
sells or divests any affiliated hospitals, or acquires any new hospitals,
which Provider agrees to add to this Agreement, upon receipt of written
notice of such by Provider, the fees stated in this paragraph shall be
reduced or increased on a prorata hospital to hospital basis (e.g., if the
number of hospitals is originally 10 and 2 hospitals are sold, then the
fees shall be reduced 20%).
5.2 Provider shall invoice Customer monthly, in arrears, for Services
rendered and expenses incurred under this Agreement. Customer shall submit
payment to Provider within thirty (30) days of the date of each invoice
from Provider. Customer will pay to Provider amounts equal to any taxes,
however designated or levied, based upon the charges payable by Customer
hereunder, or upon this Agreement or the Services or materials provided
hereunder, or their use, including state and local sales, use, privilege or
excise taxes, and any taxes paid or payable by Provider in respect of the
foregoing, but excluding any taxes based on the income of Provider.
Provider shall have the right to assess a fee equal to the lesser of 1.8%
per month or the maximum permitted by law or any amounts more than 30 days
past due.
5.3 Without prejudice to Provider's right to terminate this Agreement for
breach or any other rights and remedies, Provider shall have the right to
cease performing Services and/or terminate this Agreement if Customer's
failure to pay any amounts owed to Provider hereunder extends beyond a
period of 30 days; provided, however, that following such 30 day period,
Provider shall give at least 10 days' prior written notice to Customer of
its intent to cease performing the Services starting on the date specified
in said notice. Customer shall have the right to cure such defaults by
paying all amounts owed prior to the end of such ten day period. In the
event of termination of this Agreement for any reason, the Customer shall
pay Provider all accrued fees payable to Provider in accordance with this
Agreement for any and all Services rendered, and all expenses related
thereto, up to the effective date of the termination.
6. Warranties/Disclaimers
----------------------
6.1 The parties acknowledge that there may be certain inadequacies and
deficiencies in Customer's equipment, assets, hardware, software and
systems, with respect to Year 2000 and other date processing requirements,
which may have the potential to cause adverse consequences to Customer in
the form of business losses, claims, damages or liability to third parties.
Provider is willing to provide the requested assistance described in this
Agreement only if the risk of adverse consequences relating to or arising
out of Year 2000 and other date
-6-
processing requirements remains at all times with Customer, and will not
shift to Provider in whole or in any part by reason of Provider's entering
into this Agreement or performance of services under this Agreement.
Therefore, except as may be otherwise expressly specified in this
Agreement, Customer has agreed that Provider will disclaim any and all
warranties with respect to the Services provided under this Agreement, that
Provider's liabilities under this Agreement will be limited, as provided
hereunder, and that Provider will be indemnified by Customer for any loss
or liability arising out of this Agreement or the Services provided.
6.2 PROVIDER DISCLAIMS ALL WARRANTIES AND MAKES NO REPRESENTATIONS OF ANY
KIND OR NATURE WITH RESPECT TO THE SERVICES OR ANY OBLIGATION, LIABILITY,
PERFORMANCE, NONPERFORMANCE, OR ANY OTHER MATTER IN CONNECTION WITH THIS
AGREEMENT, WHETHER EXPRESSED OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY,
NON-INFRINGEMENT, TITLE OR OTHERWISE. PROVIDER DOES NOT WARRANT OR
REPRESENT THAT ITS PERFORMANCE OF SERVICES HEREUNDER WILL BE ERROR-FREE,
FREE OF UNINTENDED CONSEQUENCES, TIMELY, OR FULLY COMPREHENSIVE. PROVIDER
WILL NOT BE RESPONSIBLE FOR ANY ERRORS, DEFECTS, OR DELAYS IN THE SERVICES
OR THE UNTIMELY PERFORMANCE THEREOF.
6.3 The parties acknowledge and agree that the disclaimers of warranties,
the limitations of liability, and the indemnities provided for herein
represent the agreed and bargained for understanding of the parties, and
that Provider's compensation hereunder reflects such allocations of risk.
Customer specifically acknowledges and agrees that Provider would not be
willing to enter into this Agreement or undertake the provision of the
Services described in this Agreement in the absence of such provisions.
6.4 All statements and information provided by Provider hereunder,
including Y2K Information, is hereby designated as a "YEAR 2000 READINESS
DISCLOSURE" under the Year 2000 Information and Readiness Disclosure Act
(Public Law 105-271).
7. Books, Records, and Compliance.
-------------------------------
7.1 Pursuant to the requirements of 42 CFR 420.300 et seq., Provider
agrees to make available to the Secretary of Health and Human Services
("HHS"), the Comptroller General of the Government Accounting Office
("GAO") or their authorized representatives, all contracts, books,
documents and records relating to the nature and extent of costs hereunder
for a period of four (4) years after the furnishing of services hereunder
for any and all services furnished under this Agreement. In addition,
Provider hereby agrees to require by contract that each subcontractor make
available to the HHS and GAO, or their authorized
-7-
representative, all contracts, books, documents and records relating to the
nature and extent of the costs thereunder for a period of four (4) years
after the furnishing of services thereunder.
7.2 Provider agrees to comply at all times with the regulations issued by
the Department of Health and Human Services, published at 42 CFR 1001, and
which relate to Provider's obligation to report and disclose discounts,
rebates and other reductions to Customer for products purchased by Customer
under this Agreement.
7.3 If Provider carries out the duties of this Agreement through a
subcontract worth $10,000 or more over a twelve month period with a related
organization, the subcontract will also contain a clause substantially
identical to the Sections 7.1 and 7.2 to permit access by the Secretary,
the United States Comptroller General and their representatives to the
related organization's book and records.
7.4 Customer's rights under this Section 7 shall survive for a period of
four (4) years after termination or expiration of this Agreement.
8. Customer Additional Responsibilities.
-------------------------------------
8.1 During the term of this Agreement, Customer agrees to do the following
at no charge to Provider:
(a) provide to Provider, unrestricted rights and licenses
to all the Customer's applications and, if necessary and to the
extent possible, sublicenses under third party licenses that are
necessary or desirable to permit Provider to provide the Services
as contemplated herein;
(b) provide Provider with all data, information, access to
the Customer's facilities (or make other arrangements as
necessary to such effect) and other resources and support as may
be appropriate to enable Provider to perform the Services in a
timely manner and otherwise fully cooperate with Provider in
connection therewith;
(c) timely participate in meetings and make its personnel
readily available for such meetings;
(d) assign personnel with relevant training and experience
to work as part of a project team with Provider or in
consultation with Provider's personnel, at corporate, facility,
and other appropriate levels within Customer.
9. Assignment. Customer shall not, directly or indirectly, by assignment or
-----------
change of control or otherwise, transfer this Agreement or any of its rights or
obligations hereunder without the prior written consent of the Provider, which
consent can be withheld at the sole discretion of Provider. This Agreement
shall inure to the benefit of and bind permitted successors and assigns of
Provider and Customer. Any assignment
-8-
that is not in accordance with that stated in this Paragraph shall be void and
have no effect.
10. Indemnification.
----------------
10.1 Customer shall indemnify and hold harmless Provider and its
affiliates, directors, officers, employees, attorneys, predecessors,
successors, agents and assigns (collectively, the "Indemnitee") from and
against any and all claims, demands, obligations, losses, liabilities,
judgments, awards and costs (including legal fees and expenses) arising
out of or related to any claim for loss, breach of contract, personal
injury, bodily injury, property damage or other claims for relief, whether
know or unknown, including any damages finally awarded attributable to
such claim and any reasonable expense incurred by Indemnitee in assisting
Customer in defending against such claim, that arises out of or is related
to this Agreement, Provider's furnishing of Services under this Agreement
or the Year 2000 Information . In the event Customer elects not to defend
any such claim, then Indemnitee shall have the option but not the duty to
reasonably defend or settle the claim and Customer shall indemnify
Indemnitee for such settlement or any damages finally awarded against
Indemnitee attributable to such claim, reasonable costs and expenses
(including attorneys' fees), and interest on such recoverable funds
advanced.
10.2 Customer shall indemnify, defend and hold harmless Provider from and
against all claims (from all causes of action of any kind, including
contract, tort or otherwise) related to or arising out of this Agreement
or the Services provided hereunder, and any losses, liabilities, damages
and expenses that are incurred as a result of any such claims.
11. Work Environment. When Provider's employees or agents are physically
-----------------
assigned to work on Customer's premises (which will only occur upon mutual
agreement of the Parties), Customer shall provide (free of charge) to Provider's
employees and/or agents a work environment suit for performance of Services,
including space and environment that is not less favorable than the work
environment provided to Customer's employees, including reasonable work space,
furniture, supplies and equipment, to enable Provider to perform its obligations
under this Agreement and any work order executed hereunder.
12. Insurance. As of the Effective Date of this Agreement, Customer shall have
----------
in force the following coverage with limits of liability of $10 million for each
and every occurrence:
. Healthcare Professional Liability
. Comprehensive General Liability
Customer will keep all such policies in effect (during the term of this
Agreement and for six (6) years thereafter) with at least such limit of
liability for covered claims arising out of events, errors, omission , or other
covered items which took place during the term of
-9-
this Agreement, at the expense of Customer. Customer will use its best efforts
to notify Provider in writing within five (5) days of Customer's receipt of any
notice of cancellation of, or any material change in, the policy. Customer will
cause Provider to be named as additional insureds under each such policy with
respect to the Services. Customer waives all rights of recovery against Provider
and its employees for property damage, bodily injury, personal injury and/or
other damages allegedly caused by Provider's performance of services hereunder
or otherwise, to the extent covered by Customer's insurance. All such coverage
must be maintained with an insurer reasonably acceptable to Provider. To the
extent Customer is required to maintain uninterrupted insurance as set forth
herein for covered claims arising out of events, errors, omissions, or other
covered prior acts endorsement, or an unlimited reporting endorsement when
applicable, upon request by Provider, Customer will provide Provider with
certificates of insurance or other adequate proof of such coverage and the
satisfaction of all requirements of this Section, and, upon request, Customer
agrees to furnish Provider with updated certificates of insurance upon the
renewal of such coverages.
13. Termination and Survival.
-------------------------
13.1 The term of this Agreement commences on the Effective Date and
continues through June 30, 2000. The term may be extended upon written
agreement of both parties, with signature by Xxx Xxxxxxx, his successor or
superior required to bind Provider.
13.2 This Agreement may be terminated by either party upon the other
party's failure to cure a material breach of this Agreement, within thirty
(30) days of receipt of written notice describing the nature of the
alleged material breach. Termination for non-payment shall be pursuant to
paragraph 2.6.
13.3 Either party may terminate without cause upon 45 days prior written
notice.
13.4 Any provision of this Agreement related to confidentiality, publicity
and indemnification or which by its terms provides for survival shall
survive the termination of this Agreement.
14. Notice. All notice required or permitted under this Agreement shall be in
-------
writing and delivered via fax (with answer-back confirmation), overnight or
express mail or certified mail (return receipt requested), or in person to the
other Party at its address set forth below, or to such other address as either
Party may designate subsequently in writing.
If to Provider:
CHCA Management Services, L.P.
Xxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: VP, Operations Support
-10-
With a copy to:
CHCA Management Services, L.P.
Xxxxx Xxxxxxxxxx
Xxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
If to Customer:
LifePoint Hospitals Holdings, Inc.
00000 Xxxx Xxxx
Xxxxxx, XX 00000
Attention:
With a copy to:
LifePoint Hospitals Holdings, Inc.
00000 Xxxx Xxxx
Xxxxxx, XX
Attention: General Counsel
15. Governing Law. This Agreement shall be governed by and construed in all
--------------
respects in accordance with the laws of the State of Tennessee without regard to
that state's choice of law provisions. Any dispute hereunder shall be resolved
in the state or federal courts having jurisdiction located in Nashville,
Tennessee.
16. Severability. All agreements, clauses and covenants contained herein are
-------------
severable, and in the event any of them shall be held to be unconstitutional,
invalid, illegal, or unenforceable, the remainder of this Agreement shall be
interpreted as if such unconstitutional, invalid, illegal or unenforceable
agreements, clauses or covenants, were not contained herein. IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT THAT
PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF
DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER
PROVISION AND TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND
AGREED THAT IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED
OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES
SET FORTH HEREIN SHALL REMAIN IN EFFECT.
17. Waiver; Modification. The failure by either party to exercise any right
---------------------
provided hereunder shall not be deemed a waiver of such right. This Agreement
may be amended,
-11-
modified or supplemented only by a writing signed by the parties to this
Agreement, by Xxx Xxxxxxx, his successor or superior required to bind Provider.
Such amendments, modifications or supplements shall be deemed as much a part of
this Agreement as if so incorporated herein.
18. Integration. The parties hereto acknowledge that they have read this
------------
Agreement in its entirety and understand and agree to be bound by all of its
terms and conditions, and further agree that this Agreement and any Work Order
executed hereunder and any exhibits or schedules hereto or thereto constitute a
complete and exclusive statement of the understanding between the parties with
respect to delivery of Services by Provider, which supersede any and all other
communications between the parties relating to the Services, whether written or
oral. Any prior agreements, promises, negotiations or representations related to
the delivery of the Services by Provider not expressly set forth in this
Agreement or in a Work Order executed hereunder, are of no force and effect.
19. Independent Contractor. Provider, in performance of this Agreement, is
-----------------------
acting as an independent contractor and shall have the exclusive control of the
manner and means of performing the work contracted for hereunder. Personnel
supplied by Provider hereunder, whether or not located on Customer's premises,
are not Customer's employees or agents. Nothing contained in this Agreement
shall be construed to create a joint venture or partnership between the parties.
20. Force Majeure. Neither party hereto shall be liable for any failure or
--------------
delay in performance of its obligations hereunder by reason of any event or
circumstance beyond its reasonable control, including without limitation acts of
God, war, riot, strike, labor disturbance, fire, explosion, flood, utility
outages, or shortage or failure of suppliers
21. Alternative Dispute Resolution; Attorneys fees. In the event of a dispute
-----------------------------------------------
between the parties that cannot be resolved between them, the parties shall
submit their dispute to non-binding mediation prior to initiating litigation.
Each party shall bear their own costs and expenses of participating in the
mediation (including without limitation, attorneys' fees) and each party shall
bear one-half (1/2) of the costs and expenses of the mediator. The matters
discussed or revealed in the mediation session shall not be revealed in any
subsequent litigation, except as expressly provided in this Section. In the
event the matter is not resolved in the mediation, suit may be brought. In
addition to recovering any damages or other relief awarded by the court, the
prevailing party may recover attorneys' fees, provided, however, any award of
attorneys' fees shall be limited as follows: (a) the award shall not exceed the
amount of monetary damages awarded to the prevailing party by the court, and (b)
no award shall be made if, within 30 days following the filing of an answer to a
complaint, the party made an offer to settle the dispute and the amount of
monetary damages awarded in the court proceeding was less than or equal to the
settlement offer. Nothing in this Section shall be deemed to limit a party's
access to the court system to pursue a remedy which is limited to injunctive
relief.
-12-
22. No Third Party Rights. This Agreement is entered solely by and between,
----------------------
and may be enforced only by, Provider, Customer, and their permitted assigns.
This Agreement shall not be deemed to create any rights in third parties,
including, without limitation, suppliers, customers, patients and affiliates of
either party, including without limitation Customer and its affiliates, or to
create any obligations of a party to any such third parties.
23. Counterparts. This Agreement may be executed in one or more counterparts,
-------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same document. In making proof of this Agreement, it
shall not be necessary to produce or account for more than one such counterpart
executed by the party against whom enforcement of this Agreement is sought.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their authorized representatives as of the date first set forth above.
CHCA Management Services, L.P. LifePoint Hospitals Holdings, Inc.
By its General Partner,
CMS GP, LLC
By: /s/ Xxxxxx Xxx Xxxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxxxxxx III
----------------------------- ------------------------------
Name: Xxxxxx Xxx Xxxxxx, Xx. Name: Xxxxxxx X. Xxxxxxxxx III
Title: Manager Title: Senior Vice President,
General Counsel & Secretary
Date: May 11, 1999 Date: May 11, 1999
-13-
