A. PHARMACY is a pharmacy that produces, sells, and/or distributes pharmaceutical products (collectively the “PHARMACY Products”); and
B. ATRIUM24 is in the business of consulting regarding the products, pharmacy compliance, and operation of pharmacies; and
C. PHARMACY desires to engage ATRIUM24 in the scope of ATRIUM24’s business; and
D. ATRIUM24 desires to accept such engagement which shall be subject to the terms and conditions of this Agreement; and
E. The parties desire to enter into this Agreement in order to provide a full statement of their respective agreements in connection with PHARMACY’s engagement of ATRIUM24.
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, the parties hereto agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated herein by reference.
2. Term and Termination.
a. This Agreement shall expire one (1) year from the Effective Date. Notwithstanding the forgoing, PHARMACY or ATRIUM24 may terminate this Agreement by written notice to the other Party upon the occurrence of any of the following events:
(1) If PHARMACY shall fail to pay any amount due under the Agreement within fifteen (15) days after such amount becomes due and payable then ATRIUM24 alone shall have the right to terminate this Agreement; the Terms of Section 4 of this Agreement shall apply in this case.
(2) Upon the filing or institution of any bankruptcy, reorganization, liquidation or receivership proceedings by either Party with the provision that if PHARMACY terminates as a result of bankruptcy it is still obligated to pay ATRIUM24 the monies that would be owed for the duration of this Agreement.
b. This Agreement shall automatically renew unless either Party provides the other party with written notice at least ninety (90) days prior to the expiration of this Agreement.
3. ATRIUM24 Services. PHARMACY hereby engages ATRIUM24 to perform the services described in the attached Addendum A (hereinafter collectively “ATRIUM24 Services”).
4. Compensation. PHARMACY will compensate ATRIUM24 for all ATRIUM24 Services as described in the attached Addendum A due and payable as described in the attached Addendum A. PHARMACY shall maintain a method of payment via ACH or credit card on file with ATRIUM24. Credit Card will be charged a 3% processing fee. PHARMACY’s stored method of payment shall be charged on the same day each month, starting at contract commencement, then monthly thereafter. ATRIUM24 will send PHARMACY a statement evidencing the payment or shall send the PHARMACY an invoice if an amount remains outstanding. Should PHARMACY fail to pay ATRIUM24 within 15 days of issuance of the invoice, ATRIUM24 may suspend all services to PHARMACY and deny PHARMACY access to services.
5. Assignment of Duties. ATRIUM24 may employ or contract with other companies, whether an individual or an entity, to provide the ATRIUM24 Services as required under this Agreement. ATRIUM24 agrees that any entity that is assigned the ATRIUM24 Services shall at all times be subject to the obligations and restrictions set forth in this Agreement. ATRIUM24 may in its sole discretion employ or contract with other individuals to provide the ATRIUM24 Services. If ATRIUM24 elects to contract with another entity in the performance of the ATRIUM24 Services, the compensation of that entity shall be the sole responsibility of ATRIUM24 unless otherwise set forth herein or agreed by the Parties by subsequent written agreement. PHARMACY may not assign its role in the Agreement without the express written consent of ATRIUM24.
6. Relationship of the Parties. It is agreed that ATRIUM24’s relationship with PHARMACY is that of an independent service provider, and no employment relationship is intended nor created by this Agreement. ATRIUM24 shall have the right to control and determine the method and means of providing the ATRIUM24 Services pursuant to this Agreement. Furthermore, it is acknowledged and agreed that PHARMACY is not and shall not be obligated to make any periodic filings, withholdings or payments with respect to any compensation paid to ATRIUM24 under this Agreement, including without limitation, any income tax withholdings, FICA taxes, unemployment taxes, and any other federal, state or local taxes, payments or filings. ATRIUM24 shall not be entitled to participate in the insurance plans or other benefits of any kind to which employees of PHARMACY may be entitled, if any, including without limitation, disability or unemployment insurance, worker’s compensation, medical insurance, sick leave, or any other employment benefit.
7. Return of Property. All of ATRIUM24’s Confidential Business Information, including but not limited to prospect lists, product lists, formulary data, correspondence, electronic communications, internal memoranda, financial, billing and accounting information, sales contracts, supplier agreements, personnel data, vendor information, distributor information, referral data, marketing and sales materials, ATRIUM24 Products and samples, office keys, equipment, digital devices, and all other like items, information or documentation, including all copies, duplications, replications, and derivatives thereof (collectively, “ATRIUM24 Property”), that are now in PHARMACY’s possession, or which may be acquired at any time during PHARMACY’s engagement with ATRIUM24, are the exclusive property of ATRIUM24. PHARMACY shall return all such items to ATRIUM24 no later than fifteen (15) days after the termination of this Agreement. ATRIUM24 may also bring a civil action against PHARMACY to specifically enforce this Paragraph and/or to recover any damages resulting from any such breach.
Likewise all of PHARMACY’s Confidential Business Information, customer files, customer lists, prospect lists, correspondence, electronic communications, internal memoranda, financial, billing and accounting information, sales contracts, supplier agreements, personnel data, vendor information, distributor information, referral data, marketing and sales materials, PHARMACY Products and samples, office keys, equipment, digital devices, and all other like items, information or documentation, including all copies, duplications, replications, and derivatives thereof (collectively, “PHARMACY Property”), that are now in ATRIUM24’s possession, or which may be acquired at any time during the engagement with PHARMACY, are the exclusive property of PHARMACY. ATRIUM24 shall return all such items to PHARMACY no later than fifteen (15) days after the termination of this Agreement. PHARMACY may also bring a civil action against ATRIUM24 to specifically enforce this Paragraph and/or to recover any damages resulting from any such breach.
8. Compliance with Law and Regulations. The Parties agree that this Agreement is intended to comply with all applicable state and federal laws, rules, and regulations (collectively, "Laws"). The Parties agree that this Agreement is an arms-length transaction for fair market value. The Parties further agree that the benefits to each other under this Agreement do not require, are not payment for, and are not in any way contingent upon, the referral, admission, or any other arrangement for the provision of any item or service offered by either Party or its affiliates.
Each party represents and warrants that it will comply with all applicable laws and implementing regulations regarding privacy and confidentiality, general privacy and security requirements, and communication methods including, but not limited to, HIPAA and HITECH (collectively “HIPAA”) and applicable state laws.
Each party specifically attests that it will not violate any provisions of any state or federal anti- kickback laws, or self-referral laws including, but not limited to, inducing any provider or medical professional with the ability to create business for PHARMACY with a promise, payment, or receipt of any financial remuneration, non-monetary enticement, or other valuable good or service.
If either Party reasonably believes that this Agreement violates any Laws, then it shall inform the other party and the parties shall negotiate in good faith to amend this Agreement. If the Agreement cannot be amended to eliminate the problematic provision, then either party may terminate this Agreement upon thirty (30) days written notice to the other.
9. Acknowledgments. PHARMACY hereby acknowledges that it has been provided with a copy of this Agreement for review prior to signing it, that it has been given the opportunity to review and consider this Agreement with an attorney or other advisor prior to signing it, that it has read and understands the purposes and effects of this Agreement, and that it has been given a copy of this Agreement for its own records.
10. Waiver. Any waiver of a breach, or threatened breach, of this Agreement by the Parties shall not be construed by either Party as a waiver of any subsequent breach by any such Party. Either Party’s refusal or failure to enforce any restrictive covenant or non-disclosure provision against any other employee, agent, or independent company of the other Party, for any reason, shall not constitute a waiver or defense to the enforcement of the restrictive covenants or other provisions of this Agreement.
11. Survival of Termination. The termination of ATRIUM24’s engagement with PHARMACY, whether initiated by ATRIUM24 or PHARMACY, shall not affect in any way either Party’s obligations under this Agreement, and the Parties acknowledge and agree that the obligations of this Agreement expressly survive termination, whether such termination is initiated by ATRIUM24 or PHARMACY. Any payment obligations, other than indemnification obligations, shall consist of charges accrued at the time of termination and must be paid.
12. Limitation of Liability. In no event shall ATRIUM24 be liable to PHARMACY for any indirect, special, or consequential damages and/or punitive damages or any loss of profits of any kind or nature under any circumstances or for any reason in connection with any claims or causes of action arising out of this Agreement. In no event shall ATRIUM24 be liable to PHARMACY for any amount greater than the sum of payments made by PHARMACY to ATRIUM24 under this Agreement. Furthermore, the Parties agree that only PHARMACY, and not ATRIUM24, shall be liable and wholly responsible to any governmental agency and/or third party for Products dispensed or distributed by PHARMACY.
13. Indemnification. PHARMACY agrees to indemnify and hold ATRIUM24 and ATRIUM24’S respective directors, officers, managers, employees, ATRIUM24-controlled affiliates, and agents harmless against any and all claims including, but not limited to, all damages and costs or expenses of any nature whatsoever, including, but not limited to, attorneys’ fees and other legal expenses related to the sale, distribution, or use of the PHARMACY Products or services, whether or not any such claims are the subject of any litigation or other such proceeding. ATRIUM24 and ATRIUM24’S respective directors, officers, managers, employees, ATRIUM24-controlled affiliates, and agents shall not be liable for any disputes with third parties arising out of any action taken by PHARMACY, including, but not limited to, any rejections or charge- backs that result from a claim for breach of contract or other such claim being filed by a third party.
14. Confidentiality. The Parties acknowledge that they, their officers, employees, agents, consultants, advisors, representatives and Affiliates, including attorneys, accountants and financial advisors (collectively, "Agents") may be provided with certain information with respect to the other Party, including certain information that is either non-public, confidential or proprietary in nature, including, but not limited to: trade secrets, formulas, formularies, financial information, sales or profits amounts, internal reports or private communications, business know-how, internal business strategies, internal marketing strategies, research materials, marketing materials, employee names, or names of affiliates, advisors, consultants, customers, or clients. "Affiliate" means, with respect to any specified Person, any Person directly or indirectly controlling, controlled by, or under common control with such specified Person. The term "Proprietary Information" does not include information that (a) is or becomes generally available to the public as a result of disclosure by the providing party or its Agents, (b) was available on a non-confidential basis prior to its disclosure to the receiving party and its Agents, or (c) becomes available to the receiving party and its Agents on a non- confidential basis from a source other than the providing party or its Agents, provided that such source is not known by the receiving party to be bound by a confidentiality agreement with the providing party or the providing party's Agents, or (d) is independently developed by the receiving party or its Agents. The Parties agree that they and their Agents shall not use the Proprietary Information in any way detrimental to the providing party, and that such party and its Agents shall keep the Proprietary Information confidential during the term of the Agreement and for a period of one year (1) after termination. Without the prior written consent of the other party, neither party shall disclose to any other Person any Proprietary Information, unless such disclosure is required to be made under any applicable law or regulation.
15. Multiple Pharmacies. To the extent PHARMACY owns multiple pharmacies, whether by direct ownership or indirect ownership, PHARMACY is prohibited from disclosing any Proprietary Information to any pharmacy not listed in Addendum A without the express written consent of ATRIUM24.
16. Attorneys’ Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the substantially prevailing party shall be entitled to an award of reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to which the party may be entitled.
17. Notices. Unless otherwise provided herein, any notice, request, instruction or other documents to be given hereunder by either Party to the other shall be in writing and delivered via certified mail, postage prepaid, return receipt requested, with notice to the respective addresses of the parties as listed below or to such other place and with such other copies as either party may designate by written notice to the other. Such notice, request, instruction or other documents shall be deemed to have been duly given on the date upon which return receipt is acknowledged.
34650 US Highway 19 North
Palm Harbor, FL 34684
As detailed on Customer Agreement
18. Non-Circumvent. The Parties agree to not circumvent this Agreement in any way that would cause harm, financial or otherwise, to the other party.
19. Intent to Harm. The Parties agree that they will not engage in any activity or business practice with the intent to harm or deprive any sums of money rightly due to the other Party.
20. Fair Market Value. The parties acknowledge and agree that the compensation set forth in this Agreement is, and shall be, the fair market value of the Services, and is not dependent on the volume or value of any referrals, purchases or business otherwise generated between ATRIUM24 and PHARMACY or any of their respective affiliates and shall not obligate ATRIUM24 or any other person to purchase, use, recommend or arrange for the use of PHARMACY’s products or services or those of any organization affiliated with PHARMACY.
21. Force Majeure. The Parties’ performance under this Agreement will be excused or may be delayed or modified without liability in the event performance is made illegal or impossible due to strikes, labor disputes, riots, accidents, natural disasters, governmental control, regulation, or other action or cause or circumstance beyond the reasonable control of either party.
a. This Agreement constitutes and contains the entire agreement and understanding concerning the subject matters addressed herein between the Parties and supersedes and replaces all prior negotiations between the Parties, whether written or oral, concerning the subject matters hereof. This is an integrated document.
b. All Parties to this Agreement agree that this Agreement shall be governed and interpreted in accordance with the laws of the State of Florida, without regard of conflict of laws, unless expressly preempted by United States statutes or United States Regulations.
c. Except as otherwise provided herein, in case any one or more of the provisions contained in this Agreement shall for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision.
d. Any differences between the Parties as to their rights or obligations under this Agreement that are not settled by mutual agreement after thorough discussion shall be submitted for mediation in Pinellas County, Florida. If mediation is not successful, the parties hereto agree that any action to enforce this Agreement must be brought in a court of competent jurisdiction in Pinellas County, Florida.
e. This Agreement may be enforced by ATRIUM24, its successors, assigns or affiliates, without the consent of PHARMACY. Since the obligations of PHARMACY under this Agreement are not assignable, PHARMACY may not assign or transfer its rights to enforce this Agreement.
f. This Agreement may be executed in several counterparts, including by electronic signature, each of which shall be construed as an original Agreement, and all so executed will together constitute one Agreement, binding on all the parties hereto, notwithstanding that all the parties may not be signatories to the same counterpart.
g. The headings and captions of the paragraphs contained in this Agreement are provided for convenience of reference only, and they shall not affect the construction or interpretation of any of its provisions.