EXHIBIT 10.2
LGL.122
9-12-96
SERVICES AGREEMENT
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This agreement ("Agreement"), made and entered into as of the fifth day of
December, 1996, by and between VHA Inc., a Delaware corporation ("VHA"), and
Transcend Services, Inc., a Delaware corporation ("Vendor"),
PRELIMINARY STATEMENTS:
A. VHA is, among other things, in the business of providing purchasing
opportunities with respect to high quality products and services to certain
health care providers who have appointed VHA as their agent ("VHA Members and
Affiliates") or have appointed HealthCare Purchasing Partners, Inc., as their
agent ("HPPI Members"), a current list of which has been provided to Vendor by
VHA;
B. Vendor is, among other things, the provider of the services listed on
Exhibit A ("Services"); and
C. Vendor and VHA desire to make the Services available for purchase by
VHA Members and Affiliates and HPPI Members from Vendor pursuant to this
Agreement;
In consideration of the premises, the representations and warranties of the
parties, and other good and valuable consideration, the adequacy, receipt and
sufficiency of which are acknowledged, the parties agree, subject to the
conditions, terms and provisions of this Agreement, as follows:
Section 1. Offer, Sale and Prices. During the term and for the duration
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of this Agreement, Vendor agrees to offer to sell and to sell the Services to
VHA Members and Affiliates or HPPI Members within the terms provided on Exhibit
A.
Vendor shall not offer to VHA Members and Affiliates or HPPI Members other
services and/or products in conjunction with the Services covered by this
Agreement under terms and conditions such that VHA Members and Affiliates or
HPPI Members have no real economic choice except to purchase Services with such
other services and/or products on a bundled basis, without the prior written
notice to VHA.
Section 2. Prompt Performance. Vendor agrees to promptly perform Services
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ordered under this Agreement by the VHA Members and Affiliates or HPPI Members
in accordance with any schedule agreed to between Vendor and the VHA Member or
Affiliate or HPPI Member.
Section 3. Billing by and Payment to Vendor. Vendor agrees to direct its
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invoices for Services ordered under this Agreement to the VHA Members and
Affiliates or HPPI Members. Payment terms shall be no less favorable than net
by first of the month services are to be provided, with one and one-half
percent, or maximum allowable rate whichever is less, penalty after the tenth of
the month; however, Vendor and any VHA Member and Affiliate or HPPI Member may
mutually agree to other payment terms.
Section 4. Term and Duration. Subject to the termination provisions
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contained in Section 5, this Agreement shall remain in full force and effect
from December 1, 1996, through Dec ember 1, 1999.
Section 5. Termination. Notwithstanding anything to the contrary
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contained in this Agreement, this Agreement may be terminated by either party
at any time, at will, and without cause or further liability upon not less than
ninety (90) days prior written notice to the other party.
Section 6. Business Review Meeting. The parties agree to meet, at the
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request of either party, no less frequently than once in any ninety (90) day
period during the term of this Agreement to discuss the progress and performance
of this Agreement.
Section 7. Favored Customer Pricing. Notwithstanding anything to the
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contrary contained in this Agreement, the price for each Service under this
Agreement will be no worse than the lowest price charged by Vendor during the
term of this Agreement for such Service or any service which is substantially
similar to such Service.
Section 8. Compliance with Laws. Vendor represents, warrants and
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guarantees that all Services performed under this Agreement are, as of the date
of such performance, in compliance with all federal, state and local laws,
statutes, ordinances, rules, regulations and orders.
Section 9. Books and Records, Audit. Vendor agrees to keep, maintain and
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preserve complete, current and accurate books, records and accounts of the
transactions contemplated by this Agreement and such additional books, records
and accounts related to VHA Members and Affiliates and/or HPPI Members business
as are necessary to establish and verify Vendor's compliance under this
Agreement. All such books, records and accounts shall be available for
inspection and audit by VHA and its authorized representatives at any time
during the term of this Agreement and for two (2) years thereafter, but no more
frequently than twice in any consecutive twelve (12) month period and only
during reasonable business hours and upon reasonable notice. The exercise by
VHA of the right to inspect and audit books and records related to VHA Members
and Affiliates and/or HPPI Members business is without prejudice to any other or
additional rights or remedies of either party.
Section 10. Indemnity and Insurance. Vendor agrees to protect, defend,
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indemnify and to hold VHA, VHA Members and Affiliates and HPPI Members and their
respective subsidiaries, affiliates, directors, officers and employees
("Indemnitees") harmless from any loss, liability, damage, cost or expense
(including attorneys' fees and other expenses of litigation) because of (i)
personal/bodily injury, including death at any time resulting therefrom, or
damage to property, including loss of use thereof and downtime, caused by any
Service, act or omission by Vendor, or any of its employees, agents, or
subcontractors or (ii) any material misrepresentation, breach of warranty or
covenant or other breach or default by Vendor under this Agreement; provided,
however, that Vendor shall not be obligated under this Agreement to defend,
indemnify or hold harmless any Indemnitee from any such loss, liability, damage,
cost or expense which results solely from that Indemnitee's misconduct or
negligence. Without limiting the generality of the preceding sentence, Vendor
agrees to obtain and maintain, at its own expense, commercial general liability
insurance including blanket contractual liability coverage with minimum limits
of $2,000,000 per occurrence and $5,000,000 annual aggregate. Such insurance
shall include all Indemnitees as additional insureds. Within thirty (30) days
from the date of this Agreement, Vendor shall submit to VHA a certificate of
insurance attested by a duly authorized representative of the insurance carrier
or carriers, evidencing that the insurance required is in force and in effect
and that such insurance will not be canceled or materially changed without
giving VHA at least thirty (30) days prior written notice.
Furthermore, Vendor shall defend, indemnify and hold harmless Indemnitees
from and against any liability, damage, cost or expense arising out of any claim
of patent, trademark or copyright infringement made with respect to any Service.
VHA agrees to protect, defend, indemnify and to hold Transcend Services,
Inc. and its subsidiaries, affiliates, directors, officers and employees
(Indemnities") harmless from any loss, liability, damage, cost or expense
(including reasonable attorneys' fees and other reasonable expenses of
litigation) arising out of or resulting from any statements, claims,
representations or warranties made by VHA, its employees or agents, to and
reasonably relied upon by VHA Members and Affiliates and HPPI Members about
Transcend Services. The indemnification set forth in this Section is
conditioned upon: i) Indemnities providing VHA with prompt written notice of any
claim of indemnification hereunder; and ii) the Indemnities providing reasonable
assistance and cooperation to enable VHA to defend the action to claim
hereunder.
Section 11. Deletion. Notwithstanding anything to the contrary contained
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in this Agreement, VHA may delete any one or more of the Services from this
Agreement at any time, at will and without cause upon not less than sixty (60)
days prior written notice to Vendor.
Section 12. Independent Contractor. None of the provisions of this
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Agreement is intended to create, nor shall any provision in this Agreement be
deemed or construed to create, any relationship between Vendor and VHA other
than that of independent entities contracting with each other under this
Agreement solely for the purpose of effecting the provisions of this Agreement.
Neither of the parties, nor any of their employees, shall be construed to be the
agent, the employer or representative of the other.
Section 13. Health Care Provider Consideration. Vendor agrees to provide
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notice and give equal consideration to VHA Members and Affiliates for the
delivery of health care services to Vendor's employees and their dependents
directly or through Vendor's contracting mechanism or insurer. The final
decision for the delivery of health care services to Vendor employees remains
that of Vendor.
The parties have caused this Agreement to be executed and delivered by
their respective authorized representatives as stated at the beginning of this
Agreement.
VHA Inc.
("VHA")
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Executive Vice President
/s/ G. Xxxxx Xxxxxx ("Vendor")
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Transcend Services
By:
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Authorized Representative
