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MARKETING AGREEMENT FOR INDEPENDENT LIVING COMMUNITIES, ASSISTED LIVING COMMUNITIES AND RESIDENTIAL CARE COMMUNITIES

THIS MARKETING AGREEMENT (the “Agreement”) is entered into by and between Always Best Care Senior Services and/or its subsidiaries and franchisees (“ABC”), and the owner and/or manager and its affiliates (hereinafter the “Provider”) as owner/manager for the communities (“Communities,” or in the singular, a “Community”) specified. ABC and the Provider may be individually referred to in this Agreement as a “Party” and collectively as the “Parties”).

BACKGROUND

ABC provides marketing services to parties that own and/or manage independent living communities, assisted living communities and residential care communities

Provider wishes to engage ABC to provide marketing services for the Communities managed by Provider.

AGREEMENT

The parties agree as follows:

  • Marketing and Placement Services. The Provider hereby engages ABC to provide marketing of the locations and services of the Communities through various means, which may include some or all of the following in ABC’s discretion:

    1.1 Market each of the Community’s services and locations using literature and other marketing materials provided by each Provider and Community;

    1.2 Market and advertise each of the Community’s services and locations through various methods, including websites, yellow page ads, public relations, web affiliations, advertisement in applicable magazines, and other advertising;

    1.3 Promoting awareness of the Community’s services to local professionals and other parties who may have clients with a need for the Communities’ services;

    1.4 Arrange for potential residents to visit the Community for purposes of touring the Community;

    1.5 Educating, on behalf of the Communities, potential residents about the Community; and

    1.6 Screen potential residents for clinical, financial, and geographical needs and preferences to determine which Communities can meet the potential resident’s needs and preferences.

    1.7 In the event a referred resident or their family inquires about the services of a private duty aide, Provider will immediately notify ABC by e-mail or fax. Provider will allow a referred resident or their family to contract directly with ABC to provide contracted services within the Community (optional).

  • Provider and ABC Requirements. As part of their arrangement, Provider and ABC shall agree to the following:

    2.1 ABC shall not be authorized to execute on behalf of the Provider or any Community any lease or other agreement with a resident or potential resident of any Community;

    2.2 In all communications with third parties, including potential residents, ABC, Provider and Community employees, agents or representatives will clearly indicate that ABC represents the Provider and Community and not the potential residents;

    2.3 In all communications with third parties, including potential residents, ABC, Provider and Community employees, agents or representatives will clearly indicate that ABC receives a fee from Provider or Community for the services it provides; and

    2.4 Provider shall ensure that all marketing and materials that describe its Communities is accurate in all material respects.

  • Provider / Community Requirements: The Provider represents and warrants that each Community is appropriately licensed by the state in which it is located and agrees to inform ABC, in writing, within two (2) business days of all licensing changes. ABC does not exclude as a participant from its marketing activities any individual or entity who meets the qualifications for participation. ABC places no requirement on the manner in which Provider provides services to residents placed by ABC. Provider agrees that clients placed by ABC will be charged at the same rate or less than all other individuals who move in and no portion of ABC fees will be charged to the resident.
  • Term and Termination.

    4.1 Term. The initial term of this Agreement will begin on the date hereof and will continue for a period of one (1) year, unless earlier terminated in accordance with the terms of this Agreement. Thereafter, this Agreement shall automatically renew for successive periods of one (1) year each, in accordance with the terms hereof.

    4.2 Termination. Either Party may terminate this Agreement upon thirty (30) days written notice of termination to the other party provided however, that ABC may terminate this Agreement at any time for nonpayment of fees.

    4.3 Effect of Termination. Following termination, this Agreement shall remain in full force and effect as it applies to any resident placements which are either in process prior to the thirty (30) day notice period or arise during the thirty (30) day notice period and fees shall be due for all such resident placement, whenever residency begins, even if residency begins after the contract is terminated.

  • Compensation. In consideration of the services provided by ABC under this Agreement, Provider shall pay ABC or its designees compensation equal to 50% of the first month’s rent and 50% of the second month’s rent, payable to Provider by a resident generated by ABC. Such compensation shall be paid within three (3) days of receipt of a rental payment by resident (the "Due Date"). Any payment of compensation due under this Agreement by the Due Date shall be subject to a late payment fee of $50 plus interest at the rate of 1/2% per month, which interest shall accrue until all compensation due hereunder is paid.
  • Previously Acquired Referrals: If Provider or Community has been contacted by a prospective resident or their family prior to the date that ABC contacted the Community about the prospective resident (the “ABC Contact Date”), Community has two options: 1) Community may choose to continue to work with ABC and subsequently pay the full fee described in Section (default option); or 2) Community may verify the prior contact in writing via email or fax, by providing a copy of the original inquiry information, including the original date of the prior contact and name of contact source. Where verifiable documentation of the prior referral is provided to ABC no placement fee will be due. This documentation must be received by an ABC Representative within five (5) business days of ABC Contact Date.
  • Federal Healthcare Program Residents: The intent and operational practice at ABC is to ensure that no federally funded residents are referred to any Community. Provider understands that ABC will not attempt to place any potential resident whose source of payment, to ABC’s knowledge, is in whole or in part, provided by state or federal funding sources such as Medicare or Medicaid; and, Provider and its Communities agree that it will not accept any referral of such potential residents from ABC. Provider represents and warrants that Communities listed in Schedule A are not providing federally funded services at the time of the signing of this contract and should any community decide to license themselves as a nursing home, which is compensated by government programs in the future, this agreement is automatically null and void.
  • Nonexclusive Services – Community Responsibility: ABC role is to use its reasonable efforts to market the Provider and its Communities to potential residents. ABC makes no guaranties as to whether its marketing efforts will be successful. Provider understands that its services are not exclusive to Provider and its Communities and that ABC may also provide similar services to other provider and communities. ABC shall provide names and placement assistance to potential residents based solely on that person’s stated needs and preferences and ABC is merely serving as a reference and information source only. It is the sole responsibility of the Provider and Community and the potential resident, and/or the potential resident’s family and/or other involved parties to determine if any person is an appropriate admission to the Community. This information will be communicated to all potential residents through a notice on the website and in written communications with potential residents.
  • Non-discrimination: The parties agree that there shall be no discrimination in the performance of this Agreement against any employee, resident, or other person as the result of that individual's race, color, disability, religion, sex, sexual preference, age or national origin or in violation of applicable federal, state or local law and regulation.
  • Confidentiality of Records: The parties shall (a) comply with all applicable state and federal laws respecting the confidentiality of proprietary information, data and other confidential or personal information concerning the medical, personal, or business affairs of the parties acquired hereunder or in connection herewith; (b) keep confidential all financial, operating, proprietary or business information relating to the parties that is not otherwise public information; and (c) keep confidential any information, not described above, specified in writing by either party as confidential information. For purposes of the foregoing, information shall not be considered confidential information if such information’s disclosure is compelled by court order, by applicable law or if such information was obtained from an unrelated third party not itself subject to a confidentiality requirement with respect to such information.
  • Assumption of Liability and Indemnification. Provider assumes and claims all responsibility and liability for the content of all marketing and other material and literature produced and displayed with respect to the Community and provided to ABC and the truthfulness of all representations made in the marketing materials and to ABC. The Provider shall indemnify and hold ABC harmless from and against all demands, claims or liability arising for any reason due to information provided to ABC by the Provider and its representatives. This indemnity shall include any damages and cost incurred by ABC including, but not limited to, legal fees and expenses incurred at all levels of trial and appeal. In no event shall ABC be liable for any general, special or consequential damages.
  • Miscellaneous.

    12.1 Entire Agreement/Modification. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements or oral representations by either party related thereto. This Agreement shall not be changed, modified or amended in any respect except by a written instrument signed by the parties hereto.

    12.2 Binding Provisions. This Agreement is binding upon, and inures to the benefit of, the Parties hereto and their respective heirs, executors, administrators, personal and legal representatives, successors and permitted assigns.

    12.3 Severability. Each provision of this Agreement shall be construed as severable; and if, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement that are valid. Nothing contained in this Agreement shall be construed so as to require the commission of any acts contrary to law, and whenever there is a conflict between any provision of this Agreement and any present or future law or regulation, such provision shall be modified only to the extent necessary to make it comply with such law or regulation.

    12.4 Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement shall be deemed a waiver by such Party of any provision of this Agreement nor shall any single or partial exercise by either Party of any right or remedy under this Agreement preclude such Party from otherwise or further exercising rights or remedies granted under this Agreement or by law. A waiver of any breach or violation of any term, provision or covenant contained in this Agreement shall not be deemed a continuing waiver or a waiver of any future or past breach or violation or a waiver of any other term, provision or covenant of this Agreement.

    12.5 Governing Law and Venue. This Agreement shall be construed, interpreted and applied in accordance with the laws of the state in which the Community is located applicable to contracts entered into and wholly to be performed in that state, without regard to conflict of laws principles. The Parties hereto agree that any suit or action arising out of this Agreement may be brought only in the federal or state courts located in the state in which the Community is located.

    12.6 No Joint Venture or Partnership. The parties to this agreement are independent contractors and the provisions of this Agreement are not intended to create, and none shall be deemed to create, any relationship between ABC on the one hand, and the Provider on the other. Similarly, this Agreement shall not be deemed to create or be a joint venture or partnership between ABC and Provider.

    12.7 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party.

    12.8 Headings. The section headings used in this Agreement are included solely for convenience and shall not affect or be used in connection with the interpretation of this Agreement.

    12.9 Counterparts. This Agreement may be executed in any number of counterparts, all of which together shall constitute one and the same instrument.

V2.11-2012