each of which will be an original, and which together will
constitute one instrument.
13.10
Relationship of Parties.
Each party enters into and performs this Agreement as
an independent contractor of the other party.
This Agreement will not be
construed as constituting a relationship of employment agency, partnership,
joint venture or any other form of legal association, except as expressly set
forth in this Agreement.
Each party will have no power, and will not represent
that it has any power, to bind the other party or to assume or to create any
obligation or responsibility on behalf of the other party or in the other
party's name.
13.11
Antikickback Compliance.
IT IS THE INTENT OF THE PARTIES TO ESTABLISH A
BUSINESS RELATIONSHIP WHICH COMPLIES WITH THE MEDICARE AND MEDICAID
ANTI-KICKBACK STATUTE AS SET FORTH AT 42 U.S.C. §1320a-7b(b).
IN ACCORDANCE
WITH 42 C.F.R.§ 1001.952(h), MHS (AS SELLER) WILL (A) FULLY AND ACCURATELY
REPORT ANY DISCOUNT ON INVOICES, STATEMENTS, OR REPORTS SUBMITTED TO OMNICARE OR
OMNICARE FACILITIES, OR (B) WHERE THE VALUE OF A DISCOUNT IS NOT KNOWN AT THE
TIME OF A SALE, FULLY AND ACCURATELY REPORT THE EXISTENCE OF A DISCOUNT PROGRAM
ON THE INVOICE, STATEMENT, OR REPORTS SUBMITTED TO OMNICARE OR OMNICARE
FACILITIES AND, WHEN THE VALUE OF THE DISCOUNT BECOMES KNOWN, PROVIDE OMNICARE
AND OMNICARE FACILITIES WITH DOCUMENTATION OF THE CALCULATION IDENTIFYING THE
SPECIFIC GOODS OR SERVICES PURCHASED TO WHICH THE DISCOUNT WILL BE APPLIED TO
OMNICARE AS BUYER.
WHERE A DISCOUNT OR OTHER REDUCTION IN PRICE IS APPLICABLE,
THE PARTIES ALSO INTEND TO COMPLY WITH THE REQUIREMENTS OF 42 U.S.C.
§1320a-7b(b)(3)(A) AND THE "SAFE HARBOR" REGULATIONS REGARDING DISCOUNTS OR
OTHER REDUCTIONS IN PRICE SET FORTH AT 42 C.F.R. §1001.952(h).
IN THIS REGARD,
THE PARTIES ACKNOWLEDGE THAT MHS WILL SATISFY ANY AND ALL REQUIREMENTS IMPOSED
ON SELLERS BY THE SAFE HARBOR AND OMNICARE AND/OR OMNICARE FACILITIES WILL
SATISFY ANY AND ALL REQUIREMENTS IMPOSED ON BUYERS.
THUS, OMNICARE
AND/OR
OMNICARE FACILITIES WILL ACCURATELY REPORT ON THE APPLICABLE COST REPORT, UNDER
ANY STATE OR FEDERAL PROGRAM WHICH PROVIDES COST BASED REIMBURSEMENT TO OMNICARE
FOR THE PRODUCTS AND SERVICES COVERED BY THIS AGREEMENT, THE NET COST ACTUALLY
PAID BY AN OMNICARE FACILITY, AND FOR ANY FEDERAL HEALTH CARE PROGRAM WHICH
PROVIDES CHARGE-BASED REIMBURSEMENT TO OMNICARE FACILITIES OMNICARE AGREES TO
MAKE AVAILABLE, UPON REQUEST BY THE SECRETARY OF THE U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES OR A STATE AGENCY, INFORMATION PROVIDED TO OMNICARE BY
MCKESSON CONCERNING DISCOUNTS PROVIDED PURSUANT TO THIS AGREEMENT.
MCKESSON HAS
INFORMED OMNICARE OF OMNICARE'S FEDERAL STATUTORY AND REGULATORY REPORTING
OBLIGATIONS.
IN THE EVENT EITHER PARTY DETERMINES THAT THIS DISCOUNT PROGRAM
MAY NOT COMPLY WITH SUCH STATUTES, THE PARTIES AGREE TO WORK TOGETHER TO
ESTABLISH A DISCOUNT STRUCTURE THAT MEETS THE REQUIREMENTS OF SUCH STATUTES.
TO
THE EXTENT ANY APPLICABLE LAW, REGULATION, OR GOVERNMENTAL OR JUDICIAL ORDER
REQUIRES DISCLOSURE TO ANY GOVERNMENTAL AGENCY OF ANY INFORMATION REGARDING
MHS'S SALE OF PRODUCTS TO OMNICARE UNDER THIS AGREEMENT MHS WILL USE REASONABLE
BEST EFFORTS TO PROVIDE OMNICARE PRIOR NOTICE