EXHIBIT 10.50 TO CURRENT REPORT ON FORM 8-K DATED AS OF JUNE 30, 2003
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NETWORK ACCESS AGREEMENT
This NETWORK ACCESS AGREEMENT (the "Agreement") is made and entered into
this 30th day of June, 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 vision
care and vision services to provide quality vision care services in a timely and
efficient manner consistent with good vision practices at contracted rates;
WHEREAS, pursuant to the Purchase and Sale Agreement by and between Health
Net, Inc. and SafeGuard Health Enterprises, Inc. dated June 30, 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 Vision Providers (as
defined herein) under contract with HNL to provide vision services or vision
supplies to HNL Subscribers (as defined herein) in California 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 Vision Providers with vision 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 Vision 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 June 30, 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 Vision 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 vision services and vision 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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"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
June 30, 2003.
"HNL Subscriber" means the person who resides in California and who has
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entered into an individual or 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
Vision Policies (as defined in the Assumption and Indemnity Reinsurance
Agreement) shall be considered HNL Subscribers and Non-Novated Vision 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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"NCQA Credentialing Standards" shall have the meaning set forth in Section
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3.04.
"Network List" shall have the meaning set forth in Section 2.04.
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"Non-Novated Vision 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 Vision Policies" shall have the meaning set forth in the
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Assumption and Indemnity Reinsurance Agreement.
"Participating Vision Provider" means any Vision 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 otherwise consented to provide vision services or vision supplies
to SafeHealth Subscribers in California on the same terms and conditions as
contained in the Contract with such Vision
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Provider and who or which SafeHealth determines meets the credentialing and
contracting criteria established by SafeHealth.
"SafeHealth Subscriber" means the person who resides in California and who
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has entered into an individual 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 Vision Policies (as defined in the Assumption and
Indemnity Reinsurance Agreement) shall be considered SafeHealth Subscribers and
Novated Vision Policies shall be considered SafeHealth Subscriber Agreements.
"Strategic Vision Partner" shell have the meaning set forth in Section
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3.09.
"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.
"Vision Provider" means a vision service provider, or a vision supply
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provider who or which as of the Effective Date is party to a Contract with HNL
to provide vision services or vision supplies to HNL Subscribers who reside in
California.
ARTICLE II
HNL SERVICES
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 Vision Providers who or which allow such access under their Contracts for
the purpose of providing vision services or vision supplies to SafeHealth
Subscribers. SafeHealth shall cooperate with HNL to arrange access by
SafeHealth Subscribers to any Vision 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 Vision Providers. HNL and SafeHealth shall
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jointly prepare and deliver to each Vision Provider a notice informing each
Vision Provider of the agreement reached between HNL and SafeHealth for the
transfer of the Vision Policies from HNL to SafeHealth pursuant to the
Assumption and Indemnity Reinsurance Agreement and requesting each Vision
Provider to consent to the assignment by HNL of such Vision Provider's Contract
to SafeHealth (the "Notice of Transfer"). The expense of preparing and
delivering the Notice of Transfer to each Vision 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 Vision Providers to the assignment by
HNL of their Contracts to SafeHealth. Upon receipt of a consent by a Vision
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 Vision Provider Contracts to SafeHealth.
Section 2.3 Access to Vision Providers. SafeHealth understands and
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acknowledges that certain Vision Providers may elect not to consent to the
assignment of their Contract by HNL to SafeHealth. When HNL has information
that a Vision Provider has indicated that he, she or it will not consent to the
assignment by HNL of such Vision Provider's Contract to SafeHealth,
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HNL shall use its commercially reasonable efforts to cause each such Vision
Provider selected by SafeHealth to provide vision services or vision supplies to
SafeHealth Subscribers on the same basis, terms and conditions as such Vision
Provider has agreed to provide Covered Services to HNL Subscribers, provided,
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however, that HNL shall not be required to take any action with respect to any
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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 Vision Providers.
Section 2.4 Network List. Thirty (30) calendar days prior to the
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Effective Date, HNL shall deliver to SafeHealth a list of Vision 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 Vision 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 Vision
Providers and to maintain the sufficiency and accuracy of SafeHealth's claim
processing and payment systems, (ii) a list of all Vision Providers who or which
have consented to the assignment of their Contract from HNL to SafeHealth, and
(iii) a list of all Vision Providers who or which have agreed to be
Participating Vision 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 Vision 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
Vision 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 Vision Provider's intention to terminate his, her or its Contract.
Nothing herein shall preclude HNL from terminating any Participating Vision
Provider either for cause or at the direction of SafeHealth in a manner
consistent with the provisions of the Contract of each Participating Vision
Provider. If the Contract of a Participating Vision Provider terminates, the
obligation of HNL to use its commercially reasonable efforts to cause such
Participating Vision Provider to provide vision services or vision 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 Vision
Provider, including without limitation (i) any action against a Participating
Vision 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 Vision Provider's
duties or obligations under its Contract.
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Section 2.8 Grievance Procedure. HNL and SafeHealth shall cooperate to
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resolve any questions or complaints involving a Participating Vision Provider
related to vision services or vision supplies provided to SafeHealth
Subscribers.
ARTICLE III
OBLIGATIONS OF SAFEHEALTH
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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 Vision 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 vision services or vision supplies to SafeHealth
Subscribers. If any Vision Provider enters into a direct contractual
relationship with SafeHealth, HNL's obligations to SafeHealth with respect to
such Vision Provider pursuant to this Agreement shall cease, provided, however,
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HNL shall maintain its Contract with any Vision Provider who or which contracts
directly with SafeHealth if necessary to provide HNL Subscribers under
Non-Novated Vision Policies with access to an adequate network of Vision
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 Vision Providers, including but not limited to, the responsibility
to make payment to any Participating Vision Provider for vision services or
vision supplies provided by the Participating Vision Providers to SafeHealth
Subscribers according to the fee schedule applicable to each Contract. Any fee
schedule maintained by HNL with a Participating Vision 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 Vision Provider in a manner consistent with the terms of the
Contract with such Participating Vision 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
Vision Providers.
Section 3.3 Payment of Vision Provider Fees.
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(a) SafeHealth shall retain full responsibility for the payment of all
fees related to vision services and vision supplies provided to SafeHealth
Subscribers by Participating Vision 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 Vision Providers pertaining to SafeHealth
Subscribers.
(b) HNL shall promptly forward to SafeHealth any claims for fees
received by HNL from Participating Vision Providers pertaining to SafeHealth
Subscribers and payable by SafeHealth, unless SafeHealth has made alternate
arrangements in advance with a Participating Vision Provider to submit claims
directly to SafeHealth for payment. SafeHealth shall pay the claims for fees of
Participating Vision Providers for vision services or vision supplies provided
to SafeHealth Subscribers as soon as practical, but subject to the following
minimum standard:
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95% of the monthly volume of clean claims shall be paid or denied within thirty
(30) calendar 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 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 re-credential the
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Participating Vision Providers at least every thirty-six (36) months utilizing
the credentialing standards of the National Committee of Quality Assurance
Standards for Accreditation of Managed Care Organizations ("NCQA Credentialing
Standards"). If a Participating Vision Provider fails to meet the NCQA
Credentialing Standards, upon the request of SafeHealth, HNL shall terminate the
Contract of such Participating Vision Provider in accordance with its terms.
SafeHealth shall require the Participating Vision 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 Vision Providers.
Section 3.5 Quality of Service. SafeHealth shall monitor the quality
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of Covered Services provided by the Participating Vision 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 Vision 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 Vision
Provider corrects the specified deficiency, or (ii) direct HNL to terminate the
Contract of such Participating Vision Provider in accordance with its Terms.
HNL shall cooperate with SafeHealth and use reasonable efforts to obtain the
cooperation of Participating Vision 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 Vision 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 Vision Providers pursuant to Section 3.01. SafeHealth
shall not otherwise use the names, symbols, trademarks or service marks of
Participating Vision Providers without the prior written consent of HNL and the
Participating Vision Providers.
Section 3.7 Subscriber Services. SafeHealth shall perform all duties
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relating to SafeHealth Subscriber services, grievances, appeals and coordination
of care under the SafeHealth Subscriber Agreements.
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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.
Section 3.9 Cooperation with Strategic Vision Partner. SafeHealth
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acknowledges and agrees that Health Net, Inc. intends to enter into a strategic
relationship with another party (the "Strategic Vision Partner") to sell Health
Net private labeled vision products in California, Arizona and Oregon and that
as part of such relationship, Health Net will assist the Vision Strategic
Partner to obtain contracts with certain Vision Providers in California.
SafeHealth shall provide reasonable assistance and information necessary for the
Strategic Vision Partner to obtain contracts with the Vision Providers in
California selected by the Strategic Vision Partner.
ARTICLE IV
TERM AND TERMINATION
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) calendar days
written notice of its intention to terminate upon the occurrence of any of the
following:
Section 4.4 If a party fails to remit any amounts due under this
Agreement within ninety (90) calendar days of the date such amount is due and
payable.
(a) If a party breaches a material term, covenant or condition of this
Agreement and fails to cure such breach within thirty (30) calendar 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) calendar
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.
(b) 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.
(c) 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
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any Governmental Authority, the other party shall have the right to terminate
this Agreement immediately.
(d) 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 4.5 Post-Termination Rights and Responsibilities. Termination
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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
vision providers other than the Vision Providers in a manner consistent with the
SafeHealth Subscribers' need for continuity of vision services and vision
supplies.
ARTICLE V
RELATIONSHIP OF THE PARTIES
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Section 5.1 Relationship of Parties. The parties to this Agreement are
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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 Vision Providers. SafeHealth acknowledges that all
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Participating Vision 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 optometry by any Participating Vision Provider.
ARTICLE VI
PROTECTION OF CONFIDENTIAL INFORMATION
Section 6.1 License to Use HNL Materials. HNL may from time to time
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provide to SafeHealth certain materials, brochures, reporting forms, and other
related material, whether in a printed or electronic format, pertaining to the
Participating Vision 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 Vision 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.
XxxxXxxxxx agrees that all such documents and materials
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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 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
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 vision HMO or vision indemnity insurance business. If a JAMS arbitrator
with specific experience in the vision HMO or vision indemnity insurance
business is not available, the arbitrator must have general experience in the
health insurance industry. Within ten (10) calendar 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) calendar days after the appointment of the
arbitrator. The other party hereto shall then have twenty (20) calendar 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) calendar days to render his or her decision.
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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.
ARTICLE VIII
ALLOCATION OF LIABILITY & INDEMNIFICATION
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
Vision 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 Vision Provider or any other person
for any vision services or vision 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 Vision 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,
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without limitation, Losses arising out of SafeHealth's performance or
non-performance of the obligations under the Contracts with Participating Vision
Providers in accordance with Section 3.02 of this Agreement.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Compliance with Laws. Each party shall, in the performance
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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 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 or
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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
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Xxxxx X. Xxxxxxxxx
Xxxxxxxxxxx and Price, LLP
000 Xxxx Xxxxxx, Xxx 0000
Xxxxxx, Xxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
(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 Agreement
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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 in
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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.
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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 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,
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to do 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
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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.
Section 9.12 No Third Party Rights. This Agreement has been made for
----------------------
the 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
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referred to in this Agreement are incorporated herein by this reference.
Section 9.14 Force Majeure. Neither party- hereto shall be liable for
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any 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.
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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.
Section 9.17 Integration. This Agreement and all Exhibits and
-----------
Schedules 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 Vision 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/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxx Xxxx
Title: President
SAFEHEALTH LIFE INSURANCE COMPANY
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
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