1Dental will provide healthcare or other products or services to Client’s employees and dependents who are eligible to receive such products or services (“Members”) on the terms and conditions provided herein; NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth in this Agreement, Client and 1Dental hereby agree as follows:
1. Obligations of 1Dental. 1Dental shall provide Client with the Benefits Plan described on Schedule 1. 1Dental shall be responsible for the costs for the production and distribution of marketing and membership materials for the Benefits Plan. 1Dental shall provide Members with membership materials for the Benefits Plan. Membership materials shall include an identification card identifying that such Member is a participant in the Benefits Plan in addition to a toll-free telephone number for use by Members for inquiries regarding the benefits associated with the Benefits Plan.
2. Obligations of Client. Client shall offer the Benefits Plan to employees either at no charge or at the charge described on Schedule 1. Client shall not use any materials describing the Benefits Plan without 1Dental’s prior written approval. If Members are responsible for paying for the Benefits Plan, Client shall collect Benefit Plan fees from the Members. Client shall provide 1Dental a monthly updated list of current Members showing such Members’ names, telephone numbers and mailing addresses. Client shall comply with all laws, rules and regulations
3. Fee. 1Dental shall invoice Client monthly. For each active Member, Client agrees to pay 1Dental the monthly fee set forth on Schedule 1. Client shall pay 1Dental all amounts due on a monthly basis within thirty (30) days following the end of each month. Client’s contact for billing purposes is set forth on Schedule 1.
4. Confidentiality.
(a) In performing its obligations pursuant to this Agreement, each party may have access to and receive disclosure from the other of certain proprietary and confidential information, including, but not limited to, financial records, technological developments, marketing strategies, Member lists, employee lists, and other information considered by the disclosing party to be confidential and proprietary (herein collectively referred to as “Confidential Information”). For purposes of this Section, the financial terms of this Agreement are Confidential Information of each party. Confidential Information does not include: (i) information learned from a third party entitled to disclose it and who is not in violation of a contractual, legal or fiduciary obligation to either party, (ii) information which is or becomes known publicly through no fault of either party or, (iii) information already known by either party prior to disclosure from the other party, as shown by the receiving party’s records.
(b) Each party shall receive Confidential Information in confidence, shall use it solely for the purpose of and as necessary to fulfill its obligations under this Agreement and shall not reveal it to any third party, other than a corporate affiliate, without the express written consent of the other party. Each party shall take appropriate measures to prevent its agents, employees and officers and directors from using or disclosing any Confidential Information, except as is expressly permitted under this Agreement.
(c) All documents supplied to one party (the “Disclosing Party”) to the other (the “Recipient Party”), if any, pursuant to the provisions of this Agreement, including all copies or reproductions thereof, shall be returned to the Disclosing Party at the Disclosing Party’s request. Both parties agree that none of the documents provided by a Disclosing Party will be reproduced except for the sole purpose of performing its analysis. Both parties agree that upon completion of its analysis, all copies of material containing Confidential Information will be returned to the Disclosing Party, except as otherwise agreed between both parties in writing.
(d) In the event that the Recipient Party or anyone to whom the Recipient Party transmits the Confidential Information becomes legally compelled to disclose the Confidential Information, the Recipient Party shall provide the Disclosing Party with prompt written notice thereof so that the Disclosing Party may seek a protective order or other appropriate remedy. The Recipient Party shall cooperate with the Disclosing Party in its efforts to obtain such remedies, but the Recipient Party shall not be required to undertake litigation or legal proceedings in its name. In the event that the Recipient Party is legally obligated to disclose any Confidential Information, the Recipient Party shall furnish only the portion of the Confidential Information that is legally required and will exercise its reasonable best efforts to assure that confidential treatment will be accorded the Confidential Information.
(e) The provisions of this Section shall survive termination of this Agreement.
5. Independent Relationship. No provision of this Agreement is intended to create nor shall be deemed or construed to create any relationship between Client and 1Dental other than that of independent entities contracting with each other hereunder solely for the purpose of effecting the provisions of this Agreement. The parties hereto are not and shall not be deemed for any purpose to be agents, joint venturers or partners. Neither party is authorized to act as agent for the other, to take any action or make any representation in the name of the other, or to represent that it has the power or authority to do so. Neither of the parties to this Agreement nor any of their respective officers, directors, or employees shall hold themselves out as the employee, partner, officer, director or agent of the other party and shall not be deemed or construed to be an employee, partner, officer, director or agent of the other party. Neither 1Dental nor Client is authorized to represent the other for any purpose whatsoever without the prior written agreement of that party.
6. Term (a) This Agreement shall be effective as of the day and year first written above and shall continue for an initial term of one (1) year (the “Initial Term”), unless sooner terminated pursuant to the terms stated below. Upon the expiration of the Initial Term, this Agreement shall automatically renew for subsequent periods of one (1) year each, unless a written notice to the contrary is provided by Client at least ninety (90) days prior to the expiration of the then existing term.
(b) 1Dental may terminate this Agreement without cause upon not less than sixty (60) days prior written notice to Client.
(c) Either party may terminate this Agreement upon thirty (30) days prior written notice to the other in the event of a material breach of this Agreement that remains uncured thirty (30) days after such notice. If either party repeats a material breach, the Agreement may be terminated immediately.
7. Advertising Reference; Tradenames. No advertising, promotional, or other materials using the name, address, telephone number, description, facilities and/or services of 1Dental or Client shall be released without either 1Dental or Client’s prior written consent, as applicable. Neither party hereto obtains by virtue of this Agreement any rights in nor shall it use any trademark, service mark, logo, or other proprietary designation or intellectual property of any type in which the other party or any of its affiliates has an ownership or licensee interest.
8. Limitation on Damages. Neither party nor any of its affiliates shall be liable to the other for any indirect, special, incidental or consequential damages, including, but not limited to, lost profits, arising out of or related to this Agreement, its performance hereunder or its breach, even if it is advised of the possibility of any such damages.
9. Notices. Any notice to be given pursuant to the terms of this Agreement shall be in writing and shall be deemed delivered upon personal delivery against written receipt or when mailed by certified mail with return receipt requested and postage prepaid to the receiving party at such party’s address set forth on the signature page of this Agreement, which address for notice may be changed by either party by written notice under this Agreement.
10. Miscellaneous. Except as otherwise provided in this Agreement, no amendment shall become effective unless and until it is reduced to writing and signed by 1Dental and Client. Neither party shall assign any of its rights or obligations under this Agreement without the prior written consent of the other party. This Agreement shall be governed in all respects by the laws of the State of Texas. The waiver by either party of any breach of any provision in this Agreement shall not be construed as a waiver of any subsequent breach. Further, failure to exercise any right hereunder shall not operate as a waiver of such right and all rights and remedies provided for herein are cumulative. This Agreement may be executed in separate identical counterparts, each of which when taken together shall constitute one and the same instrument.
