EXHIBIT 10.44 TO CURRENT REPORT ON FORM 8-K DATED AS OF APRIL 7, 2003
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NETWORK ACCESS AGREEMENT
This NETWORK ACCESS AGREEMENT (the "Agreement") is made and entered into
this 7th day of April, 2003 by and between Health Net Life Insurance Company, a
California domiciled life and disability insurance company ("HNL"), and
SafeHealth Life Insurance Company, a California domiciled life and disability
insurance company ("SafeHealth").
RECITALS
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WHEREAS, HNL has developed and maintains a network of providers of dental
care and dental services to provide quality dental health care services in a
timely and efficient manner consistent with good dental practices at contracted
rates;
WHEREAS, pursuant to the Purchase and Sale Agreement by and between Health
Net, Inc. and SafeGuard Health Enterprises, Inc. dated April 7, 2003 ("Purchase
and Sale Agreement"), SafeGuard Health Enterprises, Inc. agreed, among other
things, to purchase and Health Net, Inc. agreed, among other things, to transfer
and assign to SafeGuard Health Enterprises, Inc. or its Designee, all of HNL's
right, title and interest in the agreements between the Dental Providers (as
defined herein) under contract with HNL to provide dental services or dental
supplies to HNL Subscribers (as defined herein) in California, Arizona and
Oregon capable of being assigned or transferred by HNL to SafeGuard Health
Enterprises, Inc. or its Designee;
WHEREAS, as a condition to the obligation of the parties to consummate the
Purchase and Sale Agreement, the parties agreed to enter into an agreement at
the Closing to use commercially reasonable efforts to provide SafeHealth as the
Designee of SafeGuard Health Enterprises, Inc. continued access after the
Closing to those Dental Providers with dental provider agreements which HNL is
not able to assign to SafeHealth;
WHEREAS, HNL and SafeHealth desire to enter into this Agreement under which
HNL will use its commercially reasonable efforts to provide SafeHealth with
access to the Dental Providers.
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS
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Capitalized terms used in this Agreement and not otherwise defined shall
have the meanings given such terms in the Purchase and Sale Agreement. For
purposes of this Agreement, the following terms shall have the meanings
specified below.
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"Assumption and Indemnity Reinsurance Agreement" means the Assumption and
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Indemnity Reinsurance Agreement by and between Health Net Life Insurance Company
and SafeHealth Life Insurance Company dated April 7, 2003.
"Change of Control" means the acquisition, in a single transaction or in a
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series of related transactions, by a person, an entity or a group of persons
acting in concert of fifty-one percent (51%) or more of the voting securities of
a party, or fifty-one percent (51%) or more of the aggregate value of the assets
of a party.
"Contract" mean a contract between HNL and a Dental Provider for the
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provision of Covered Services to HNL Subscribers in force as of the Effective
Date.
"Covered Services" means those dental services and dental supplies that are
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described in a Subscriber Agreement.
"Dispute" shall have the meaning set forth in Section 7.01.
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"Dental Provider" means a dentist, dental health service provider, or a
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dental supply provider who or which as of the Effective Date is party to a
Contract with HNL to provide dental services or dental supplies to HNL
Subscribers who reside in California, Arizona or Oregon.
"Effective Date" means the Closing Date of the Purchase and Sale Agreement
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by and between Health Net, Inc. and SafeGuard Health Enterprises, Inc. dated
April 7, 2003.
"HNL Subscriber" means the person who has entered into an individual or
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group Subscriber Agreement with HNL or any of its Affiliates and who is eligible
to receive Covered Services from HNL or any of its Affiliates. For purposes of
this Agreement, Subscribers under Non-Novated Dental Policies (as defined in the
Assumption and Indemnity Reinsurance Agreement) shall be considered HNL
Subscribers and Non-Novated Dental Policies shall be considered HNL Subscriber
Agreements.
"JAMS" shall have the meaning set forth in Section 7.02.
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"Losses" shall have the meaning set forth in Section 8.02.
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"Network List" shall have the meaning set forth in Section 2.04.
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"Non-Novated Dental Policies" shall have the meaning set forth in the
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Assumption and Indemnity Reinsurance Agreement.
"Notice of Transfer" shall have the meaning set forth in Section 2.02.
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"Novated Dental Policies" shall have the meaning set forth in the
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Assumption and Indemnity Reinsurance Agreement.
"Participating Dental Provider" means any Dental Provider who or which has
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not consented to the assignment by HNL of their Contract to SafeHealth, but who
or which has
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otherwise consented to provide dental services or dental supplies to SafeHealth
Subscribers in California, Arizona or Oregon on the same terms and conditions as
contained in the Contract with such Dental Provider and who or which SafeHealth
determines meets the credentialing and contracting criteria established by
SafeHealth.
"SafeHealth Subscriber" means the person who has entered into an individual
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or group Subscriber Agreement with SafeHealth or any of its Affiliates and who
is eligible to receive Covered Services from SafeHealth or any of its
Affiliates. For purposes of this Agreement, Subscribers under Novated Dental
Policies (as defined in the Assumption and Indemnity Reinsurance Agreement)
shall be considered SafeHealth Subscribers and Novated Dental Policies shall be
considered SafeHealth Subscriber Agreements.
"Subscriber Agreement" means an agreement with a Subscriber that describes
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the Covered Services and which sets forth the terms and conditions of coverage
and enrollment.
ARTICLE II
HNL SERVICES
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Section 2.1 Access to Network. Subject to and consistent with the
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terms and conditions of this Agreement, HNL shall provide to SafeHealth access
to the Dental Providers who or which allow such access under their Contracts for
the purpose of providing dental services or dental supplies to SafeHealth
Subscribers. SafeHealth shall cooperate with HNL to arrange access by
SafeHealth Subscribers to any Dental Provider whose Contract does not expressly
permit such access and who or which SafeHealth determines meets the
credentialing and contracting criteria established by SafeHealth.
Section 2.2 Notice to Dental Providers. HNL and SafeHealth shall
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jointly prepare and deliver to each Dental Provider a notice informing each
Dental Provider of the agreement reached between HNL and SafeHealth for the
transfer of the Dental Policies from HNL to SafeHealth pursuant to the
Assumption and Indemnity Reinsurance Agreement and requesting each Dental
Provider to consent to the assignment by HNL of such Dental Provider's Contract
to SafeHealth (the "Notice of Transfer"). The expense of preparing and
delivering the Notice of Transfer to each Dental Provider shall be shared
equally by the parties. The parties shall use commercially reasonable efforts
to take such actions or cause to be done such things necessary, proper or
appropriate to obtain the consent of the Dental Providers to the assignment by
HNL of their Contracts to SafeHealth. Upon receipt of a consent by a Dental
Provider to the assignment by HNL of his, her or its Contract to SafeHealth, HNL
shall take such actions necessary or appropriate to effect the assignment of
such Dental Provider Contracts to SafeHealth.
Section 2.3 Access to Dental Providers. SafeHealth understands and
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acknowledges that certain Dental Providers may elect not to consent to the
assignment of their Contract by HNL to SafeHealth. When HNL has information
that a Dental Provider has indicated that he, she or it will not consent to the
assignment by HNL of such Dental Provider's Contract to SafeHealth, HNL shall
use its commercially reasonable efforts to cause each such Dental Provider
selected by SafeHealth to provide dental services or dental supplies to
SafeHealth Subscribers on the same basis, terms and conditions as such Dental
Provider has agreed to
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provide Covered Services to HNL Subscribers, provided, however, that HNL shall
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not be required to take any action with respect to any Contract that would
constitute a breach thereof, a violation of Law, or that would result in a
failure by HNL to provide access to HNL Subscribers to an adequate network of
Dental Providers.
Section 2.4 Network List. Thirty (30) days prior to the Effective
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Date, HNL shall deliver to SafeHealth a list of Dental Providers (the "Network
List") in a mutually acceptable electronic format that is accurate as of the end
of the calendar month preceding delivery of the Network List. The Network List
shall contain information regarding each Dental Provider including name, billing
address, facility office address, telephone number, tax identification number,
the Contract fee schedule, Contract effective date, Contract termination date,
and any specialty. On a monthly basis thereafter, HNL shall deliver to
SafeHealth (i) updates of all information contained in the Network List and any
additional information in HNL's possession reasonably necessary for SafeHealth
to monitor and maintain an accurate database of Dental Providers and to maintain
the sufficiency and accuracy of SafeHealth's claim processing and payment
systems, (ii) a list of all Dental Providers who or which have consented to the
assignment of their Contract from HNL to SafeHealth, and (iii) a list of all
Dental Providers who or which have agreed to be Participating Dental Providers.
Section 2.5 Maintenance of Network. HNL shall use commercially
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reasonable efforts to maintain and enforce all provisions of the Contracts with
Participating Dental Providers, provided, however, HNL shall not be required to
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recruit or enter into a contract with any person or entity who or which is not a
Dental Provider as of the Effective Date.
Section 2.6 Termination of Contracts. HNL shall notify SafeHealth as
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soon as reasonably practicable of the receipt by HNL of a notice of a
Participating Dental Provider's intention to terminate his, her or its Contract.
Nothing herein shall preclude HNL from terminating any Participating Dental
Provider either for cause or at the direction of SafeHealth in a manner
consistent with the provisions of the Contract of each Participating Dental
Provider. If the Contract of a Participating Dental Provider terminates, the
obligation of HNL to use its commercially reasonable efforts to cause such
Participating Dental Provider to provide dental services or dental supplies to
SafeHealth Subscribers shall cease effective on the date such termination
becomes effective.
Section 2.7 Communications. HNL shall notify SafeHealth in writing
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promptly after receiving any actual or constructive notice of any investigation,
complaint, grievance or adverse action against any Participating Dental
Provider, including without limitation (i) any action against a Participating
Dental Provider's state license, accreditation, or certification, or (ii) any
event or circumstance which reasonably could be expected to interfere materially
with, modify, or alter the performance of any Participating Dental Provider's
duties or obligations under its Contract.
Section 2.8 Grievance Procedure. HNL and SafeHealth shall cooperate to
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resolve any questions or complaints involving a Participating Dental Provider
related to dental services or dental supplies provided to SafeHealth
Subscribers.
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ARTICLE III
OBLIGATIONS OF SAFEGUARD
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Section 3.1 Direct Contracting. As soon as reasonably practicable
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after the Effective Date, SafeHealth shall use commercially reasonable efforts
to contract directly with the those Dental Providers who or which (i) do not
consent to the assignment of their Contract from HNL to SafeHealth, (ii) who or
which SafeHealth determines meet the SafeHealth credentialing requirements as of
the Effective Date, and (iii) who or which SafeHealth determines are necessary
or desirable to provide dental services or dental supplies to SafeHealth
Subscribers. If any Dental Provider enters into a direct contractual
relationship with SafeHealth, HNL's obligations to SafeHealth with respect to
such Dental Provider pursuant to this Agreement shall cease, provided, however,
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HNL shall maintain its Contract with any Dental Provider that contracts directly
with SafeHealth if necessary to provide HNL Subscribers under Non-Novated Dental
Policies with access to an adequate network of Dental Providers.
Section 3.2 Agreements with Contracting Providers. SafeHealth hereby
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accepts and agrees to comply with all provisions of the Contracts with
Participating Dental Providers, including but not limited to, the responsibility
to make payment to any Participating Dental Provider for dental services or
dental supplies provided by the Participating Dental Providers to SafeHealth
Subscribers according to the fee schedule applicable to each Contract. Any fee
schedule maintained by HNL with a Participating Dental Provider shall be
provided by HNL upon request to the SafeHealth. Upon receipt of the written
consent of SafeHealth, HNL may amend the fee schedule applicable to any
Participating Dental Provider in a manner consistent with the terms of the
Contract with such Participating Dental Provider. Notwithstanding the
foregoing, SafeHealth shall not modify in any way any obligation of the parties
set forth in the applicable Contracts executed between HNL and the Participating
Dental Providers.
Section 3.3 Payment of Dental Provider Fees.
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(a) SafeHealth shall retain full responsibility for the payment of all fees
related to dental services and dental supplies provided to SafeHealth
Subscribers by Participating Dental Providers, excluding applicable copayment,
coinsurance and deductible amounts. SafeHealth shall at all times retain full
responsibility for determining compensability and for payment or non-payment of
claims for fees from Participating Dental Providers pertaining to SafeHealth
Subscribers.
(b) HNL shall promptly forward to SafeHealth any claims for fees received
by HNL from Participating Dental Providers pertaining to SafeHealth Subscribers
and payable by SafeHealth, unless SafeHealth has made alternate arrangements in
advance with a Participating Dental Provider to submit claims directly to
SafeHealth for payment. SafeHealth shall pay the claims for fees of
Participating Dental Providers for dental services or dental supplies provided
to SafeHealth Subscribers as soon as practical, but subject to the following
minimum standard: 95% of the monthly volume of clean claims shall be paid or
denied within thirty (30) days of receipt by SafeHealth. For purposes of this
Section 3.03, "clean claim" means a claim that has no defect or impropriety,
including any lack of any required substantiating documentation, or particular
circumstances requiring special treatment that prevents timely payments from
being
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made on the claim. SafeHealth shall promptly notify HNL if they determine that
the minimum reimbursement standards are not met regularly.
Section 3.4 Credentialing. SafeHealth shall annually
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re-credential the Participating Dental Providers utilizing SafeHealth's
credentialing criteria as of the Effective Date. If a Participating Dental
Provider fails to meet the SafeHealth credentialing criteria, upon the request
of SafeHealth, HNL shall terminate the Contract of such Participating Dental
Provider in accordance with its terms. SafeHealth shall require the
Participating Dental Providers to maintain all professional liability and
general liability insurance coverage required by Law or their Contract. Subject
to any applicable confidentiality requirements, HNL and its authorized
representatives shall have the right, upon prior written notice, at all
reasonable times during normal business hours, to inspect, review and make
copies of all books and records of SafeHealth reasonably related to the
credentialing of Participating Dental Providers.
Section 3.5 Quality of Service. SafeHealth shall monitor the quality
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of Covered Services provided by the Participating Dental Providers to HNL
Subscribers and SafeHealth Subscribers through a quality management program
consistent with the prevailing practices and procedures of SafeHealth as of the
Effective Date. In the event the standard or quality of care or service
furnished by a Participating Dental Provider is found to be unacceptable under
such program, SafeHealth shall promptly notify HNL and either (i) use
commercially reasonable efforts to ensure that such Participating Dental
Provider corrects the specified deficiency, or (ii) direct HNL to terminate the
Contract of such Participating Dental Provider in accordance with its Terms.
HNL shall cooperate with SafeHealth and use reasonable efforts to obtain the
cooperation of Participating Dental Providers with SafeHealth's provider
profiling and performance measurement programs and processes.
Section 3.6 Use of Information. SafeHealth may provide the names of
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Participating Dental Providers to SafeHealth Subscribers in provider directories
or otherwise and may use such information as otherwise necessary to carry out
the terms of this Agreement, including but not limited to, attempting to
contract directly with Dental Providers pursuant to Section 3.01. SafeHealth
shall not otherwise use the names, symbols, trademarks or service marks of
Participating Dental Providers without the prior written consent of HNL and the
Participating Dental Providers.
Section 3.7 Subscriber Services. SafeHealth shall perform all
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duties relating to SafeHealth Subscriber services, grievances, appeals and
coordination of care under the SafeHealth Subscriber Agreements.
Section 3.8 Covered Services. Communications as to the scope of
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Covered Services under the SafeHealth Subscriber Agreements and the availability
of same to SafeHealth Subscribers shall be the sole responsibility of the
SafeHealth.
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ARTICLE IV
TERM AND TERMINATION
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Section 4.1 Term. The term of this Agreement shall be for a period of
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one (1) year, commencing on the Effective Date.
Section 4.2 Termination on Mutual Consent. This Agreement may be
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terminated at any time by mutual agreement of the parties hereto in writing.
Section 4.3 Termination for Cause. Either party may terminate this
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Agreement for cause by providing the other party thirty (30) days written notice
of its intention to terminate upon the occurrence of any of the following:
(a) If a party fails to remit any amounts due under this Agreement within
ninety (90) days of the date such amount is due and payable.
(b) If a party breaches a material term, covenant or condition of this
Agreement and fails to cure such breach within thirty (30) days of receiving
written notice of such breach from the non-breaching party. The written notice
of such breach shall make specific reference to the action causing breach. If
the breaching party fails to cure its breach to the reasonable satisfaction of
the non-breaching party during the thirty (30) day cure period, this Agreement
shall terminate at the option of the non-breaching party. In the event such cure
cannot reasonably be completed within such thirty (30) day period, then
commencement of such cure within such thirty (30) days and its diligent
prosecution shall, subject to the party's other rights to terminate the
Agreement, extend the period to cure the breach for an additional period
reasonably necessary to complete the cure.
(c) If a party engages in fraudulent, illegal or grossly negligent conduct
with respect to its duties and obligations under this Agreement, the other party
shall have the right to terminate this Agreement, upon delivery of written
notice of such termination to the defaulting party, which shall be effective
upon receipt, without prejudice to any other rights or remedies available to the
non-defaulting party by reason of the defaulting party's conduct.
(d) If a party becomes unable to perform its obligations under the
Contracts or this Agreement because of financial impairment or loss of authority
to act under Law, or by action of any Governmental Authority, the other party
shall have the right to terminate this Agreement immediately.
(e) In the event of a Change of Control of one party, the other party shall
have the right to terminate this Agreement effective as of the effective date of
the Change of Control.
Section 4.4 Post-Termination Rights and Responsibilities.
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Termination of this Agreement shall not terminate rights and obligations of the
parties which by their nature extend beyond the term. Upon the expiration or
earlier termination of this Agreement, upon the written request of SafeHealth,
SafeHealth and HNL shall coordinate the transfer of SafeHealth Subscribers to
dental providers other than the Dental Providers in a manner consistent with the
SafeHealth Subscribers' need for continuity of dental services and dental
supplies.
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ARTICLE V
RELATIONSHIP OF THE PARTIES
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Section 5.1 Relationship of Parties. The parties to this
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Agreement are and shall remain independent contractors. Neither party is the
employee or agent of the other party, except as set forth herein, and neither
party has an express or implied right to bind the other party. The parties do
not intend to form a joint venture, partnership, or to be governed by Law
relating to any relationship other than that of independent contractors.
Neither party is authorized to modify, alter or waive the terms of any product
issued by the other party.
Section 5.2 Dental Providers. SafeHealth acknowledges that all
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Participating Dental Providers are independent contractors and are not employees
of HNL, or any HNL Affiliate. None of the parties hereto shall attempt,
directly or indirectly, to control, direct or interfere with the practice of
medicine or dentistry by any Participating Dental Provider.
ARTICLE VI
PROTECTION OF CONFIDENTIAL INFORMATION
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Section 6.1 License to Use HNL Materials. HNL may from time to
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time provide to SafeHealth certain materials, brochures, reporting forms, and
other related material, whether in a printed or electronic format, pertaining to
the Participating Dental Providers. HNL grants to SafeHealth a non-exclusive
license to use during the term of this Agreement any such nonconfidential or
nonproprietary materials in a manner consistent with this Agreement and the
Contracts of each Participating Dental Provider.
Section 6.2 Confidentiality of Information. During the term of this
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Agreement and at all times thereafter, SafeHealth shall refrain from disclosing
to any person any confidential or trade secret information of HNL. Upon
termination of this Agreement, SafeHealth shall immediately surrender and return
to HNL all documents relating to HNL's confidential or trade secret information,
including but not limited to, utilization review and quality assurance plans,
utilization review data bases, fee schedules and schedules of charges, billing
systems, any and all operating manuals or similar materials, including without
limitation the policies, procedures, methods of doing business developed by HNL,
other property belonging to HNL, or other matters that are trade secrets of HNL.
SafeHealth agrees that all such documents and materials are the sole property of
HNL and that SafeHealth shall not make any copies thereof. Upon the termination
of this Agreement, neither party shall use or permit the use for any purpose any
of the other party's proprietary or confidential information or trade secrets.
Section 6.3 Subscriber Confidential Information.
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(a) The parties shall maintain the confidentiality of any personal
information, including health information, pertaining to Subscribers and
dependents of Subscribers including, without limitation, files, records,
reports, and other information prepared and maintained in connection with this
Agreement, in accordance with all applicable Law.
(b) Each party shall obtain any necessary consent or authorization from
Subscribers and the dependents of Subscribers with respect to the release to the
other party of any non-public
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personal information, including health information, relating to such Subscribers
or dependents of Subscribers, by means of a general or specific release, as
appropriate. Each party shall notify the other if it becomes aware that proper
authorizations have not been obtained with respect to the release of non-public
personal or health information of a Subscriber or a dependent of a Subscriber.
ARTICLE VII
DISPUTE RESOLUTION
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Section 7.1 Arbitration. In the event of any dispute between the
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parties hereto relating to, arising out of, or in connection with any provision
of this Agreement (hereinafter a "Dispute"), the parties to this Agreement and
their representatives, designees, successors and assigns agree that any such
Dispute shall be settled by binding arbitration to take place in Orange County,
California; provided, however, that nothing herein shall preclude the parties
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from seeking equitable judicial relief pending arbitration, including but not
limited to injunctive or other provisional relief.
Section 7.2 Selection of Arbitrator. Any arbitration hereunder shall
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be conducted by a single arbitrator chosen from the panel of arbitrators of the
Judicial Arbitration & Mediation Services ("JAMS") with experience and expertise
in the dental HMO or dental indemnity insurance business. If a JAMS arbitrator
with specific experience in the dental HMO or dental indemnity insurance
business is not available, the arbitrator must have general experience in the
health insurance industry. Within ten (10) days of notice of a Dispute from HNL
to SafeHealth or notice from SafeHealth to HNL, HNL and SafeHealth shall use
their best efforts to choose a mutually agreeable arbitrator. If HNL and
SafeHealth cannot agree on an arbitrator, the arbitrator shall promptly be
selected by JAMS.
Section 7.3 Procedures. The party submitting a Dispute to arbitration
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hereunder shall present its case to the arbitrator and the other party hereto in
written form within twenty (20) days after the appointment of the arbitrator.
The other party hereto shall then have twenty (20) days to submit a written
response to the arbitrator and the original party who submitted the Dispute to
arbitration. After timely receipt of each party's case, the arbitrator shall
have twenty (20) days to render his or her decision.
Section 7.4 Applicable Law. The arbitrator is relieved from judicial
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formalities and, in addition to considering the rules of law, the limitations
contained in this Agreement and the customs and practices of the health care
industry, shall make his or her award with a view to effectuating the intent of
this Agreement. The decision of the arbitrator shall be final and binding upon
the parties, and judgment may be entered thereon in a court of competent
jurisdiction.
Section 7.5 Expenses. Each party shall bear its own cost of
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arbitration, and the costs of the arbitrator shall be shared equally among each
party to a Dispute.
Section 7.6 Survival of Article. This Article VII shall survive
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termination of this Agreement.
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ARTICLE VIII
ALLOCATION OF LIABILITY & INDEMNIFICATION
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Section 8.1 Limitation of Liability.
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(a) HNL shall not be responsible for any claims, liabilities, expenses or
other obligations arising out of or in connection with any of the benefits,
coverages, or other terms and conditions of SafeHealth Subscriber Agreements,
policies, agreements, or other arrangements issued or entered into by SafeHealth
or any of its Affiliates providing Covered Services to SafeHealth Subscribers or
the performance or non-performance of any of SafeHealth's obligations under this
Agreement. HNL shall not be liable for any breach of any agreement with a Dental
Provider arising from or in connection with any act, error or omission by
SafeHealth. SafeHealth acknowledges that HNL shall have no responsibility to pay
any compensation to any Participating Dental Provider or any other person for
any dental services or dental supplies provided to a SafeHealth Subscriber.
(b) Except as provided in the Assumption and Indemnity Reinsurance
Agreement, SafeHealth shall not be responsible for any claims, liabilities,
expenses or other obligations arising out of or in connection with any of the
benefits, coverages, or other terms and conditions of the HNL Subscriber
Agreements, policies, agreements, or other arrangements issued or entered into
by HNL or any of its Affiliates providing Covered Services to HNL Subscribers or
the performance or non-performance of any of HNL 's or any of HNL's Affiliate's
obligations under this Agreement. SafeHealth shall not be liable for any breach
of any agreement with a Dental Providers arising from or in connection with any
act, error or omission by HNL or any HNL Affiliate.
Section 8.2 Indemnification. Each party shall indemnify and hold
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harmless the other party and their respective directors, officers, employees,
representatives, and agents against any and all losses, liabilities, damages,
demands, claims, actions judgments, causes of action, assessments, costs or
expenses, including without limitation, interest, penalties and reasonable
attorneys' fees (collectively, "Losses") incurred by a party by reason of or
arising out of the performance or non-performance of obligations of the other
party under this Agreement or any other act, error or omission. The obligation
of SafeHealth to indemnify HNL shall include, without limitation, Losses arising
out of SafeGuard's performance or non-performance of the obligations under the
Contracts with Participating Dental Providers in accordance with Section 3.02 of
this Agreement.
ARTICLE IX
GENERAL PROVISIONS
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Section 9.1 Compliance with Laws. Each party shall, in the
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performance of their obligations set forth in this Agreement, comply with all
applicable Law and the rules and regulations of all Governmental Authorities
with jurisdiction over the parties and each party shall maintain all licenses or
certificates necessary or appropriate for the performance of the functions set
forth in this Agreement. Each party shall conform its actions under this
Agreement to any orders concerning the activities covered by this Agreement by
Governmental Authorities having
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jurisdiction over the parties' business affairs and operations. Each party
shall take all actions and make all filing, applications and provide all notices
required by applicable Law. Each party shall promptly notify the other party of
any complaint, inquiry or lawsuit by any Governmental Authority relating to this
Agreement.
Section 9.2 Notices. Any notice or other communication required
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or permitted hereunder shall be in writing and shall be delivered by certified
process server, certified or registered mail (postage prepaid and return receipt
requested), by a nationally recognized overnight courier service (appropriately
marked for overnight delivery) or by facsimile (with request for immediate
confirmation of receipt in a manner customary for communications of such
respective type). Notices shall be effective upon receipt and shall be
addressed as follows:
(a) if to SafeHealth to:
SafeGuard Health Enterprises, Inc.
00 Xxxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxx
President and Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx
Senior Vice President and General Counsel
SafeGuard Health Enterprises, Inc.
00 Xxxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxx X. Xxxxxxxxx
Xxxxxxxxxxx and Price, LLP
000 Xxxx Xxxxxx, Xxx. 0000
Xxxxxx, Xxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
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(b) if to HNL to:
Health Net, Inc.
Att: General Counsel
00000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxx
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Section 9.3 Headings. The headings of the sections of this
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Agreement are included for the purposes of convenience only and shall not affect
the interpretation of any provision hereof.
Section 9.4 Governing Law. This Agreement shall be governed by and
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construed in accordance with the Law of the State of California, without giving
effect to the principles of conflicts of laws thereof.
Section 9.5 Severability. In the event any section or provision of
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this Agreement or related documents is found to be void and unenforceable by a
court of competent jurisdiction, the remaining sections and provisions of this
Agreement or related documents shall nevertheless be binding upon the parties
with the same force and effect as though the void or unenforceable part had not
been severed or deleted.
Section 9.6 Assignability. Except as otherwise expressly provided
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in this Agreement, neither party may assign any of its rights or obligations
under this Agreement without the prior written consent of the other party.
Except as specifically provided in this Agreement, any attempted assignment or
delegation of a party's rights, claims, privileges, duties or obligations
hereunder shall be null and void.
Section 9.7 Successors and Assigns. This Agreement and the rights,
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privileges, duties and obligations of the parties hereunder, to the extent
assignable or delegable, shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assignees.
Section 9.8 Waiver. No waiver of or failure by any party to enforce
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any of the provisions, terms, conditions, or obligations herein shall be
construed as a waiver of any subsequent breach of such provision, term,
condition, or obligation, or of any other provision, term, condition, or
obligation hereunder, whether the same or different in nature. No extension
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of time for performance of any obligations or acts shall be deemed an extension
of the time for performance of any other obligations or acts.
Section 9.9 Expenses. Except as may be specifically provided for in
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this Agreement, all parties shall bear their own expenses incurred in connection
with this Agreement and the transactions contemplated herein, including, but not
limited to, legal and accounting fees.
Section 9.10 Further Assurances. Each party agrees, at its own cost, to do
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such further acts and things and to execute and deliver such additional
agreements and instruments as the other may reasonably require to consummate,
evidence or confirm the agreements contained herein in the manner contemplated
hereby.
Section 9.11 Relationship of Parties. The parties to this Agreement are and
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shall remain independent contractors. Neither party is the employee or agent of
the other party, except as set forth herein, and neither party has an express or
implied right to bind the other party. The parties do not intend to form a
joint venture, partnership, or to be governed by Law relating to any
relationship other than that of independent contractors.
Section 9.12 No Third Party Rights. This Agreement has been made for the
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benefit of the parties hereto and respective successors and permitted assigns
and nothing in this Agreement is intended to confer any rights or remedies under
or by reason of this Agreement on any other person other than the parties to it
and their respective successors and permitted assigns. Nothing in this
Agreement is intended to relieve or discharge the obligations or liability of
any third person to any party to this Agreement.
Section 9.13 Exhibits and Schedules. All exhibits and Schedules referred to
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in this Agreement are incorporated herein by this reference.
Section 9.14 Force Majeure. Neither party- hereto shall be liable for any
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delay or failure in the performance of any obligation under this Agreement or
for any loss or damage (including indirect or consequential damage) to the
extent that such nonperformance, delay, loss or damage results from any
contingency which is beyond the control of such party, provided such contingency
is not caused by the fault or negligence of such party. A contingency for the
purposes of this Agreement shall be acts of God, fires, floods, earthquakes,
explosions, storms, wars, hostilities, blockades, public disorders, quarantine
restrictions, embargoes, strikes or other labor disturbances, and compliance
with any law, order or control of, or insistence by any governmental or military
authority.
Section 9.15 Plurals/Pronouns/Gender. All pronouns and any variations
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thereof shall be deemed to refer to the masculine, feminine or neuter, singular
or plural, as appropriate.
Section 9.16 Locative Adverbs. Whenever in this Agreement the locative
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adverbs "herein," "hereof," or "hereunder" are used, the same shall be
understood to refer to this Agreement in its entirety and not to any specific
article, section, subsection, subpart, paragraph or subparagraph.
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Section 9.17 Integration. This Agreement and all Exhibits and Schedules
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attached hereto constitute the entire agreement between the parties with regard
to the subject matter hereof and thereof. This Agreement supersedes all
previous agreements between or among the parties. There are no agreements,
representations, or warranties between or among the parties with respect to the
subject matter hereof other than those set forth in this Agreement or the
documents and agreements referred to in this Agreement.
Section 9.18 Amendments. No amendment, modification, or supplement to
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this Agreement shall be binding on any of the parties unless it is reduced to
writing and signed by each of the parties. SafeHealth acknowledges that
Contracts permit the implementation of certain amendments unilaterally by HNL
without the consent by the Dental Providers who or which are parties to such
Contracts. SafeHealth shall cooperate with HNL in effecting such amendments to
Contracts as may be required in order to carry out the terms of this Agreement.
Section 9.19 Counterparts. This Agreement may be executed
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simultaneously in any number of counterparts, each of which will be deemed an
original, but all of which will constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
HEALTH NET LIFE INSURANCE COMPANY
/s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
SAFEHEALTH LIFE INSURANCE COMPANY
/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President and Secretary
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