EXHIBIT 10.19
AMENDED AND RESTATED
SOFTWARE LICENSE AGREEMENT
("Agreement")
THE SOFTWARE LICENSE AGREEMENT made and entered into effective February 10,
1995 by and between CompReview, Inc., a California corporation, now known as HNC
Insurance Solutions, ("Licensor") with its principal place of business presently
located a ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Comprehensive
Rehabilitation Associates, Inc., a Massachusetts Corporation, now known as
Concentra Managed Care Services, Inc., ("Licensee"), with its principal place of
business presently located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, as
subsequently amended prior to the date hereof (the "Original Agreement") is
hereby amended and restated in its entirety by this Agreement, effective as of
May 1, 1999.
On the terms and conditions set forth herein, Licensee desires to continue its
license from Licensor to use copies of (i) Licensor's computer program known as
CRLink, Versions 1.0, 2.0 and 2.5 (the "Programs") for reviewing and repricing
medical bills related to workers' compensation claims and personal injuries
arising out of automobile accidents, and (iii) the related documentation listed
on Exhibit A (the "Documentation"), and (B) to use the Programs and
Documentation to review and reprice a limited number of group health medical
bills. The Programs and the Documentation collectively are referred to as the
"Software."
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, Licensor and Licensee agree as follows:
1. Grant of License
1.1 The license previously granted by Licensor to Licensee under the Original
Agreement shall continue, subject to the terms and conditions of this Agreement,
as a personal, nontransferable, non-exclusive license (the "License") (i) to use
copies ofthe Programs, in object code form only, solely at the Licensee
locations listed on Exhibit B (or such other location(s) as such company offices
may be subsequently moved to) (the "Designated Location(s)") for Licensee's
review and repricing of workers compensation and automobile personal injury
medical bills submitted to it by its clients and (ii) to use copies of the
Documentation solely for use in connection with the use of the Programs
authorized hereunder. Additional Designated Locations may be added to Exhibit B
from time to time with Licensor's consent, which shall not be unreasonably
withheld, delayed or conditioned. Additional Designated Locations may require
additional license fees. The License is hereby expanded to use copies of the
Programs and Documentation at the Designated Location(s) to review and reprice
group health medical bills that are submitted to Licensee by its clients with
either workers compensation medical bills or automobile personal injury medical
bills. The number of group health medical bills that may be reviewed and
repriced may not materially exceed 2.5% per month of the total number of bills
processed through the Software. The License includes the right to copy the
Software as reasonably required by Licensee solely for internal ▇▇▇▇ review at
the Designated Locations and for archival and back-up purposes. Licensee may not
allow its clients or any third parties access to the Software via modem or
otherwise for any reason whatsoever without Licensor's prior written consent.
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1.2 Licensee agrees that the License does not include, and Licensee shall not
by virtue of this Agreement have, any right to use or authorize the use of the
Software for any purpose other than review and repricing of workers compensation
medical bills and automobile personal injury medical bills submitted to it for
repricing, together with a limited number of group health medical bills
submitted to Licensee for repricing. The medical bills that Licensee is licensed
to use the Software to review and reprice are referred to herein as "Medical
Bills." Licensee acknowledges and agrees that it has no right whatsoever to
license the use, reproduction or distribution of the Software by any person,
firm or entity.
1.3 Licensor shall not provide Licensee with a copy of, and Licensee acquires
no right of any kind with respect to, any source code for the Programs. Licensee
agrees not to, and shall insure that its employees do not, create or attempt to
create, by decompiling, disassembling, reverse engineering or otherwise, the
source code for the Programs. Licensee acknowledges and agrees that it has no
right whatsoever to modify the Software or any portion thereof in any manner.
1.4 Licensee shall make provision for and install a modem and telephone line
for dial-up access to Licensee's computer system by the Licensor for the
purposes of Software maintenance or the provision of software updates. All such
access shall be with the Licensee's advance knowledge and approval and Licensee
agrees to allow such right of reasonable access by the Licensor. Licensor agrees
to schedule such maintenance so as to not materially interfere with Licensee's
business.
1.5 During the term of this Agreement. and at no additional charge, Licensor
will provide to Licensee (a) all updates to the Software reflecting changes to
states workers compensation regulations within 15 working days after such
regulations are published by the appropriate State agency and (b) such other
updates to the Software as Licensor makes generally available to its customers.
1.6. The preferred provided organization networks ("PPO Networks") whose
contract rates the Software is currently able to access are listed on Exhibit C
hereto. Licensor has the authority to offer access through the Software to the
PPO Networks listed on Exhibit C. Licensee may not access any other PPO Networks
through the Software without Licensor having first advised Licensee that it has
the authority to access such PPO Networks. Licensee may not use the Software to
access the PPO Networks for any purpose or in any manner other than as expressly
permitted hereby.
1.7 Licensor does not represent or warrant that its access to the contract
rates of each PPO Network listed will continue throughout the term of this
Agreement. Access to PPO Network rates may be terminated for a number of
reasons, including expiration of the term of an access agreement and a PPO
Networks refusal to extend the agreement, or a third-party decision not to
maintain the PPO Network, which decision may occur in connection with the
combination of one or more PPO Networks through business acquisitions. Licensor
will promptly advise Licensee of any notice of termination of access it receives
from any PPO. In no event will there be a retroactive termination of PPO access.
Licensor will use its best efforts to maintain its access to the PPO Networks
throughout the term of this Agreement, provided, however, Licensor shall not
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be obligated to incur any additional material cost, obligation or burden to
maintain such access.
1.8 If Licensee requests that any PPO Networks be "stacked" in any particular
order, Licensor will request written approval from each of the PPO Networks to
the stacking, and, if such approval is obtained, will stack the PPO Networks as
requested. If Licensee requests that Licensor include one or more additional PPO
Networks in the Software, Licensor will investigate the feasibility of doing so,
and will use its reasonable best efforts to add such additional PPO Networks to
the Software only if it is (i) technically feasible to automate the PPO Network
through the Software, (ii) Licensor is able to obtain an access and distribution
agreement with the PPO Network on terms that are acceptable to Licensor, and
(iii) in Licensors reasonable business judgment the costs of adding,
distributing and maintaining the additional PPO Network on the Software is
justified. Licensor will promptly notify Licensee of the addition of any new PPO
Networks to the Software.
2. Installation and Training
2.1 The parties acknowledge that the Programs have been installed by Licensor
at the Designated Location(s) and accepted by Licensee in accordance with the
Original Agreement. The parties also acknowledge that an electronic data
interface ("EDI") exists which enables the Software to interface for data
exchange with Licensee's claims and managed care systems. Licensor will maintain
the EDI in accordance with Exhibit D hereto. Any requests by Licensee for
modifications to the EDT will be handled in accordance with Section 2.3 below.
2.2 The history of all Medical Bills processed on other systems that are
submitted to Licensor will be converted and input into the data base of the
Software. Licensee will provide Licensor with all ▇▇▇▇ review historical data,
case management information, data calls, and data necessary to convert the ▇▇▇▇
history of previously processed bills into the Software database. Licensor will
continue to support CrLink Versions 1.0 and 2.0 until the migration of the
Medical ▇▇▇▇ history to CrLink Version 2.5 is completed. Such support will be in
accordance with Exhibit D and Licensor's standard support policies.
2.3 Any "system change requests" ("SCR") by Licensee for changes to the
Programs by Licensor, including changes to the existing electronic data
interface will be prioritized as level 1 through 4 requests and performed by
Licensor in accordance with Exhibit D hereto. Licensee will provide Licensor in
a timely manner with such assistance and input as Licensor may request in
connection with any SCR. Licensor will schedule regular releases of enhancements
to CRLink Version 2.5 as long as it remains the current version of the Software.
Licensee may make recommendations on priorities for enhancements to Version 2.5
of the Program in accordance with Exhibit D.
2.4 The cost and timing to complete the ▇▇▇▇ history conversion and SCR is set
forth in Exhibit D hereto.
2.5 The parties acknowledge that all free training required under the Original
Agreement during the first month period following completion of the installation
of the Programs has been provided. If further training is required, the cost to
provide this service shall be at a rate of $400 per day, plus all reasonable
out-of-pocket travel expenses. including, transportation, lodging and meals.
Training shall, at the election of Licensee, be at either Licensor's office or
at one of the Designated
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Locations, and shall be scheduled at such times as are mutually convenient for
the parties. If training is done at a Designated Location, each day that
Licensor's personnel is available at such location shall constitute a full day
of training regardless of the number of hours actually utilized by Licensee.
Training during any day shall not exceed 8 hours of actual training. If training
is done at Licensor's office, training days of less than 8 full hours shall be
prorated on an hourly basis of $50 per hour. Payment for training shall be due
within thirty (30) days after Licensee has been invoiced for the training.
3. Term and Termination
3.1 The term of this Agreement shall commence on the date hereof as set forth
on page 1 and continue until the second anniversary date hereof or until this
Agreement is terminated pursuant to any provision hereof. Either party may
terminate this Agreement without cause upon 180 days prior written notice to
the other party given at any time after June 30, 2000. Licensor may also
terminate this Agreement upon 1 80 days notice as set forth in Section 10
below.
3.2 Either party shall be entitled to terminate this Agreement (and pursue all
of its rights hereunder at law or in equity) upon written notice to the other
party in the event of a breach by such other party of any of its obligations
hereunder and the failure of such other party to cure any such breach within 30
days from receipt of written notice of such breach, unless such breach by its
nature cannot be cured, in which event the nonbreaching party shall be entitled
to terminate this Agreement upon written notice to the other party without any
opportunity to cure.
3.3 This Agreement shall immediately terminate upon the filing by or against
Licensee of a proceeding under any bankruptcy or similar law, unless such
proceeding is dismissed within 60 days from the date of filing; the making by
Licensee of any assignment for the benefit of creditors; the filing by or
against Licensee of a proceeding for dissolution or liquidation, unless such
proceeding is dismissed within 60 days from the date of filing; the appointment
of or the application for the appointment of a receiver, trustee or custodian
for all or part of the assets of Licensee to make any adjustment, settlement or
extension of its debts with its creditors generally; the insolvency of Licensee;
or the filing or recording of a notice of lien or the issuance or the obtaining
of a levy of execution upon or against a material portion of the assets of
Licensee, unless such lien or levy of execution is dissolved within 60 days from
the date thereof;
3.4 Upon termination or expiration of this Agreement for any reason (including,
without limitation, discontinuation of use of the Software by Licensee), the
rights of Licensee to possess or use the Software shall end, and Licensee shall
immediately, at Licensor's sole option, deliver to Licensor or destroy the
original Software and all copies of the Software or any portion thereof in its
possession or control. Within 20 days following the date of such termination or
expiration, an officer of Licensee shall certify in writing to Licensor that the
terms of this Section 3.4 have been complied with.
4. License Fees; Payment
4.1 The fees to be paid to Licensor for this License and the services to be
provided by Licensor hereunder are set forth in Exhibit D hereto. Licensor will
from time to time provide such
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additional services as the parties may mutually agree. Such services will be
provided at Licensor's prevailing rates at the time the services are performed.
If such services are not customarily provided by Licensor to other licensees,
they will be provided at such rates as Licensor and Licensee may agree to.
4.2 License fees will be billed monthly through Licensor's then current billing
system. Third party fees for databases such as usual, customary and reasonable
fees and drug costs, as well as preferred provider organization access fees
(collectively "Third Party Fees") are not included in the licensee fees set
forth above, but will be billed by Licensor to Licensee. Licensee will be
responsible for all Third Party Fees during the first 12 months of this
Agreement, as referenced in Exhibit D hereto, and for all increases in such
Third Party Fees that may occur from time to time thereafter that do not exceed
on an aggregate basis 10% per annum. All license fees, together with any Third
Party Fees owed by Licensee are due and payable within thirty (30) days after
receipt of the electronic invoice.
4.3 In addition to any other amounts due hereunder, Licensee shall pay to or
reimburse Licensor the amount of any sales, use, excise, property or other
federal, state, local or foreign taxes, duties, tariffs or other assessments
(other than any tax based solely on Licensor's net income) any related interest
and penalties which Licensor is at any time obligated to pay or collect in
connection with or arising out of the transactions contemplated by this
Agreement.
4.4 In the event Licensor does not receive any amounts from Licensee due under
this Section 4 or any other Section hereunder on or before the date on which
such amounts are due and payable, such outstanding amounts shall bear interest
until payment is received at the maximum rate permitted by law, but in no event
to exceed twelve percent (12%) per annum. Amounts received by Licensor hereunder
shall first be credited against any unpaid interest, and accrual of such
interest shall be in addition to and without limitation of any and all
additional rights or remedies which Licensor may have hereunder or at law or in
equity.
4.5 Each month Licensor will provide Licensee with documentation describing the
number and types of bills processed by Licensee utilizing the Programs in the
prior month.
4.6 Licensor and Licensee shall each have the right to audit the procedures and
records of the other pertaining to the number and types of bills processed each
month and how such bills were processed. Such audits shall not occur more
frequently than every twelve months, shall be on not less than forty-eight (48)
hours prior notice, and shall be conducted at reasonable times and in a
reasonable manner. The party being audited shall reasonably cooperate with the
party conducting the audit.
5. Proprietary Rights
5.1 Licensee acknowledges that it obtains pursuant to this Agreement only the
right to use copies of the Software on the terms and conditions set forth herein
and that no right, title or interest in or to the Software or any copies thereof
or any copyrights, trademarks or other proprietary rights related to the
Software are transferred to Licensee. Licensee will use its best efforts and
will take all reasonable steps to protect the Software from any use,
reproduction, publication, disclosure or
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distribution except as specifically authorized by this Agreement (collectively
"Unauthorized Use or Disclosure"). Licensee acknowledges and agrees that the
Software contains confidential information and trade secrets developed or
acquired by Licensor through the expenditure of a great deal of time and money.
Licensee agrees to treat the Software as confidential as set forth below.
5.2 Licensee shall not remove, alter, cover or obfuscate any copyright notice,
trademark or other proprietary rights notice placed by Licensor in or on the
Software or any portion thereof and shall insure that all such notices are
reproduced on all copies of the Software or any portion thereof made by
Licensee. Licensee shall comply with reasonable directions submitted by Licensor
from a time to time regarding the form and placement of copyright notices and
other proprietary rights notices on the Software or any portion thereof.
5.3 Licensee and Licensor shall hold and maintain in the strictest confidence
and in trust for the sole and exclusive benefit of the other all "Confidential
Information" (as defined below) of the other and shall not use such information
for its own benefit, except as expressly permitted hereunder, or publish or
otherwise disclose it to third parties, or permit its use or access by third
parties (except as contemplated hereunder)for their benefit or to the detriment
of the other party hereto, except that such disclosure or access shall be
permitted to an employee or representative of Licensee or Licensor to the extent
required for such employee or representative to perform duties for Licensee or
Licensor not inconsistent with the terms of this Agreement. Licensee and
Licensor shall carefully restrict access to the Confidential Information of the
other to those of their respective employees and representatives who clearly
require such access in order to carry out the purposes of this Agreement.
Licensee and Licensor shall each ensure that their respective employees and
representatives who receive access to the Confidential Information of the other
are advised of its confidential and proprietary nature and that they are
prohibited from copying, utilizing, or revealing the Confidential Information or
any portion thereof or from taking any action prohibited to Licensee or Licensor
under this Agreement. Without limiting the foregoing, Licensee and Licensor
shall each employ with regard to the Confidential Information of the other
procedures no less restrictive than the strictest procedures used by them to
protect their own trade secrets.
As used herein, the term "Confidential Information" means the Software, the
licensee fees, the specific terms of this Agreement and the Original Agreement,
claims information, and Licensor's and Licensee's data, practices and
procedures, client names and business relationships with third parties.
Confidential Information shall also include any information concerning
Licensor's and Licensee's clients or suppliers, and any information either party
has received from others which it is obligated to treat as confidential or
proprietary. Confidential Information shall not include (i) any information that
has become publicly known without breach of this Agreement or any other
confidentiality obligation owed by either party hereto to others (ii)
information that is generally known in Licensor's or Licensee's industry, or
(ii) information known to the receiving party prior to the disclosing party's
disclosure of the same; provided the prior knowledge was not obtained as a
result of a breach of any confidentiality obligation owed to Licensor or
Licensee.
5.4 Licensee shall make reasonable efforts to promptly notify Licensor of any
known Unauthorized Use or Disclosure of the Software and will cooperate with
Licensor in any litigation brought by Licensor against third parties to protect
its proprietary rights. Licensee's compliance with the provisions of this
section shall not be construed as a waiver of any of Licensor's rights
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hereunder.
5.5 Because of the unique and proprietary nature of the Software, it is
understood and agreed that Licensor's remedies at law for a breach by Licensee
of its obligations under this Section 5 will be inadequate and that Licensor
shall, in the event of any such breach, be entitled to equitable relief
(including, without limitation, injunctive relief and specific performance)
without any requirement to post a bond as a condition of such relief, in
addition to all other remedies provided under this Agreement or available to
Licensor at law.
6. Warranties
6.1 Licensor warrants that the unmodified Programs shall perform substantially
in accordance with the related Documentation. Licensor shall (i) provide
Licensee with a revised copy of the Programs reflecting any correction or
modification which is incorporated by Licensor into its standard version of such
Programs and shall provide Licensee with any new standard version of the
Programs; (ii) use commercially reasonable efforts to correct any failures of
the latest version of the Programs to perform substantially in accordance with
the related Documentation, provided Licensor is given written notice by Licensee
of such failures and such failures can be recreated by Licensor; and (iii)
provide reasonable amounts of telephone consultation to a designated
representative of Licensee to alleviate any difficulties Licensee may experience
in the operation of the latest version of the unmodified Programs.
HNC Year 2000 Representation and Warranty. Licensor has previously disclosed to
-----------------------------------------
Licensee that both version 1.0 and version 2.0 of the Programs are not "Year
2000 Compliant" as defined below. Licensor represents and warrants that version
2.5 of the Programs and all electronic data interfaces related to Licensee' s
use of version 2.5 of the Programs, and any other software provided by HNC in
connection with Licensee's use of version 2.5 of the Programs (collectively, the
"Subject Software"), are Year 2000 Compliant (as defined below) or to the extent
the Subject Software is not Year 2000 Compliant, Licensor will inform Licensee,
in detail, of any deficiency as of the date of this Agreement, and that such
deficient Subject Software will be Year 2000 Compliant by November 1, 1999.
Licensor will make a certification on that date that all the Subject Software
are Year 2000 Compliant. If Licensor is unable to make such certification,
Licensee shall be entitled to terminate this Agreement immediately without
further notice or opportunity to cure and Licensor will be liable to Licensee
for any costs related to the transitioning of the services contemplated in this
Agreement to a third party. Licensor further represents and warrants that its
internal business applications and processes (including manufacturing, testing,
and inspection processes) shall be Year 2000 Compliant by November 1, 1999.
Licensor agrees to provide Licensee with regular disclosures regarding its Year
2000 Compliancy efforts and any other information reasonably requested by
Licensee to verify Licensor's Year 2000 compliancy. Licensor further agrees to
cooperate in all reasonable respects with Licensee in such verification efforts.
For purposes of this section, "Year 2000 Compliant" means (i) that the Subject
Software will on a timely basis and as corroborated in a manner approved by
Licensee perform as intended regardless of date and that all data, including
dates, can be accessed and processed with specific result, (ii) that the Subject
Software recognizes year 2000 as a leap year, and (iii) that the Subject
Software
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represents each year as four digits in all user visible interfaces, stores year
with sufficient capacity to support four digit years, and produces accurate
results:
. for any date (whether before, during, or after 2000), within an
acceptable date range; and
. for any time (whether before, during, or after 2000), within an
acceptable date range.
"Acceptable date range" means any date that the application will
encounter from now through fifty years past the millennium. The actual
range of dates supported will vary depending on how dates are used
within the particular application.
EXCEPT AS STATED ABOVE, LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL MEET
LICENSEE'S REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED
OR ERROR FREE. EXCEPT AS PROVIDED IN THIS SECTION 6, LICENSOR DOES NOT MAKE BY
VIRTUE OF THIS AGREEMENT, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR
WARRANTY OF ANY KIND WITH RESPECT TO THE SOFTWARE OR THE SERVICES OF LICENSOR,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
6.2 Licensee agrees that, regardless of the form of any claim, Licensor's
entire liability and Licensee's exclusive remedy shall be as set forth in this
Section 6. If, after having been given written notice of any failure of the
Programs to perform substantially in accordance with the related Documentation,
Licensor is unable to correct such failure within sixty (60) days, Licensee may
immediately terminate this Agreement with respect to such Programs by complying
with the provisions of Section 3.4 hereof.
6.3 Exclusion ofConseguential Damages; Limitation of Liability
---------------------------------------------------------
NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER FOR
CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF
OR RELATED TO THE SOFTWARE OR THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING,
WITHOUT LIMITATION, LOST PROFITS OR SAVINGS, EVEN IF APPRISED OF THE LIKELIHOOD
OF SUCH DAMAGES OCCURRING. IN NO EVENT SHALL LICENSOR'S LIABILITY TO LICENSEE
HEREUNDER (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATED TO THE SOFTWARE LICENSED HEREUNDER EXCEED THE
AGGREGATE OF THE LAST THREE MONTHS' LICENSE FEES ACTUALLY PAID. FOR PURPOSES OF
THIS PARAGRAPH ONLY, "LICENSE FEES" ARE DEFINED AS THE SUM OF THE TOTAL FEES
PAID FOR ▇▇▇▇ REVIEW, PLUS THE ACCESS FEE PAID BY LICENSEE TO LICENSOR FOR USE
OF THE FOCUS PPO, MINUS THE ACCESS FEE PAID BY LICENSOR TO FOCUS FOR USE OF THE
FOCUS PPO FOR LICENSEE.
7. Security Precautions
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To prevent any loss or damage to data as a result of malfunctions, errors or
defects of or in the Software, Licensee will maintain backup data ofall data
used in connection with the Software.
8. Disputes
Any action concerning a dispute arising out of or in connection with this
Agreement or the respective obligations of Licensor and Licensee hereunder shall
be brought and maintained in a court of competent jurisdiction in Orange County,
California.
9. Proprietary Rights Indemnity
Subject to Licensee's fulfillment of its obligations under this Section 9 and
the dollar limitations set forth in this Section, Licensor will hold, to the
extent set forth in this Section, Licensee harmless, and at its own expense
defend or settle any claim, suit, action, or proceeding brought against Licensee
to the extent that such claim, suit, action, or proceeding is based on a claim
that the Software or any portion thereof infringes or constitutes wrongful use
of a United States patent, United States copyright or trade secret right
protected under the law of any state in the United States (a "U.S. Proprietary
Right"). Licensee shall notify Licensor in writing of any such claim promptly
after Licensee first learns of it, and shall provide Licensor with such
cooperation and assistance as Licensor may reasonably request from time to time
in connection with the defense thereof. Licensor shall have sole control over
any such suit or proceeding (including, without limitation, the right to settle
on behalf of Licensee on any terms Licensor deems desirable in the sole exercise
of its discretion). In the event that the use of the Software or any portion
thereof as permitted hereunder is held to infringe or constitute wrongful use of
any U.S. Proprietary Right and Licensee's right to use such Software is enjoined
by a court of competent jurisdiction or if Licensor, in the reasonable exercise
of its discretion, instructs Licensee to cease using any such Software in order
to mitigate or lessen potential damages arising from a claimed infringement or
wrongful use of any U.S. Proprietary Right, Licensee shall cease using such
Software. In the event Licensee ceases to use such Software as provided in this
Section (other than by reason of a temporary restraining order), Licensor shall
(i) replace such Software with equally suitable non-infringing software, (ii)
modify such Software so that the use of the Software by Licensee as permitted
hereunder ceases to be infringing or wrongful, (iii) procure for Licensee the
right to continue using such Software as permitted hereunder, or (iv) after
reasonable efforts under subsections (i), (ii), and (iii) of this sentence, pay
to Licensee the last month's licensee fee paid by Licensee. OTHER THAN AS
EXPRESSLY STATED IN THIS SECTION 9, LICENSOR SHALL HAVE NO LIABILITY WHATSOEVER
TO LICENSEE FOR ANY LOSS OR DAMAGE (INCLUDING, WITHOUT LIMITATION, FOR ANY
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES) ARISING OUT OF OR
RELATED TO ANY ALLEGATION OR DETERMINATION THAT LICENSEE'S USE OF THE SOFTWARE
AS PERMITTED HEREUNDER INFRINGES OR CONSTITUTES WRONGFUL USE OF ANY U.S.
PROPRIETARY RIGHT. LICENSOR MAKES NO REPRESENTATION OR WARRANTY AND DISCLAIMS
ALL LIABILITY OF ANY TYPE WHATSOEVER ARISING OUT OF OR RELATING TO ANY
ALLEGATION OR DETERMINATION THAT LICENSEE'S USE OF THE SOFTWARE INFRINGES OR
CONSTITUTES WRONGFUL USE OF ANY COPYRIGHT, TRADE SECRET. PATENT OR
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OTHER PROPRIETARY RIGHT OTHER THAN A U.S. PROPRIETARY RIGHT.
Licensor will hold Licensee harmless and at its own expense defend or settle any
claim, suite, action or proceeding brought against Licensee by any third party
to the extent that such claim, suit, action or proceeding is based upon Licensor
having failed to update the data bases as required in this Agreement or having
distributed data bases it does not have the authority to distribute to Licensee.
10. Assignment
Except as set forth below, Licensee may not assign or transfer this Agreement or
any interest herein (including rights and duties of performance) without the
prior written consent of Licensor, which consent shall not be unreasonably
withheld, it being understood that Licensor may disapprove any assignment or
transfer to a competitor. Licensee may transfer this Agreement to any entity
which acquires all or substantially all of Licensee's operating assets, or into
which or with which Licensee is merged or reorganized without Licensor's prior
written consent; provided, however, that if such entity, or any of its
"affiliates" is a competitor of Licensor, Licensor may terminate this Agreement
upon 1 80 days notice. In addition, if any competitor of Licensor or an
affiliate of such competitor obtains more than 30% of the voting power of
Licensee (a "change of control"), Licensor may terminate this Agreement upon
180 days notice. Licensor may also terminate this Agreement immediately at any
time following a change of control or assignment or transfer of this Agreement
to a competitor of Licensor or an affiliate of such a competitor, if such party
breaches any of the provisions of this Agreement concerning proprietary rights,
confidentiality or restrictions on use of the Software. The term "affiliate" as
used herein means any natural person or entity, including, without limitation,
corporations, limited liability companies, trusts, limited partnerships, joint
ventures and general partnerships, that directly or indirectly, through one or
more intermediaries, controls, is controlled by or is under common control with
Licensee or its assignee.
11. Indemnification by Licensee
Licensee agrees to hold Licensor harmless and at its own expense to defend or
settle any claim, suit, action, or proceeding brought against Licensor by any
third party to the extent that such claim, suit, action or proceeding is based
on any act or omission of Licensee in using the Programs. Licensor's
indemnification of Licensee for third party claims is set forth in Section 9
above.
12. Notices
Except as otherwise specified herein, all notices, requests, demands or
communications required or permitted hereunder shall be in writing, delivered
personally, or sent by courier service of national reputation (e.g., Federal
Express) or sent by first class mail, postage prepaid, to the parties at the
respective addresses above (or at such other address as shall be given
in writing by either of the parties to the other in accordance with this
Section 12). All notices, requests, demands or communications shall be deemed
effective upon personal delivery, or one day following delivery to such courier
service, or four days following deposit in the U.S. mail In accordance with this
Section 12.
10
13. Excused Performances
Neither party shall not be deemed to be in default of or to have breached any
provision of this Agreement as a result of any delay, failure in performance or
interruption of service, resulting directly or indirectly from acts of God, acts
of civil or military authorities, civil disturbances, wars, strikes or other
labor disputes, shortages of labor or materials, fires, transportation
contingencies, laws, regulations, acts or orders of any government or agency or
official thereof, other catastrophes, or any other occurrences beyond such
party's reasonable control.
14. Miscellaneous Provisions
14.1 Except as otherwise provided herein, no remedy made available to either
party hereto by any of the provisions of this Agreement is intended to be
exclusive of any other remedy, and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise.
14.2 No waiver of any provision of this Agreement or any rights or obligations
of either party hereunder shall be effective, except pursuant to a written
instrument signed by the party or parties waiving compliance, and any such
waiver shall be effective only in the specific instance and for the specific
purpose stated in such writing.
14.3 This Agreement shall be construed and enforced in accordance with the laws
ofthe State of California which are applicable to the construction and
enforcement of contracts between parties resident in California which are
entered into and fully performed in California, regardless of where this
Agreement is executed or performed or the residency of the parties hereto. The
Agreement shall be interpreted in accordance with its fair meaning and not in
favor or against either party.
14.4 This Agreement may be executed in one or more counterparts, each of which
shall be an original and all of which together shall constitute one and the same
Instrument.
14.5 This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective permitted successors and assigns.
14.6 Sections 3.4, 4, 5, 6.2, 6.3, 8, 9, 11 and 14 (and the limitations on
liability set forth herein) shall survive expiration or termination of this
Agreement for any reason.
14.7 In the event that any provision hereof is found invalid or unenforceable
pursuant to judicial decree or decision, the remainder ofthis Agreement shall
remain valid and enforceable according to its terms.
14.8 In the event of any litigation hereunder, any such action shall be brought
in a state or federal court of competent jurisdiction located in Orange County,
California, and the prevailing party in the action as determined by the court
will be entitled to recover from the other party its costs and reasonable
attorneys' fees.
11
14.9 This Agreement constitutes the entire understanding and agreement between
Licensor and Licensee with respect to the transactions contemplated herein and
supersedes any and all prior or contemporaneous oral or written communications
with respect to the subject matter hereof, including, without limitation,
previous efforts to amend and restate the Original Agreement as reflected by a
draft agreement dated October 1, 1998 that was being reviewed and revised by the
parties as of December 23, 1998. It is expressly understood and agreed that no
employee, agent or other representative of either party has any authority to
bind such party with regard to any statement, representation, warranty or other
expression unless the same is specifically set forth or incorporated by
reference herein. It is expressly understood and agreed that, there being no
expectation to the contrary between the parties hereto, no usage of trade or
other regular practice or method of dealing between the parties hereto shall be
used to modify, interpret, supplement or alter in any manner the express terms
of this Agreement or any part hereof. This Agreement shall not be modified,
amended or in any way altered except by an instrument in writing signed by duly
authorized representatives ofthe parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
ofthe date first above-written.
"Licensor" "Licensee"
HNC Insurance Solutions Concentra Managed Care Services, Inc.
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇ ▇▇▇
------------------------ -----------------------
Title: CFO Title: President
----------------------- --------------------
12
EXHIBIT A
---------
List of Documentation
The Documentation is the Licensor's "USERS MANUAL." This documentation serves to
provide an overview to users of how to use the Programs. The contents of the
manual are the proprietary property of Licensor. Licensor authorizes Licensee to
copy any portion of the documentation for internal use only. Licensee may not
provide access to any portion of the Users Manual to any party other than those
employees of Licensee who need access to the Users Manual in order to operate
the Programs in accordance with the terms of the License Agreement.
Licensee understands that a single copy of the documentation will be provided at
the time of training. A single set of periodic updates to this documentation
will be provided to the Licensee by the Licensor as said updates become
available.
EXHIBIT B
---------
Designated Location(s)
R11 - Buffalo: One (1) Production Server
R58 - Denver: One (1) Production Server
R63 - Waltham Three (3) Production Servers, One (1) Test Server
** Note: These are the servers that are physically in each location. At the R63
site, the three production servers are called R55, R63, R85.
EXHIBIT C
---------
PPO Networks
State Jurisdiction PPO Number PPO
------------------ ---------- ---
AK 09 Focus WC
AL 09 Focus WC
AR 05 Medview WC
▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇
▇▇ 07 CompAlliance
09 FocusWC
97 Focus/Fremont
CA 05 Medview WC
07 CompAlliance
09 FocusWC
97 Focus/Fremont
CO 05 Medview WC
09 FocusWC
88 Focus Concentra Auto
CT 05 Medview WC
06 Medview Auto
09 FocusWC
19 Medview GH
56 Focus Auto
88 Focus Concentra Auto
DC 05 Medview WC
09 Focus WC
DE 09 Focus WC
FL 05 Medview WC
09 FocusWC
19 Medview GH
97 Focus/Fremont
GA 09 Focus WC
19 MedviewGH
56 Focus Auto
HA 09 FocusWC
88 Focus Concentra Auto
HI 09 FocusWC
1
State Jurisdiction PPO Number PPO
------------------ ---------- ---
97 Focus/Fremont
IA 09 FocusWC
IL 09 FocusWC
19 Medview GH
05 Medview WC
09 FocusWC
KS 09 FocusWC
97 Focus/Fremont
KY 05 Medview WC
09 FocusWC
79 Medview KY
LA 09 FocusWC
LS 09 FocusWC
MA 05 Medview WC
09 FocusWC
88 Focus Concentra Auto
MD 05 Medview WC
09 FocusWC
97 Focus/Fremont
ME 09 FocusWC
MI 05 Medview WC
09 FocusWC
56 Focus Auto
97 Focus/Fremont
MN 05 Medview WC
09 FocusWC
MO 09 FocusWC
MS 09 FocusWC
MT 09 Focus WC
NC 09 FocusWC
ND 09 FocusWC
NE 09 FocusWC
NH 05 Medview WC
09 FocusWC
19 Medview GH
NJ 06 Medview Auto
09 FocusWC
56 Focus Auto
2
State Jurisdiction PPO Number PPO
------------------ ---------- ---
88 Focus Concentra Auto
NM 09 FocusWC
NV 09 FocusWC
97 Focus/Fremont
NY 06 Medview Auto
09 FocusWC
56 Focus Auto
71 Focus/MagnaCare
85 Focus/MagnaCare
88 Focus Concentra Auto
OH 05 MedviewWC
09 FocusWC
19 Medview GH
62 OCN
81 OCN
OK 09 FocusWC
19 Medview GH
56 Focus Auto
OR 09 FocusWC
PA 05 Medview WC
09 Focus WC
PP 09 FocusWC
56 Focus Auto
88 Focus Concentra Auto
RI 05 Medview WC
09 FocusWC
SC 09 FocusWC
SD 05 Medview WC
09 FocusWC
TN 09 FocusWC
TX 05 Medview WC
09 FocusWC
19 Medview GH
04 MSCI
97 Focus/Fremont
UA 88 Focus Concentra Auto
UC 05 MedviewWC
06 Medview Auto
09 FocusWC
3
State Jurisdiction PPO Number PPO
------------------ ---------- ---
19 Medview GH
28 PHS
56 Focus Auto
74 HFN
88 Focus Concentra Auto
97 Focus/Fremont
UT 09 FocusWC
97 Focus/Fremont
VA 09 FocusWC
VT 05 MedviewWC
09 FocusWC
85 Focus/MagnaCare
WA 05 Medview WC
09 FocusWC
WI 05 Medview WC
09 FocusWC
74 HFN
97 Focus/Fremont
WV 09 FocusWC
4
[LOGO OF HNC]
Effective Date as of May 1, 1999
Exhibit D
Letter of Intent for Revised Agreement
Between CONCENTRA and HNCIS
Pricing
Implementation and Migration Costs Fee
------------------------------------------------- ---------------------------------------------------
. History Conversion . HNCIS New Implementations To Be Determined
. Interface Creation of: Based On Defined Scope and Level of Required
. Claims Data Import Customization for Each New Site
. Provider Data Import
. Employer Data Import . The following table presents current estimates of
. Response File Import costs, based on Difficulty Level:
. Managed Care Direction Import (opt)
. Claims Payment Export Per Migration Charge:
. ▇▇▇▇ Image Export . M/1/ 14,250
. ▇▇▇▇ Detail Export . M/1/T 16,650
. Quality Assurance and Testing of all built . M/2/ 8,250
processes. . M/3/ 5,250
. Site Audit / Technical Environment and
Operations.
. Systems Adminstration Check-out
. Installation of Software at Client's Site(s)
------------------------------------------------- ---------------------------------------------------
Post Installation Training [Optional] Fee
------------------------------------------------- ---------------------------------------------------
. Training at client's location . $400 per day + Reasonable Travel Expenses.
. $50 per hour.
. Training as HNCIS location
------------------------------------------------- ---------------------------------------------------
Site Minimum Monthly Fees* Fee
------------------------------------------------- ---------------------------------------------------
. Each Additional Site Where Software is Located . $1,000
------------------------------------------------- ---------------------------------------------------
------------------------------------------------- ---------------------------------------------------
------------------------------------------------- ---------------------------------------------------
License Fees
------------------------------------------------- ---------------------------------------------------
Bills Processed* Fee
------------------------------------------------- ---------------------------------------------------
All From July 1, 1999 until June 30, 2000 --
$1.35/▇▇▇▇
From July 1, 2000 Termination --
$1.65/▇▇▇▇
------------------------------------------------- ---------------------------------------------------
* Excludes Fees For Fee Negotiation and PPO Access Rates-see below.
------------------------------------------------- ---------------------------------------------------
CRExpress Upgrade [Optional] Fee
------------------------------------------------- ---------------------------------------------------
. Capstone Decision Engine . Additional $ .25 per ▇▇▇▇ processed
------------------------------------------------- ---------------------------------------------------
Page: 1 of 3
[LOGO OF HNC]
Effective Date as of May 1, 1999
Required Databases Fee
------------------------------------------------- ---------------------------------------------------
Usual & Customary Databases: Prices Subject to Annual Review, Currently:
. Medicode (All States) . $32,050 per year for all sites; a rate
. OWCP -- Long Shore & Harbor Claims substantially less than per site or ▇▇▇▇
volume based charges under NCIS normal
▇▇▇▇ terms.
. No Charge
------------------------------------------------- ---------------------------------------------------
------------------------------------------------- ---------------------------------------------------
Required Databases Fee
------------------------------------------------- ---------------------------------------------------
Btrieve License:
. Site License . If Concentra pays HNCIS, HNCIS will quote
current market fee. Otherwise, Concentra will
maintain a current license with Pervasive for
each site during the term of this agreement.
Concentra is responsible for providing HNCIS
a copy of the license.
------------------------------------------------- ---------------------------------------------------
------------------------------------------------- ---------------------------------------------------
Preferred Provider Organization Networks Fee
------------------------------------------------- ---------------------------------------------------
PPO Access Rates For Networks Currently Accessed Current Rates For Distributed Networks:
Through HNCIS:
Internal Networks
Focus from July 1, 1999 until June 30, 2000
3.5% of savings
Focus from July 1, 1999 until December 31, 2000
4.0% of savings
Focus from January 1, 2001 until termination
4.5% of savings
Ohio Comp 5% of PPO Savings
External Networks Currently Distributed by HNCIS
Medview 15% of PPO savings
CCN* 22% of PPO Savings
▇▇ ▇▇▇▇▇▇▇ 25% of PPO Savings
HFN 16% of PPO Savings
Interplan 16% of PPO Savings,
15% in primary
NCC (only Tyson) 18% of PPO Savings
PHN 16% of PPO Savings
Pacific Foundation 16% of PPO Savings
CCN Exceptions:
1. Florida & CA IP @ 30% of PPO Savings
2. New York to be determined
All other networks require execution of a
distribution agreement between HNCIS and
the network before rates can be quoted.
------------------------------------------------- ---------------------------------------------------
Page: 2 of 3
[LOGO OF HNC]
Effective Date as of May 1, 1999
------------------------------------------------- ---------------------------------------------------
PPO Access Rates For Additional Internally Owned
and Managed Networks Implemented in the Future:
. Currently loaded and Maintained By Client . If added, will be negotiated at that time
. Loaded and Maintained By HNCIS
------------------------------------------------- ---------------------------------------------------
PPO Access Rates For Additional External Networks
Not Distributed by HNCIS Implemented in the
Future:
. Loaded and Maintained By HNCIS . If added, will be negotiated at that time
------------------------------------------------- ---------------------------------------------------
Mail-In & Processing Support Services Fees
------------------------------------------------- ---------------------------------------------------
Mail-In Services For Overflow Support at HNCIS
Service Center: . 15% of Savings
. Nurse Consultant Reviews of Difficult Bills . $3.75 plus $1.25 per line
. Review of Overflow Bills
------------------------------------------------- ---------------------------------------------------
Flying Keyers at Client's Site:
. Per Medical ▇▇▇▇ Reviewer . $60 per hour
. Travel and Expenses . Actual Expenses Incurred
------------------------------------------------- ---------------------------------------------------
Other Services & Fees: Fee
------------------------------------------------- ---------------------------------------------------
MedPro Module . $2.50 Per Created or Imported Treatment Plan
------------------------------------------------- ---------------------------------------------------
Fee Negotiation Module: . $2.50 Per Recorded Negotiated Record
Notes:
1 . Utilization of PPO Networks with this
module is prohibited.
2. All PPOs loaded on CRLink must have
an agreement to distribute between
HNC Insurance Solutions and the PPO
before being added to the CRLink
system.
------------------------------------------------- ---------------------------------------------------
------------------------------------------------- ---------------------------------------------------
The parties will agree on SCR agreement items to . Priority Levels 1, 2 & 3 included at no
be billed in an Exhibit to the Definitive additional cost; Priority Level 4 at
Agreement per the following description: $175 per hour + actual expenses incurred
Priorities 1 and 2 have been defined with
priorities and time frames at no charge.
Priority 3 will be included in scheduled
quarterly updates, with primary Concentra
input on priorities. Priority 4 will be
charged at the hourly rate plus expenses.
------------------------------------------------- ---------------------------------------------------
------------------------------------------------- ---------------------------------------------------
Accelerated Support Fee, Invoiced June 30, 1999: . $225,000.00
------------------------------------------------- ---------------------------------------------------
Complex ▇▇▇▇ Review Services Additional 15% of savings (does not include
standard per ▇▇▇▇ fees or PPO fees).
------------------------------------------------- ---------------------------------------------------
Page: 3 of 3
