Self executing enforcement and two strikes exit

This provision precludes Employer from filing an action at law or in equity and from having any dispute covered by this Agreement heard by a judge or jury.

Recorded reference: Page 11

Published rationale. There is no self executing remedy anywhere in the text. No liquidated damages or automatic credits attach to missed guarantees or late reports, and the only automatic financial penalties run against the Employer: a daily late charge equal to twelve percent per annum on page 24 and suspension of claim payments on page 23. Enforcement by the Employer requires written notice and a ninety day cure period under Section 4.9 on page 10, then informal negotiation and confidential binding arbitration under Section 4.11 on pages 10 and 11, which precludes any court action or jury and caps liability under Section 4.10 at the benefits that should have been paid. Termination for material breach under Section 6.1(c) on page 11 is available only after the cure period, and no two strikes or regulatory integrity exit exists. The model makes remedies automatic and gives a defined exit after a repeat failure; this text forces the plan to arbitrate, so bad.

applicable network discount and/or minimum Rebate guarantees set forth in the BPA Addendum will not be effective for such Guarantee Period.

Recorded reference: Page 46

Published rationale. On Page 46, Section 9.f provides that if the Employer terminates Exhibit 7 prior to the end of a Guarantee Period, the network discount and minimum rebate guarantees become void for that period. Rather than providing self executing remedies, automatic liquidated damages, or a two strikes termination right for repeated operational failures, the contract penalizes the sponsor for early termination and subjects disputes to a 90 day cure period under Section 4.9 and confidential arbitration under Section 4.11.

to allow the notified Party ninety (90) days in which to make necessary adjustments or corrections to satisfy the complaint or concern prior to taking any further action

Recorded reference: Page 10

Published rationale. Page 10 imposes complaint notice and a lengthy adjustment opportunity before further action in the general case, followed by negotiation and confidential arbitration on pages 10 and 11. Page 11 permits termination for material breach only after notice and the cure period, and page 46 has a similar route for noncompliance with the pharmacy exhibit. There is no automatic credit or liquidated damages for a late report, no repeated-breach two-strikes termination right, and no specified regulatory integrity exit in the visible text. The missing addendum may contain performance guarantee reconciliation terms, but this draft's express general enforcement and exit architecture does not self-execute upon recurring material failure. The verdict addresses that visible adverse architecture, not an invented addendum remedy.

allow the notified Party ninety (90) days in which to make necessary adjustments or corrections to satisfy the complaint or concern prior to taking any further action

Recorded reference: Page 10

Published rationale. Remedies are not self executing. Page 10 requires written notice of a complaint and ninety days to cure before further action, including dispute resolution under Section 4.11. For a controversy of $10,000 or less, Claim Administrator selects the arbitrator, and the same section bars a judge or jury. Page 9 indemnity requires that conduct be adjudged grossly negligent, fraudulent, criminal, or a material breach. There are no liquidated damages or automatic credits for missed guarantees or late reports. Page 46 makes discount and minimum rebate guarantees ineffective if the exhibit ends before the guarantee period. There is no second strike exit and no regulatory integrity termination right. The model contract requires automatic remedies without proof of damages and a penalty free exit after a repeat breach or a regulatory integrity failure. This draft requires a cure and adjudication, and it can forfeit guarantees on an early exit. That is bad.

This provision precludes Employer from filing an action at law or in equity and from having any dispute covered by this Agreement heard by a judge or jury

Recorded reference: Page 11

Published rationale. The model term makes remedies self executing: liquidated damages or automatic credits on missed guarantees and late reports, plus a penalty free exit after a second material breach. This draft moves enforcement in the opposite direction. There are no liquidated damages or automatic credits anywhere. Instead, section 4.9 on page 10 imposes a 90 day notice and cure window before any action, section 4.11 on pages 10 and 11 forces confidential binding AAA arbitration in Dallas and bars any judge or jury, section 4.10 caps the Claim Administrator's liability at the benefits that should have been paid, and a three year limitations period applies. The only breach exit is the generic termination for material breach after cure under section 6.1(c) on page 11. Meanwhile the Employer owes a 12 percent per annum late charge on page 24. Enforcement is slow, capped and secret for the plan, and automatic against it.