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EXHIBIT 10.11
TABLE OF CONTENTS
Processing and Services Agreement
1. Definitions
2. Remote Processing
3. Ongoing Basic Support
4. Incremental Support
5 System Modifications
6. Problem Resolution
7 Customer Responsibilities
8 Warranties
9. Limitation of Liability
10. Fees and Charges
11. Term of Agreement
13. Dispute Resolution and Termination
14. Confidentiality
15. Backup and Disaster Recovery and Audit
16. Relationship Management
17. General
Schedule A - Processing and Service Fees
Schedule B - Ongoing Basic Support
Schedule C - Remote Processing
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Schedule D - Work orders
Schedule E - Addendum to Processing and Services Agreement
(to implement client server product at Customer
site)
1. Definitions
2. MPOWER Software; License; Core Services
3. Supplemental Service
5. Acceptance
5. Fees and Charges
6. Problem Resolution
7. Customer Responsibilities
8. Warranties
9. Limitation of Liability
10. Other Provisions
11. Additional Provisions Relating to Termination
12. Provisions Relating to Confidentiality
13. Amendments to Section 13., General
Exhibit 1 - Definition of Core Services
Exhibit 2 - License, Processing and Service Fees
Exhibit 3 - MPOWER Identified Parties for Non-Disclosure
Exhibit 4 - Documentation Outline
Exhibit 5 - Non-Disclosure Agreement
Exhibit 6 - Third Party Vendor Software and Hardware to
Hardware to Implement MPOWER software on Client Server
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PROCESSING AND SERVICES AGREEMENT
This Agreement, effective as of the 1st day of January, 1997 is
entered into by and between Brokerage Services, Incorporated, a New Mexico
corporation with offices at 00000 Xxxxx Xxxxxxxxx, X. X., Xxxxxxxxxxx, Xxx
Xxxxxx, 00000 ("Customer"), and MPOWER Solutions Inc., a Delaware corporation
with offices at 0000 Xxxxxx Xxxxx, X.X, Xxxxxxxxxxx, Xxx Xxxxxx 00000
("MPOWER").
WHEREAS, MPOWER is in the business of providing automated managed
health care information services to businesses providing managed health care
insurance services, and desires to provide such services to Customer, subject to
the terms hereof; and
WHEREAS, Customer is in the business of providing managed health
care and other health benefits administration services to its customers' and
desires to use the services of MPOWER, subject to the terms hereof;
WHEREAS, a Managed Care Management Information Services
Agreement, terminating July 31, 1996 and extended by Letters dated June 27,
1996, August 29, 1996, and December 12, 1996, until December 31, 1996, currently
exist between MPOWER and Customer, and both parties desire to replace that
Agreement in totality.
NOW, THEREFORE, in consideration of the mutual promises made, the
terms and conditions hereunder described and other valuable consideration, the
parries agree as follows:
SECTION 1. DEFINITIONS
1.1 As used in this Agreement, the following terms shall have the meanings
indicated, unless the context clearly requires otherwise;
(a)"Effective Date" shall mean the date first set forth above.
(b) "Expenses" shall mean any out of pocket expenses, including,
without limitation, travel and travel-related expenses, incurred by MPOWER in
connection with the performance of the MPOWER Services pursuant to this
Agreement.
(c) "Fees" shall mean the fees for MPOWER Services set forth in
the Schedule A attached hereto including the Remote Processing Fees, Ongoing
Basic Support Fees, and the Personnel Resources Fees.
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(d) "Incremental Support" shall be any support required by
Customer and agreed to be provided by MPOWER in addition to that provided as
part of Ongoing Basic Support, and which shall be provided for the Personnel
Resources Fees specified in Schedule A and including but not limited to the
services described in Schedule B annexed hereto, and herein, subject to the
terms hereof.
(e) "Member" shall mean an individual who has been or will be
eligible for certain benefits provided by or through Customer, which individual
becomes eligible either (a) directly as the subscriber to a Customer sponsored
and administered insurance or benefit program, or as an eligible employee to an
employer sponsored benefit plan administered by Customer, or Co) indirectly as a
dependent of that subscriber or employee. For example, in a family of four (4)
individuals, where the employee is the primary insured individual, the employee,
the spouse and the two (2) dependent children are each a Member for a total of
four (4) Members:
(f) "Member Month" shall mean, respectively, during any
applicable month, the number of active eligible Customer Members as enrolled and
entered by Customer onto the MPOWER System, adjusted for actual retroactive
Customer Member enrollment or disenrollment occurring in the prior twelve (12)
months. Such retroactive adjustments shall include the twelve (12) months prior
to the Effective Date of this is Agreement. Retroactive disenrollment shall not
apply to a month in which the Member was, at any prior time, eligible for
processing on MPOWER's system under a Customer's subscriber contras, and are
limited to late enrollments and disenrollments by employer groups.
(g) "Ongoing Basic Support" shall be the support provided by
MPOWER and limited by the conditions of Schedule A and which includes services
as described in Schedule B annexed hereto, and herein.
(h) "MPOWER Services" shall mean the Remote Processing Services,
Ongoing Basic Support, Incremental Support and other services provided by
M_POWER to Customer as described herein.
(i) "MPOWER Site" shall mean the site of the MPOWER System,
currently located at 0000 Xxxxxx Xxxxx, X. X., Xxxxxxxxxxx, Xxx Xxxxxx.
(x) "MPOWER Software" shall mean a single database version of the
MPOWER(TM) software which is used to perform the MPOWER Services for Customer,
and any updates, revisions, enhancements, or additions thereto made by MPOWER.
(k) "MPOWER System" shall mean the computer hardware, MPOWER
Software and other hardware and software at the MPOWER Site linking the M. POWER
Site to the communication network and to Customer's facility(ies).
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(l) "Remote Processing Fees" shall mean the Fees for Remote
Processing Services set forth on Schedule A.
(m) "Remote Processing Services" shall mean those MPOWER Services
which allow Customer's use of the MPOWER Software by remote access to the MPOWER
System at the MPOWER Site as described Herein.
(n) "User Documentation" shall mean the User Documentation as
published and updated periodically by MPOWER.
(o)"General System Enhancements" shall mean enhancements,
revisions or updates to the MPOWER Software that are made available generally to
licensees of the MPOWER Software, as and when such enhancement, revisions or
updates are made available generally.
SECTION 2. REMOTE PROCESSING
2.1 Remote Processing Services. MPOWER shall provide Customer
with Remote Processing Services, as described in Schedule C annexed Hereto,
until termination or expiration of this Agreement. In addition, for the Remote
Processing Fees, MPOWER shall provide Customer with the number of hours of
Ongoing Basic Support set forth in Schedule A. Customer shall be required to
continue to receive Remote Processing Services for the term of this Agreement
unless Customer exercises his rights as delineated in Section 12 Conversion to
Customer Processing.
2.2 Remote Processing Fees. The Remote Processing Fees are set
forth in .Schedule A. In addition, Customer shall be responsible for all network
costs related to data communications with the MPOWER Site, including costs of
equipment at the Customer site necessary. for Customer to communicate with the
M-POWER Site, and the installation, operation and maintenance thereof.
2.3 Data Integrity. Customer acknowledges that, the quality and
integrity of all Customer data is solely Customer's responsibility.
2.4 Remote Processing Errors. MPOWER shall use due care in
processing all information transmittal to it by Customer. In the event of any
errors attributable to a malfunction of the MPOWER System, errors of MPOWER
operators, programmers or other personnel, or otherwise attributable to MPOWER,
MPOWER shall correct the errors, at no additional cost to Customer.
SECTION 3. ONGOING BASIC SUPPORT
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3.1 Ongoing Basic Support. MPOWER. shall provide Ongoing Basic
Support subject to the terms hereof. Ongoing Basic Support may include high
level consultation regarding Customer system usage and coordination of the
following: a) Customer requirements, b) training, c) system maintenance and
enhancement support, and other consultation, as more fully described on Schedule
B.
3.2 Customer Support Personnel. Each parry shall designate a
primary liaison as set forth in Section 15.2. The Customer designated personnel
shall support Customer's users, including providing first line ongoing problem
resolution.
3.3 User Documentation. MPOWER shall provide a complete set of
User Documentation, including updates, at least once annually.
SECTION 4. INCREMENTAL SUPPORT
4.1 Incremental Support. If Customer desires to arrange for
Incremental Support, Customer shall submit a work order to M-POWER as defined in
Schedule D.
4.2 Fees for Incremental Support. MPOWER shall provide
Incremental Support on a rime and materials basis at the Personnel Resources
Fees specified in Schedule A.
For services requested by Customer which are beyond the scope of the services
contemplated hereunder, for special circumstances, or if the geographic location
in which any MPOWER Services are to be provided for Customer demands higher
labor or resource costs, MPOWER reserves the right to propose a new fee
structure or different rates.
SECTION 5. SYSTEM MODIFICATIONS
During the term of this Agreement Customer may identify enhancements or
modifications which it desires to have MPOWER make to the MPOWER Software such
as integration to other software systems, modifications for legal requirements
and other functional enhancements. Customer shall be responsible for providing
to MOWER. a description of the changes which Customer requests to be made in the
MPOWER Software. MPOWER shall have the right to design any Customer requested
modifications in a way which, in MPOWER's reasonable opinion, will not adversely
affect the MPOWER Services or the structure or performance of the MPOWER
Software or will have general applicability. In the event MPOWER agrees to
provide such enhancements or modifications to the MPOWER Software, such
enhancements and modifications shall be owned by MPOWER as part of the MPOWER
Software. Resources utilized by MPOWER in providing services pursuant to any
such requests will be charged to Customer as
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Incremental Support, unless expressly agreed to otherwise in writing by the
parties. Customer will also be responsible for any associated Expenses.
In order for these enhancements or modifications to be completed in a
timely and successful manner, Customer will provide MPOWER with applicable
information and access to key personnel during the period these services are
being performed. MPOWER will be entitled to submit various materials, including
time schedules, business requirement, specifications, and test results, for
Customer's review, comment or approval. Customer will respond to each such
request as soon as reasonably practicable, and, in any event, in a time frame
consistent with the time schedules, and shall nor unreasonably withhold any
sign-off or approval requested by MPOWER.
SECTION 6. PROBLEM RESOLUTION
6.1 In the event MPOWER receives notice from Customer of a
Critical Failure (as defined herein), MPOWER agrees to respond to such notice by
assigning a qualified individual to attempt to remedy the Critical Failure, and
agrees to use best efforts to remedy the Critical Failure commensurate with the
severity of the problem and the timeliness and quality of information regarding
the problem received from Customer. A Critical Failure shall be defined as a
failure of the MPOWER System to perform in accordance with the User
Documentation which has a material impact on Customer's mission-critical system
related functions. By way of example, a Critical Failure may include inability
to generate checks, unavailability of the M.POWER System, inability to perform
on-line adjudication of all types of claims, or incorrect adjudication of all
types of claims. MPOWER will use reasonable efforts to correct Non-critical
Failures (defined as any other failure of the M_POWER System) in a timely
manner.
SECTION 7. CUSTOMER RESPONSIBILITIES
7.1 Customer Responsibilities. Customer acknowledges that the
MPOWER Software reflects certain interdependent relationships, such as exist
among the data variables, logic rules and system functions of the MPOWER
Software. Customer further acknowledges that it is required and has a
responsibility to understand such data variables, logic rules and system
functions, and their interdependent relationships, and to define for its
own-purposes such data variables, logic rules and system functions to. the
MPOWER Software in such a way that the MPOWER Software will provide the
functionality desired by Customer. Customer acknowledges that it has or will
hire and will maintain on its staff personnel who are able to understand and
define such data variables, logic rules, system functions and interdependent
relationships. Customer further acknowledges that, even though. MPOWER may
assist Customer personnel in performing these tasks, the responsibility for the
effective definition and maintenance of these data variables, logic rules
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and system functions resides with Customer and not with MPOWER, unless Customer
specifically requests MPOWER to perform these tasks at the Incremental Support
rates.
7.2 Customer Data. Customer shall be responsible for inputting
and ensuring the accuracy, validity and completeness of all data variables,
logic rules, system functions and Customer data, including but not limited to
group, subscriber, Member, provider, utilization, encounter, claims, capitation,
fund accounting, billing, collection, broker, benefits, product contract,
provider contract, provider fees, standard business measures, and other similar
or related data. Customer shall also be responsible for inputting and ensuring,
the accuracy, validity and completeness of all user-defined report definitions,
all report and batch production job specifications and priority scheduling
criteria. Customer shall also be responsible for initiating, monitoring,
operating, printing and ensuring the accuracy, validity, and completeness of all
print outputs and file downloads, such as but limited to all reports, premium
bills, checks, and the like, determining how many and on what print stock such
outputs are to be printed or into which files or programs on Customer-
controlled computers such files are to be downloaded and manipulated, at
Customer's own initiative, responsibility and risk. Customer hereby acknowledges
responsibility for generally controlling all aspects related to the production,
distribution and control of such outputs. Customer further acknowledges that,
notwithstanding the responsibility of MPOWER to have used due care and diligence
in the design, programming, documentation and operation of the System, the
accuracy of Customer's data base within the MPOWER Software and the accuracy of
the several outputs of the MPOWER Software, including bur not limited to,
outputs that control the billing, receipt or expenditure of moneys, will be
dependent on the accuracy and use of the data variables, logic rules, system
functions and Customer data input into the MPOWER Software by Customer and
verified by Customer.
7.3 Other Customer Obligations. In addition to its other
obligations hereunder, Customer will on a timely basis:
a) Establish appropriate priorities for Customer, on a
regular basis and no less frequently than every three months, that relate to
MPOWER Services and communicate the same to MPOWER. Customer recognizes that
changes in such priorities may result in additional fees hereunder for
additional staff, as Incremental Support, or reordering of other priorities to
provide MPOWER Services within the current Fee structure.
(b) Cooperate with MPOWER by, among other things, making
available, as reasonably requested by MPOWER, management decisions,'
information, approvals, and acceptances in order that MPOWER may properly
accomplish its obligations and responsibilities hereunder;
(c) Carefully inspect and review all MPOWER generated
reports and other output and notify M-POWER of any incorrect reports or output.
MPOWER
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(d) Personalize, maintain, reproduce and distribute
(solely for Customer's internal use) procedure manuals and documentation used by
Customer personnel in connection with the MPOWER Services hereunder.
(e) Train applicable Customer personnel to properly
prepare input for and to effectively utilize output from the systems operated by
MPOWER hereunder.
(f) Pay all costs of acquisition, installation, use and
maintenance of equipment at Customer's site, as required for the performance of
the MPOWER Services.
(g) Such other responsibilities as set forth herein.
Customer agrees that to the extent its failure to meet its
obligations set forth in this Section 7.3 affects the ability of MPOWER to
perform MPOWER's obligations under this Agreement, MPOWER shall be relieved of
such obligations, and Customer shall indemnify MPOWER against any claims or
liabilities arising, out of such failure by Customer.
7.4 Reprocessing or Reconstructing of Data. During any period of
MPOWER Processing to the extent that any Customer data must be corrected,
recreated, restored or reprocessed due to the fault or negligence of Customer,
its employees or agents, or by a breach by Customer of any of its obligations
hereunder, MPOWER will do so, and in such event Customer shall pay MPOWER at the
Personnel Resources Rates and reimburse MPOWER for any costs incurred by MPOWER
in correcting, recreating, restoring or reprocessing such data or in providing
assistance therewith.
SECTION 8. WARRANTIES
MPOWER warrants that it either owns the rights to the MPOWER
Software or has the right to perform the MPOWER Services herein, and that it
either owns or has licensed in the manner contemplated by this Agreement any
other software used in the provision of the MPOWER Services to Customer. MPOWER
agrees to defend Customer against all claims arising from the infringement by
the MPOWER Software of the rights of third parties, provided that Customer
notifies MPOWER in writing within seventy-two (72) hours of the receipt by
Customer of any such claim or notice of any such claim and permits MPOWER upon
request, and at MPOWER's cost and expense, to assume and control the defense or
settlement thereof Customer agrees to cooperate with MPOWER in every reasonable
manner in the defense of such claim. In defending or settling any such claim
MPOWER may elect, at its sole discretion, to (i) obtain the right of continued
use of such MPOWER Software or pare thereof, which is alleged to be infringing
or (ii) replace or modify such MPOWER Software, or part thereof, so as to avoid
such claim of infringement, or (iii) terminate this Agreement, in which event
MPOWER shall have no further obligation or liability to Customer with respect to
the MPOWER Services.
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MPOWER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EXCEPT THOSE
WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT. MPOWER SPECIFICALLY DISCLAIMS
ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PUP, POSE OF THE MPOWER SERVICES OR THE MPOWER SYSTEM, OR THE
COMPLIANCE OF THE FOREGOING WITH ANY LAW, REGULATIONS OR ORDER.
SECTION 9. LIMITATION OF LIABILITY
NEITHER PARTY SHALL HAVE LIABILITY WITH RESPECT TO ITS
OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY,
INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY
SUCH DAMAGES. MPOWER SHALL NOT BE LIABLE FOB ANY CLAIM ARISING FROM THE USE OF
SOFTWARE OR DATA WHICH HAS BEEN MODIFIED BY ANYONE OTHER THAN MPOWER, ITS
AGENTS, ASSIGNS OR SUBCONTRACTORS, NOR FOR ANY CLAIM ARISING FROM THE USE OF ANY
SOFTWARE OR EQUIPMENT DEVELOPED OR MODIFIED BY CUSTOMER OR WHICH HAS BEEN
PROVIDED TO OR ACQUIRED BY CUSTOMER UNDER ANY LICENSE OR OTHERWISE FROM ANY
THIRD PARTY.
MPOWER'S LIABILITY FOR THE CORRECTION OF ERRORS IN THE PROCESSING
OF CUSTOMER'S DATA AND FILES IS LIMITED, AS PROVIDED IN SECTION 2.4, TO
CORRECTING THE ERRORS AND REPROCESSING THE INFORMATION IF SUCH ERRORS ARE XXXXXX
TO MPOWER'S ATTENTION IN A TIMELY MANNER. IN NO EVENT SHALL MPOWER'S TOTAL
LIABILITY TO CUSTOMER RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT
OR OTHERWISE, EXCEED THE SUM OF THE AMOUNTS PAID BY CUSTOMER TO MPOWER FOR THE
SPECIFIC PRODUCT OR SERVICE AND IMPLEMENTATION WHICH IS THE SUBJECT OF THE
ACTION OR CLAIM DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE BREACH FOR
WHICH THE DAMAGES ARE CLAIMED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTIONS
OR CLAIM IN THE AGGREGATE INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER
TORTS. FURTHER NO CAUSE OF ACTION WHICH ACCRUED MORE THAN TWO (2) YEARS PRIOR TO
THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST
MPOWER.
MPOWER hereby is not assuming or otherwise responsible for,
expressly or implicitly, any obligation or liability of any kind whatsoever of
Customer. Customer shall
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and hereby does agree to indemnify and hold MPOWER harmless from any and all
claims, lawsuits, liabilities, expenses, costs, damages and fees arising from or
in connection with Customer's breach of its obligations hereunder or relative to
Customer's provision of services or products to any third party.
SECTION 10. FEES AND CHARGES
10.1 Fees and Charges. The Fees for the MPOWER Services are
described in Schedule A attached hereto.
10.2 Timeliness of Payment. All Fees payable by Customer
hereunder shall be paid by Customer on a monthly basis. The Remote Processing
Fees shall be due and payable in advance at the beginning of each month. Any
other sum due M_POWER hereunder for which a time for payment is not otherwise
specified will be due and payable within twenty (20) days after the date of an
invoice therefor from MPOWER. If Customer fails to pay any amount due within
thirty (30) days from the due date, late charges of 1 1/2% per month shall also
become payable by Customer to MPOWER. In addition, failure of Customer to fully
pay any amount due within sixty (60) days after the due date shall be deemed a
material breach of this Agreement and shall be sufficient cause for immediate
termination hereof. If Customer fails to pay, when due, any amount payable
hereunder or fails to fully perform its obligations hereunder, Customer agrees
to pay, in addition to any amount past due, plus interest accrued thereon, all
reasonable expenses incurred by MPOWER in enforcing this Agreement including but
not limited to all expenses of any legal proceeding related thereto and all
reasonable attorneys' fees incurred in connection therewith. No failure by
MPOWER to request any such payment or to demand any such performance shall be
deemed a waiver by MPOWER of Customer's obligations hereunder or a waiver of
MPOWER's right to terminate this Agreement.
10.3 Fee Changes. If, during the term of this Agreement, the
Consumer Price Index for All Urban Consumers, U.S. City Average, Other Goods and
Services published by the Bureau of Labor Statistics of the Department of Labor
(the "CPI"), shall at any anniversary of the Effective Date (the "Current
Index") be higher than the CPI twelve (12) months prior thereto (the "Base
Index"), then, effective as of such anniversary, the then current Ongoing Basic
Support Fees, and Personnel Resources Fees, may be increased by one and a half
(1.5x) the percentage that the Current Index increased from the Base Index, but
not to exceed 10%. In addition, effective as of such anniversary, MPOWER may
increase the Processing Fees by the percentage (1x) that the Current Index
increased from the Base Index. MPOWER shall notify Customer of each increase by
a written statement. MPOWER's notice may be given after the applicable
anniversary date of the increase, and Customer shall pay MPOWER the accrued
adjustment of the months elapsed between the effective date of the increase and
MPOWER's notice.
10.4 Taxes. There will be added to may charges under this
Agreement, and
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Customer will pay to MPOWER, amounts equal to any taxes, however designated or
levied, based upon such charges, or upon this Agreement or the services or
materials provided hereunder, or Customer's use thereof, including state and
local sales, use, privilege or excise taxes based on gross revenue, and any
taxes or amounts in lieu thereof paid or payable by MPOWER in respect of the
foregoing, but excluding any franchise taxes, taxes based on the adjusted gross
income of MPOWER, and employee withholding, FICA, and other taxes relating to
MPOWER personnel performing services hereunder.
SECTION 11. TERM OF AGREEMENT
ll.1 Term of Agreement. The term of this Agreement shall commence
on the Effective Date and shall continue for thirty six (36) months unless
otherwise terminated pursuant to this Agreement. The agreement will be extended
for an additional 36 months upon the mutual written agreement of the parties.
The parties mutually agree to inform the other party, at least 120 days prior to
the Termination of this Agreement, as to whether or not they wish to negotiate a
new agreement which would be effective upon the Termination of this Agreement.
SECTION 12. CONVERSION TO CUSTOMER PROCESSING
12.1 Customer's Right to Convert at Will. At any time during the
initial or extended term of this Agreement, Customer may provide MPOWER with one
hundred- twenty (120) days notice of its intent to execute its right to license
the MPOWER software to run on Customer's own IBM hardware. At that time,
Customer and MPOWER will execute Schedule E MPOWER's License Agreement.
SECTION 13. DISPUTE RESOLUTION AND TERMINATION.
13.1 Dispute Resolution. In the event of a dispute between the
parties arising out of or relating to this Agreement, then, upon the written
request of either party, each of the parries will appoint a designated
representative to endeavor to resolve such dispute. The designated
representatives will negotiate in good faith to resolve the dispute. Initially,
disputes will be bandied by the M. POWER Director of Relationship Management and
the Customer's PRESIDENT, DEVELOPMENT or his/her equivalent, and if they are
unable to reach a resolution, the dispute will be presented to the COO of MPOWER
and the Customer for resolution. If the xxxxxx has not been resolved pursuant to
the aforesaid mediation procedure within sixty (60) days of the commencement of
such procedure (which period may be extended by mutual agreement), the
controversy shall be settled by arbitration in accordance with the American
Arbitration Association. (the "Association) under the Commercial Arbitration
Rules of the Association there in effect, by a panel of three (3) arbitrators
knowledgeable in the computer area. The arbitration shall be governed by the
United States Arbitration Act, 9 U.S.C. Sec. 1-16, and judgment upon the award
by the arbitrator may be entered by any court having
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jurisdiction thereof. The place of arbitration shall be Albuquerque, New Mexico.
Each party shall pay its own costs and expenses.
13.2 Termination for Cause. In the event that either parry hereto
materially or repeatedly defaults in the performance of any of its duties or
obligations hereunder (except for a default in payments to MPOWER) and does not
substantially cure such default within one hundred twenty (120) days after being
given written notice specifying the default, or, with respect to those defaults
which cannot reasonably be cured within one hundred twenty (120) days, if the
defaulting parry fails to proceed promptly after being given such notice to
commence curing the default and thereafter to proceed to cure the same, then the
parry not in default may, by giving written notice thereof to the defaulting
parry, terminate this Agreement as of a date specified in such notice of
termination.
13.3 Termination for Nonpayment. In the event that Customer
defaults in the payment when due of any amount due to MPOWER hereunder, and does
not cure such default within sixty (60) days after the date of receipt the
invoice, then MPOWER may, by giving written notice thereof to Customer,
terminate this Agreement as of a date specified in such notice of termination.
13.4 Termination for Relocation. Should MPOWER relocate "it's"
service Bureau facility and resources outside the state of New Mexico, then
customer may terminate this Agreement without penalty upon 90 days notice. Such
notification, however, must be given within 120 days of such relocation
13.5 Termination for Insolvency. In the event that either parry
hereto becomes or is declared insolvent or bankrupt, is the subject of any
proceedings relating to its liquidation, insolvency or for the appointment of a
receiver or similar officer for it, makes an assignment for the benefit of all
or substantially all of its creditors, or enters into an agreement for the.
composition, extension, or readjustment of all or substantially all of its
obligations, then the other party hereto may, by giving written notice thereof
to such party, terminate this Agreement as of a date specified in such notice of
termination
13.6 Termination Assistance. Upon the termination of this
Agreement for any reason, MPOWER will provide to Customer such termination
assistance, at MPOWER's Personnel Resources Rate plus Expenses, as may be
reasonably requested by Customer and scheduled by M_POWER. if this Agreement is
terminated, then Customer will pay MPOWER, on the first day of each month and as
a condition to MPOWER's obligation to provide such termination assistance to
Customer during that month, an amount equal to MPOWER's reasonable estimate of
the total amount payable to MPOWER for such termination assistance for that
month.
13.7 Outstanding Amounts. Termination of this Agreement shall
entitle MPOWER to payment and Customer shall be obligated to pay for the
provisions of any and all
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MPOWER Services rendered by MPOWER under this Agreement prior to the date of
such termination.
13.8 Customer Data. In the event that either party terminates
this Agreement, Customer retains ownership of all membership data and all other
Customer data in the MPOWER System. MPOWER shall return same to Customer at the
time of termination in MPOWER's standard tape record format. Any support by
MPOWER to provide data in other than MPOWER's standard format shall be billed as
Termination Assistance per section 13.5 above.
SECTION 14. CONFIDENTIALITY
14.1 Confidential Information. "Confidential Information" shall
mean information such as customer lists, business plans, operation plans, client
information, application software programs and documentation licensed by third
parties to Customer or MPOWER, the MPOWER Software, and all other materials
relating to MPOWER's business or the business of Customer, which are designated
in writing as confidential at the time of disclosure by Customer or MPOWER, or
is identified orally at the time of the disclosure as confidential and confirmed
in writing within one week of such disclosure, and which are disclosed by
Customer or MPOWER to the other party, its employees, agents, contractors,
assignees or successors in the conduct of business under this Agreement.
14.2 Standard of Care. Each party hereby agrees that and its
respective officers, employees, agents, contractors, assignees and successors
shall (i) keep all Confidential Information received from the other party
strictly confidential, (ii) instruct their officers, employees, agent's,
contractors, and permitted assignees and successors to use the same degree of
care and discretion with respect to the Confidential Information of the other
parry, or of any third party utilized hereunder, that MPOWER and Customer each
require with respect to their own most confidential information, (iii) use and
disclosure of such information solely for the purposes and in the manner set
forth in this Agreement, (iv) not disclose any such information to any other
person, corporation, governmental agency or other entity without the express
written permission of the other and (v) institute the necessary security
policies and procedures to meet its obligations hereunder. Notwithstanding the
foregoing, the confidentiality obligations set forth in this Section 12 will not
apply to any information which the recipient parry can establish to have (x)
become publicly available without breach of this Agreement, (y) been
independently developed by the recipient parry outside the scope of this
Agreement and without reference to the Confidential Information received under
this Agreement, or (z) been rightfully obtained by the recipient parry from
third parries which are not obligated to protect its confidentiality.
SECTION 15. BACKUP AND DISASTER RECOVERY SERVICES AND AUDIT
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15.1 Backup. MPOWER will establish and maintain reasonable
safeguards against the destruction, loss or alteration of Customer data in the
possession of MPOWER. In the event that additional safeguards for Customer data
are reasonably requested by Customer, MPOWER will provide such additional
safeguards and Customer shall reimburse MPOWER for any additional costs incurred
by MPOWER.
15.2 Disaster Recovery. M.POWER shall maintain an agreement or
arrangement with a third party to provide MPOWER a disaster recovery site with
facilities sufficient to enable MPOWER to provide a continuation of MPOWER
Services in the event the MPOWER System is unavailable for an extended period
of time.
15.3 Notification. MPOWER will provide customer with a current
copy of MPOWER's Backup and Disaster Recovery procedures and the results from
Annual Testing and EDI Audit.
SECTION 16. RELATIONSHIP MANAGEMENT
16.1 Meetings. MPOWER and Customer agree to regularly discuss business
and relationship strategies affecting both parties. MPOWER and Customer further
agree to have regularly scheduled communications to summarize current
activities, performance results, error corrections and work efforts, as well as
the future planned activities.
16.2 Liaison. During the term of this Agreement, each party will
provide a liaison who (i) will have overall management responsibility for the
performance by the party hereunder, (ii) will have primary operational
responsibility, and (iii) will serve as the party's primary liaison with the
other party with respect to performance under this Agreement. Customer may have
primary liaison replaced for cause.
SECTION 17. GENERAL
17.1 Independent Contractor. MPOWER, in performing its
obligations under this Agreement, is acting only as an independent contractor of
Customer and the rights and responsibilities of the parties shall be determined
accordingly.
17.2 Force Majeure. Each party hereto shall be excused from
performance hereunder for any period and to the extent that it is prevented from
performing any services pursuant hereto, in whole or in part, as a result of
delays caused by the other parry or an act of God, war, civil disturbance, court
order, labor dispute of the other parry or any third party, or other cause
beyond its reasonable control and which it could not have prevented by
reasonable precautions, and such nonperformance shall not be a default hereunder
or a ground for termination hereof. In the event that either party is excused
from performance hereunder
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pursuant co this Section, then that party shall cake all reasonable actions to
resume, or provide alternative performance of its obligations hereunder as soon
as feasible.
17.3 Governing Law: Jurisdiction and Venue. This Agreement shall be
construed and enforced according to the laws of the State of New Mexico without
reference to principles of conflicts of laws. The sole and exclusive forum for
any disputes arising out of or relating to this Agreement shall be in a court of
competent jurisdiction in the City of Albuquerque, New Mexico, and the parties
hereby irrevocably consent to such jurisdiction.
17.4 Notices. All notices and other communications under this Agreement
shall be in writing mad may be girth by any of the following methods: (a)
personal delivery against signed receipt; (b) facsimile transmission; (c)
registered or certified mail, postage prepaid, return receipt requested; or (d)
over-night delivery service. Notices shall be sent to the appropriate parry at
its address or facsimile number given below (or at such other address or
facsimile number for such party as shall be specified by notice given
hereunder):
17.4.1. If to MPOWER, to:
MPOWER Solutions Inc.
0000 Xxxxxx Xxxxx, X. X.
Xxxxxxxxxxx, XX 00000
17.4.2. If to Customer, to:
Brokerage Services, Inc.
00000 Xxxxx Xxxxxxxxx, X. X.,
Xxxxxxxxxxx, Xxx Xxxxxx, 00000
All such notices and communications shall be deemed delivered upon (a) actual
receipt thereof by the addressee, (b) actual delivery thereof to the appropriate
address, or (c) in the case of a facsimile transmission, upon transmission
thereof: by the sender and issuance by the transmitting machine of a
confirmation slip confirming that the number of pages constituting the notice
have been transmitted without error. In the case of notices sent by facsimile
transmission, the sender shall contemporaneously dispatch a copy of the notice
to the addressee at the address(es) provided for above by an overnight courier
service. However, such mailing shall in no way alter the time at which the
facsimile notice is deemed received.
17.5 Insurance. During the term of this Agreement, each parry
will insurance coverage, such coverage to bear the risks associated with the
performance of this Agreement as is reasonable, prudent and advisable under the
circumstances and will provide evidence of or otherwise demonstrate such
capability to the other party upon the other party's reasonable request from
time to time.
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17.6 Assignment. This Agreement and Customer's rights or
obligations hereunder may not be assigned or transferred by Customer to another
entity whether by assignment, merger, transfer of assets, sale of stock of
Customer, operation of law or otherwise without the prior written consent of M.
POWER. MPOWER may assign this Agreement upon notice to, but without the consent
of, Customer. This Agreement shall inure to the benefit of and be binding upon
the parties, their permitted successors and their permitted assigns.
17.7 Hiring of Employees. Except as otherwise provided in this
Agreement, MPOWER and Customer each agree that, during the term of this
Agreement arid for three years thereafter, it shall not, except with the prior
written consent of the other, offer employment to or employ any person employed
then or within the preceding twelve months by the other. This shall not apply to
employees of either party who have termination agreements which specifically
allow their hiring or retention as consultants by the other party.
17.8 Entire Agreement. This Agreement, including any Schedules
referred to herein and attached hereto, constitute the entire agreement between
the parties hereto with respect to the subject matter hereof and there are no
representations, understandings or agreements relative hereto which are not
fully expressed herein. No amendment, change, waiver, or discharge hereof shall
be valid unless in writing and signed by an authorized representative of the
party against which such amendment, change, waiver, or discharge is sought to be
enforced.
17.9 General. All provisions of this Agreement relating to
confidentiality, nondisclosure, publicity, proprietary rights-and indemnity
shall survive the cancellation, termination or expiration of this Agreement. The
waiver or failure of either parry to exercise any right in any instance shall
not be deemed a waive? of any other or further right hereunder. If for any
reason a court of competent jurisdiction finds any provision of this Agreement,
or portion thereof to be unenforceable, that provision shall be enforced to the
maximum extent permissible so as to effect the intent of the parties, and the
remainder of this Agreement shall continue in full force and effect. The section
headings used herein are for reference and convenience only and shall not enter
into the interpretation thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
MPOWER Solutions Inc. CUSTOMER
By: /s/ XXXXXXX X. XXXXXX By: /s/ XXXXX X. XXXXX
-------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
------------------------ -----------------------------------
Title: EVP Title: Exec VP
----------------------- ----------------------------------
Date 1-10-97 Date: 1-10-97
------------------------- -----------------------------------
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SCHEDULE A
PROCESSING AND SERVICE FEES
REMOTE PROCESSING FEES
The Processing Fee shall be $0.65 per member per month. Fees for Life Insurance
and/or Dental only members, is $.22.
As part of the service provided by MPOWER, included in this processing fee,
Ongoing Basic Support as defined in Schedule B.
PERSONNEL RESOURCES FEES - STANDARD RATE
The Personnel Resources Fee for the year 1996 is $100.00/hour for most
of MPOWER Staff with a Fee of $150/hour for billable support provided by
MPOWER senior management and lead technical staff. Personnel Resources
provided include customer support personnel, analysis and programming
personnel used for initial implementation and ongoing maintenance and
enhancement activities directly related to the MPOWER System.
EXPENSES
Customer shall reimburse MPOWER for reasonable MPOWER travel and out of
pocket expenses for which advance approval has been received from the
Customer either as part of and or incidental to an approved Work Order
(Schedule X), or for a specific trip requested by Customer.
SPECIAL PROJECT FEES
Customer arid MPOWER agree to consider "Special Projects" which may be mutually
beneficial. Customer and MPOWER may establish a separate "preferred" hourly rate
for MPOWER services related to such projects. Operating guidelines for
establishing and monitoring such projects shall he specified in separate letter
agreements between the parties.
Other Services
At the request of Customer, MPOWER may provide other services, such as the
printing of year end Provider 1099 Tax Forms. MPOWER shall invoice Customer for
any direct cost, such as the expense of pre-printed forms, associated with these
services.
* Confidential Treatment Requested
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SCHEDULE B
ONGOING BASIC SUPPORT
Ongoing Basic Support includes the following services directly related to the
MPOWER(TM) System:
Customer Support (telephone and on-site).
o Access to the MPOWER Help Desk for routine simple queries and
logging of issues
o Resolution of issues relating to production status
o Account Management and coordination
Work Order Support
o Assistance with. preliminary analysis to support creation of a
Work Order
Ongoing Basic Support does not include the following services:
o Assistance with actual coding of setups or UVAMs or development of
setups or UVAMs for new Benefit Plans
o Actual-analysis, design or programming and test of any
Customer-requested enhancements to the System
o Formal training
INCREMENTAL SUPPORT
Subject to the specifics of any given Work Order, Incremental Support includes
the following services directly related to the MPOWER(TM) System:
Customer Support (on-site and telephone)
- System set-ups
- Ad-Hoc reporting
- Possible problem analysis
- Documentation
- Training
- Appropriate overlap and backup of Analysis
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Analysis
- Possible problem analysis
- Business requirements definition
- System testing
- Business consulting regarding use of system
- Documentation
- Appropriate overlap and backup of Customer Support and Programming
Programming
- Programming of client prioritized business requirements
- Possible problem analysis
- Documentation
- Appropriate overlap and backup of Analysis and Customer Support
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SCHEDULE C
REMOTE PROCESSING
I. ONLINE AVAILABILITY
The MPOWER System shall achieve [*] percent ([*]%) availability between
the hours of 7:30 a.m. and 6:00 p.m. Mountain Time weekdays, Saturdays
between the hours of 6:00 a.m. and 12:00 noon. Mountain Time, excluding
MPOWER holidays, and during any additionally requested and agreed upon
on-line processing hours.
Measurement
Availability shall be calculated on a monthly basis utilizing MPOWER's
standard availability performance cools. The MPOWER System availability
shall be measured at MPOWER's system in Albuquerque, NM and MPOWER shall
not be penalized for non-availability of the MPOWER System for reasons
not in MPOWER's direct control.
In addition, the following conditions shall be calculated as if the
MPOWER System were 100% available:
1. Customer has requested on-line downtime during normal operating
hours.
2. The parties have mutually agreed to a reorganization/purge of
client data during normal Saturday operating hours.
II ONLINE PERFORMANCE
The MPOWER System shall achieve three (3) second response time [*]
percent ([*]) of the time during the Working Hours.
Measurement
Response time shall be calculated on a monthly basis utilizing MPOWER's
standard on-line performance measurement performance tools. The MPOWER
System on-line performance shall be measured at MPOWER's system in
Albuquerque, NM and MPOWER shall not be penalized for response time
delays of the M_POWER System for reasons not in MPOWER's direct control.
The parties understand that running Void Check, Batch Claim (for EDI
claims), batch jobs or Reprocessing Claim transactions, RAC Output
(reporting) and UVAM generation during normal on-line hours will
adversely affect response time.
* Confidential Treatment Requested
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Accordingly, if Customer chooses to run the aforementioned transactions
during normal on-line hours, for purposes of the response time
calculation said time shall be deemed to have met the 3 second standard.
On-line Availability of Information: MPOWER will maintain on-line
availability of claim information for a period of up to twenty-four (24)
months from the date of payment in the MPOWER System, unless otherwise
agreed by the parties. Other data will be archived on a regular basis
based upon criteria to be mutually agreed to within the first 60 days of
the contract.
MPOWER Current Standard On-Line Availability Fees for Remote Processing.
Customer may request that the MPOWER System be available for additional
hours for Remote Processing. Subject to the mutual agreement of the
parties as to the timing of such additional hours of system
availability, Customer will pay MPOWER at MPOWER's then standard fees
for such service. MPOWER's current standard fee for additional requested
on-line processing time is $[*] per hour, with a minimum of two (2)
hours, plus any personnel resource fees for incremental support.
MPOWER's remote processing service will accommodate processing of
customer membership up to [*] members, should client grow membership
to that level.
MPOWER will make ANSI Standard EDI capabilities available to customer
within 1 year of the contract date. Such services may be chargeable to
customer at rates not to exceed those charged to other customers of
MPOWER.
* Confidential Treatment Requested
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SCHEDULE D
WORK ORDERS
A work order is the document the Customer uses to authorize MPOWER to perform
Incremental Support ("Work Order"). Some examples of Incremental Services are
modifications, enhancements, conversion support, additional training, etc. to
the extent that such activities require MPOWER. resource commitments beyond
those provided as part of Ongoing Basic Support. The steps in completing a Work
Order are is follows:
Step 1. The Customer determines that Incremental Support is required from
MPOWER.
Step 2. The Customer, assisted by M. POWER, if requested and as part of
provision of Ongoing Basic Support, provides, in writing, the high level
functional requirements for the desired Incremental Support.
Step 3. Provided Customer has provided sufficient information in Step 2.,
MPOWER creates a project plan. (IF information is incomplete, Step 2.
Needs to be repeated or expanded upon.) The contents of a typical
project plan are given below:
Contents of Typical Project Plan
I. Statement of work, including description of task, goal, scope of
effort, assumptions/constraints, approach, success factors, and
II. Term
III. Estimated Hours (if applicable)
IV. Staffing and Roles
V. Schedule and Milestones
VI. Deliverables
VII. Estimated Non-Personnel Charges (such. as, it: applicable, but
not limited to, supplemental computer processing usage,
telecommunications charges, physical materials, special
equipment, etc.)
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Step 4. Customer reviews project plan. If necessary based on Customer's
comments, MPOWER revises project plan.
Step 5. MPOWER prepares a Work Order (see sample on the next page) with the
project plan as an attachment.
Step 6. Customer approves Work Order.
Step 7. Work begins upon receipt by MPOWER. of an approved Work Order.
NOTE: Any change in scope (e.g., a modification or an expansion to the
functional requirements in Step 2) to an existing Work Order requires
either a new Work Order or a signed amendment to the existing Work
Order and a repeat of the above steps. Customer may execute Work Orders
for initial phases of a project in order to arrange for MPOWER to
provide analysis support of the creation of functional specifications.
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Sample Work Order
[Date]
[Customer Name]
[Customer Address}
Re: Work Order Number [ Insert sequential number of Work Order]
Dear [Customer Authorized Signator]:
This letter is a "Work Order" in accordance with the Processing and
Services Agreement between [Customer Name] and MPOWER, dated [date of
Agreement] ("Agreement"), and confirms the agreements reached between
you and MPOWER for the services specified herein.
[Customer] Coordinator: [name]
MPOWER Coordinator: [name]
Task Description: See attached Project Plan.
Term: See Attached Project Plan.
Rate.: Per Schedule A of the Agreement dated [date] or by special
agreement of the parties pursuant to Schedule A with respect to Special
Project Fees, the rate shall be [add appropriate rate].
Estimated Charge: [state if applicable]
Assignment Location: MPOWER Headquarters, Albuquerque, NM.
Deliverables: See attached Project Plan.
Production Impact: [state].
Travel Expenses: Shall be reimbursed in accordance with Schedule A of
the Agreement dated [date].
Other:
[Customer name] hereby represents that it has the right and authority to
execute this Work Order and agrees to be bound by the terms and
conditions of both the
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Agreement and this Work Order. The terms and conditions of this Work
Order shall take precedence over any conflicting terms and conditions
contained in the Master Agreement. Please indicate [Customer's name]'s
acceptance of this is Work Order by returning one signed copy to MPOWER.
Sincerely,
MPOWER Solutions Inc.
By:____________________________
Name:__________________________
Title:_________________________
Accepted on this___________day of____________, 19__.
[CUSTOMER NAME]
By:____________________________
Name:__________________________
Title:_________________________
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Schedule E
ADDENDUM TO PROCESSING AND SERVICES AGREEMENT
This Agreement is entered into as of this ___________ day of
___________, _____ , by and between Brokerage Services, Incorporated, a New
Mexico corporation with its principal place of business located at 00000 Xxxxx
Xxxx., XX, Xxxxxxxxxxx, Xxx Xxxxxx 87112(hereinafter referred to as
"Customer"),and MPOWER Solutions Inc., a Delaware corporation with its principal
place of business located at 0000 Xxxxxx Xxxxx, X. X., Xxxxxxxxxxx, Xxx Xxxxxx
00000 (hereinafter referred to as "MPOWER").
WHEREAS, MPOWER is in the business of providing automated managed health
care information services and licensing software to businesses providing managed
health care and insurance services, and desires to provide such services, and
license such software, to Customer, subject to the terms hereof; and
WHEREAS, Customer is in the business of providing managed health care
and insurance services to its customers and desires to use the services of,
and/or software licensed by MPOWER, subject to the terms hereof; and
WHEREAS, Customer has previously engaged MPOWER to provide Remote
Processing Services as set forth in the Agreement dated January 1, 1997, 1996,
and whereas Customer wishes to invoke Section 12 of said Agreement.
NOW, THEREFORE, in consideration of the mutual promises made, the terms
and conditions hereunder described and other valuable consideration?? the
parties agree as follows:
1. DEFINITIONS
1.1 As used in this Agreement, the following terms shall have the
meanings indicated unless the context clearly requires otherwise;
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(a) "Core Services" shall mean those services provided by MPOWER
(as described and set forth in Exhibit 1) in consideration of Customer's payment
of the License Fees.
(b) A "Critical Failure" shall mean a verifiable Nonconformity
in the Shelf Version of the MPOWER Software (or verifiable failure of the MPOWER
System hardware if the problem arises with respect to Remote Processing) which
has a material impact on Customer's mission critical system related functions.
By way of example, a Critical Failure may include the inability of Customer to
generate checks, complete failure of availability of the on-line system,
inability to perform on-line adjudication of any types of claims, or incorrect
adjudication of any types of claims.
(c) "Customer Processing" shall mean the use of the MPOWER
Software on Customer equipment at a Customer site, as set forth herein.
(d) "Derivative Work" shall mean any computer program,
application, interface or related documentation of any kind that is based, to
any extent, on MPOWER Software, or any component part thereof.
(e) "Documentation" shall mean collectively, the System
Documentation, the Functional Documentation and the User Documentation.
(f) "Effective Date" shall mean the date first set forth above.
(g) "Expenses" shall mean any reasonable out of pocket expenses,
including, travel and travel-related expenses, incurred by MPOWER in connection
with the performance of this Agreement.
(h) "Fees" shall mean the fees for MPOWER Services as described
and set forth in Exhibit 2 of this Addendum attached hereto.
(i) "General System Enhancements" shall mean enhancements,
revisions or updates to the MPOWER Software that are made available generally to
licensees of the MPOWER Software as part of the Maintenance Fee (MF), as and
when such enhancements, revisions or updates are made available generally,
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and shall not include any separate products where MPOWER charges a separate
license fee to its licensees.
(j) "Implementation" shall mean the conversion and installation
of Customer's managed health care and/or insurance processing from remote
processing to Customer Processing using the MPOWER(TM) system as set forth in
this agreement.
(k) "Implementation Date" shall mean the actual date that the
first Member transaction is processed, by Customer at Customer's site.
(1) "License" shall mean the license granted by MPOWER to
Customer for the MPOWER Software, to the extent set forth herein.
(m) "License Fees" shall include the Initial License Fee(s)
("ILF"), the Maintenance Fee ("MF"), and any Transfer Fee(s), as described in
Exhibit 2 herein.
(n) "Maintenance Services" shall include the Maintenance Support
Services".
(o) "Maintenance Support Services" shall mean the
post-production services provided by MPOWER as part of the Core Services that do
not provide for upgrades or general enhancements to the MPOWER Software, which
are provided through the Maintenance FEE.
(p) "Member" shall mean an individual who is as of a certain
effective date eligible for certain benefits provided by or through Customer or
a Related Party, which individual becomes eligible either (a) directly as the
subscriber to a Customer or Related Party sponsored and administered insurance
or benefit program, (b) as an eligible employee to an employer sponsored benefit
plan administered by Customer or a Related Party, or (c) as a beneficiary of a
government sponsored benefit plan, or (d) indirectly as a dependent of that
subscriber, employee or beneficiary. For example, in a family of four (4)
individuals, where the employee is the primary participant individual, the
employee, the spouse and the two (2) dependent children are each a Member for a
total of four (4) Members.
(q) "Member Month" shall mean, respectively, as of
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the first of each applicable month, the number of active eligible Members as
enrolled and entered by Customer, as of a given effective date, onto the MPOWER
System (for Remote Processing) or processed using the MPOWER Software (for
Customer Processing), adjusted for actual retroactive Customer Member enrollment
or disenrollment occurring in the prior twelve (12) months.
(r) "Nonconformity" shall mean a failure of a specific Release
of the MPOWER Software to materially conform to the User Documentation and
Functional Documentation of such Release.
(s) "MPOWER Services" shall mean services furnished by MPOWER
according to the terms of this Agreement and attached Schedules and other
services described in any Work Order.
(t) "MPOWER Site" shall mean the site of the MPOWER System,
currently located at 0000 Xxxxxx Xxxxx, X. X., Xxxxxxxxxxx, Xxx Xxxxxx, 00000.
(u) "MPOWER Software" shall mean the copies of the MPOWER
Software licensed by Customer under this Agreement. MPOWER Software is marketed
under the trade name "MPOWER(TM)".
(v) "MPOWER Client-Server Software" shall mean the MPOWER(TM)
software owned by MPOWER, migrated to and operating on the IBM RS6000 computer
(or operating on other hardware to which MPOWER(TM) has been migrated and on
which the MPOWER(TM) software is generally marketed under the name of
MPOWER(TM)), and any updates, revisions, enhancements, or additions thereto
supplied by MPOWER, (including but not limited to those updates, revisions,
enhancements, or additions supplied to Customer pursuant to Work Orders under
this Agreement) or made by Customer and incorporated by MPOWER, as described in
Section 2.7 of this Addendum.
(w) "MPOWER Standard Interface Specifications" shall mean the
MPOWER written specifications for the file size, format, blocking factors, field
content and frequency of batch transmission for interfacing software programs
for data exported from or imported into the MPOWER(TM) software-maintained
databases. MPOWER agrees that with respect to those specifications for
interfacing programs not yet developed, MPOWER agrees to consult with Customer
on such specifications and the resulting specifications shall comply with normal
industry standards.
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(x) "Related Party" shall mean an entity as to which Customer
directly owns a greater than fifty percent (50%) equity interest in the assets
of such entity, but excludes any entity as to which another co-owner, partner or
joint venture participant or affiliate is a competitor of MPOWER as set forth in
Exhibit 3.
(y) A "Release" shall mean a new version or new release of the
MPOWER Software containing General System Enhancements that is made available to
MPOWER's customers generally.
(z) A "Release Date" is the date that a Release is made
available to MPOWER's customers generally.
(aa) "Shelf Version" shall mean the Releases of the MPOWER
Software which are accepted by Customer pursuant to Section 4 herein.
(bb) "Source Code Buyout Option" shall mean the option of
Customer to acquire the right to make modifications to the source code of the
MPOWER Software and to no longer pay the Maintenance Services Fees, in
accordance with the Fees stated in Exhibit 2 hereto.
(cc) "Supplemental Services" shall mean any support or services
required by Customer and agreed to be provided by MPOWER in addition to that
provided as part of the License, as fully specified in each Work Order, which
Supplemental Services may include, but not be limited to, conversion support,
modification and enhancements, and System Set-ups.
(dd) "System Documentation" shall mean the MPOWER system
documentation provided to Customer pursuant to the terms of this Agreement. An
outline of the current System Documentation is set forth in Exhibit 4 attached
hereto.
(ee) "User Documentation" shall mean the MPOWER user
documentation provided to Customer pursuant to the terms of this Agreement. An
outline of the current User Documentation is set forth in Exhibit 4 attached
hereto.
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(ff) "Work Order" shall mean a document that is separately
executed by both parties, substantially in the format of the template included
in Schedule D of the original Agreement, that authorizes MPOWER to perform
Supplemental Services or other services for Customer and obligates Customer to
pay for such Supplemental Services or other services under the terms of that
separate document, and which document is incorporated and made part of this
Agreement.
(gg) "Workaround" shall mean a change in the procedures followed
or data supplied to avoid a Nonconformity without materially impairing
performance of the MPOWER Software.
Definitions not modified by this Addendum shall have the meaning set forth in
the Agreement dated January 1, 1997.
2. MPOWER SOFTWARE; LICENSE; CORE SERVICES
2.1 MPOWER Software License.
MPOWER grants to Customer, a nonexclusive, non-transferable (except as
specified herein) license (the "License") to use the MPOWER Software for Members
while this Agreement is in effect, which MPOWER Software includes the
Documentation, subject to the terms and conditions set forth herein.
(a) MPOWER shall prepare and provide Customer one (1) copy of
the Documentation for the MPOWER Software and update same as required due to
enhancements, upgrades, error correction or other changes made by MPOWER to the
MPOWER Software.
(b) Until such time as Customer exercises the Source Code Buyout
Option, Customer's license extends only to the right to use the object code of
the MPOWER Software and not to make modifications to the source code of the
MPOWER Software, even though the source code to the MPOWER Software may be
resident on a Customer computer for purposes of compiling, ease in debugging, or
for some other reason of operational ease, integrity or efficiency.
2.2 Payment. In consideration of the License, Customer shall timely pay
the ILF, the MF, the Maintenance Services Fees and the Transfer Fees in
accordance with Exhibit 2.
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Schedule A of the Processing and Service Agreement is Superseded when remote
processing is terminated by Customer.
2.3 Scope of Use.
(a) Customer, shall use the MPOWER Software and Documentation
solely for its own use as a provider or administrator of managed health care
and/or other insurance services to its Members and the Members of its Related
Parties, solely as expressly set forth herein, pursuant to the terms herein and
not for the benefit of any other entity, and further subject to the geographical
and Related Party restrictions in the License granted.
(b) Customer shall have the right to provide the use of certain
limited functions and features of the MPOWER Software, as described in the
Documentation, to its clients (including Members, providers of health care
services to Members, the employers of Members, which employers have signed a
contract with Customer to pay for health care services or the administration of
benefit plans for their employees, or government agencies that have signed a
contract with Customer for Members for which Customer provides administration
services, and to providers of health care services, subject to the
confidentiality restrictions set forth in Section 14 as amended in this
Addendum.
(c) Customer shall not copy the MPOWER Software or permit same
to be copied, except for production copies for use within the restrictions of
the License granted herein, and for a reasonable number of backup and test
copies: (i.) for the specific data center(s) where the MPOWER Software will be
installed where Customer is performing Customer Processing, and (ii.) for
testing and modification of the MPOWER Software (pursuant to Section 3.6).
Customer shall promptly notify MPOWER in writing as to the number of production
and test copies and location of said copies of the MPOWER Software which it
intends to make in each instance.
(d) In addition, Customer shall be permitted to make a
reasonable number of copies of the User Documentation solely for Customer's
internal use and for distribution to Related Parties and Non-Related Parties
pursuant to Section 14.2, not to exceed one (1) copy per workstation, and only
if the original copyright and other proprietary rights notices are preserved.
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(e) In addition, Customer shall be permitted to make a
reasonable number of copies of the Functional Documentation for Customer's
internal use and for distribution to Related Parties pursuant to Section 14.2
solely for use by business or technical analysts with a need to know and only if
the original copyright and other proprietary rights notices are preserved.
(f) Furthermore, Customer shall be permitted to make a very
limited number of copies, but not more than five (5) of the System Documentation
solely for Customer's internal use by senior business or technical analysts with
a need to know and only if the original copyright and other proprietary rights
notices are preserved and if Customer maintains such System Documentation under
the tightest security and destroys copies that are no longer needed.
(g) Notwithstanding anything herein to the contrary, in no event
shall Customer allow any third party to copy the System Documentation.
(h) Distribution of the Functional Documentation and of the
System Documentation is to be tightly controlled, subject to a need to know. No
identifying marks, copyright or other proprietary right notices may be deleted
from any copies of the MPOWER Documentation and all backup copies of the MPOWER
Software created shall include all such notices.
(i) MPOWER Software used for Customer Processing may be
temporarily transferred to backup equipment owned by Customer or by a third
party provider of disaster recovery services and used thereon only for so long
as the Customer size is inoperative. The use of such third party provider of
disaster recovery services shall not require the consent of MPOWER provided
such provider agrees to be bound by the confidentiality restrictions set forth
herein, and is not a competitor of MPOWER. Simultaneous use of more than the
authorized number of copies of the MPOWER Software is expressly prohibited.
(j) Customer shall not modify the MPOWER Software (except as set
forth in Section 2.7) or the Documentation, nor translate, or adapt the MPOWER
Software or the Documentation in any way or use it to create a Derivative Work
or permit the foregoing. Except as set forth in Section 8.2 with respect to the
Shelf Version, MPOWER shall not be responsible for the functioning of updates,
revisions, enhancements, additions or
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conversions or otherwise maintaining the MPOWER Software if the MPOWER Software
is modified by Customer or if Customer installs or attempts to install software,
other than MPOWER Software, which interfaces with the MPOWER Software in a
manner which is inconsistent with MPOWER Standard Interface Specifications, or
writes to any data files maintained by the MPOWER Software. Customer shall be
solely responsible for the results of such modifications or interfaces,
including the integrity of data used or generated by the MPOWER Software. In the
event that Customer makes a permitted modification or enhancement to the MPOWER
Software, as set forth in Section 2.7 herein, and it is subsequently determined
that such modification or enhancement was the cause of a Nonconformity in the
MPOWER Software, then MPOWER shall be reimbursed at the Supplemental Service
Fees rates set forth in Schedule B for the time spent in determining that such
modification or enhancement was the cause of the Nonconformity, and MPOWER
agrees to provide Supplemental Services support as specified on a Work Order to
correct such Nonconformity.
2.4 General System Enhancements. In consideration of the ILF and MF,
MPOWER shall provide to Customer General System Enhancements, if and when such
General System Enhancements are made available to licensees of the MPOWER
Software generally, except as otherwise provided in Exhibit 2. Any General
System Enhancements supplied to Customer by MPOWER shall become part of, and
subject to, this Agreement and License. MPOWER shall only provide General System
Enhancements for the then most current Release of the MPOWER Software. In
addition, MPOWER agrees also to provide support for the one prior Release
immediately preceding the most current Release of the MPOWER Software and to
provide support for any other Releases for up to one (1) year from the Release
Date of such other Releases. During any applicable support period, support for
any such prior Release of the MPOWER Software that has been replaced or modified
by General System Enhancements or by a subsequent Release shall be limited to
correction of identified and reproducible defects in the Shelf Version of such
prior Release from the published specifications therefor. MPOWER shall not be
obligated to provide General System Enhancements for any Release other than the
most current Release. Any additional MPOWER Services provided in connection with
an older Release of the MPOWER Software shall be provided as Supplemental
Services.
2.5 Correction of Nonconformities. In consideration of the ILF and MF,
and subject to the terms of this Agreement, upon
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written notification by Customer of a Nonconformity in the most current Release
of the MPOWER Software or in the one prior Release immediately preceding the
most current Release of the MPOWER Software, MPOWER will analyze the
Nonconformity and notify Customer of its estimate of when and how such
Nonconformity will be corrected or any Workaround provided and MPOWER shall use
commercially reasonable efforts to correct such Nonconformity in accordance with
the procedures and priorities established in Schedule A under Help Desk.
Notwithstanding the prior sentence, MPOWER's sole obligation hereunder shall be
limited to correcting identified and reproducible Nonconformities in the Shelf
Version of the MPOWER Software in accordance with Section 4 herein and the
relevant portions of Exhibit 1 which deal with Definitions, Support and Time
Frame for Resolution of issues logged through the MPOWER Help Desk.
2.6 Proprietary Rights and Confidentiality. MPOWER represents and
Customer acknowledges that the MPOWER Software, including the Documentation, is
the sole and exclusive property of MPOWER, including, but not limited to, all
applicable rights to patents, copyrights, trademarks and trade secrets inherent
therein and appurtenant thereto, and MPOWER retains title to the MPOWER Software
and any copies thereof. Customer is not purchasing title to the MPOWER Software
or copies thereof, but rather is being granted a license to use the MPOWER
Software pursuant to the terms herein. Customer shall not sell, license,
transfer, or otherwise make available (except as expressly provided herein) any
portion of the MPOWER Software to others, including but not limited to Related
Parties and Non-Related Parties for which Customer is providing processing
services pursuant to the terms hereof, nor permit the foregoing, except for
disclosure of the MPOWER Software to Customer consultants and auditors pursuant
to the provisions of Section 14.2 herein, and the disclosure of the User
Documentation to Related Parties and Non-Related Parties, pursuant to the
provisions of Sections 2.3 and 14.2 herein. Customer agrees to use at least
Commercially reasonable methods to secure and protect the MPOWER Software and
the Documentation as MPOWER Confidential Information as defined herein, in a
manner consistent with the manner in which it protects its own most sensitive
confidential information.
2.7 Modification by Customer. In the event that Customer exercises its
option for the Source Code Buyout Option, Customer shall have the right to
modify the MPOWER Software for
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Customer Processing without notifying MPOWER and without obtaining MPOWER's
consent provided that (i.) Customer's ownership of such modifications shall be
subject to MPOWER's proprietary rights in the MPOWER Software and to the
provisions of this Section, (ii.) MPOWER's warranties and support obligations
related to the MPOWER Software shall apply only to the Shelf Version, and (iii.)
Customer shall not market or distribute such modifications (except Customer may
distribute descriptions and/or documentation of such modifications to Related
Parties and Non-Related Parties) which distribution or marketing shall be deemed
a violation of MPOWER's proprietary rights in the MPOWER Software. If Customer
desires MPOWER to continue to provide support services, Customer shall offer all
modifications made by Customer to MPOWER for inclusion in the MPOWER Software,
subject to the mutual agreement by the parties as to the consideration, if any,
to be paid to Customer in return for Customer costs and efforts in development
of such modification(s). MPOWER shall have the right to distribute such
modifications as General System Enhancements, and if MPOWER does so, such
modification shall be covered by the MPOWER warranty and support obligations as
set forth in this Agreement. Subject to the foregoing, Customer agrees that all
modifications accepted by MPOWER in writing shall be owned by MPOWER. All right,
title and interest in such accepted modifications are hereby irrevocably
assigned by Customer to MPOWER. All such modifications shall belong exclusively
to MPOWER, with MPOWER having the right to obtain and to hold in its own name
copyright registrations, patents and such other intellectual property protection
as may be appropriate to the subject matter and any extensions and renewals
thereof. Customer agrees to give MPOWER reasonable assistance, at MPOWER's
expense, required to perfect MPOWER's rights set forth herein.
2.8 Support for Modifications
(a) Modifications Not Included in the MPOWER Software; Support
Costs. In the event (i.) MPOWER modifies or enhances the MPOWER Software at
Customer's request pursuant to Section 3.2, or Customer modifies the MPOWER
Software pursuant to Section 2.7; and (ii.) such modifications or enhancements
do not have general applicability for MPOWER's customers and are not offered as
General Systems Enhancements, in order to provide support for such modifications
and enhancements, MPOWER will need to agree, in writing, to provide support for
such modifications and enhancements, and Customer agrees that there may need to
be
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an increase in the MF and/or the Fees for Maintenance Support Services. In the
event that MPOWER agrees, in writing, to provide such support, and reasonably
believes that an increase in the MF or the Fees for Maintenance Support Services
is required due to Customer specific modifications, the parties shall meet and
discuss the nature of the increase. In the event that MPOWER does not agree to
provide such support, or if the parties fail to agree upon the amount of the
increase to the MF or the Fees for Maintenance Support Services, MPOWER shall
have no obligation to support such modifications and enhancements.
(b) Modifications Included in the MPOWER Software. Modifications
made to the MPOWER Software either by Customer , pursuant to Section 2.7, or by
MPOWER, pursuant to Section 3.2, which are included in the MPOWER Software as
General System Enhancements by MPOWER shall be supported by MPOWER as set forth
in Section 2.4.
2.9 Core Services. In consideration of the payment of the License Fees
by Customer , MPOWER shall, during the term of this Agreement, provide the Core
Services set forth in Exhibit ! except as otherwise provided in Exhibit 2.
Schedule C of the Processing and Service Agreement is superseded after the
effective date of this Schedule.
3. SUPPLEMENTAL SERVICES
3.1 Supplemental Services. Supplemental Services may include as
applicable (i.) conversion services to convert Customer data; (ii.) System Setup
such as the establishment of benefit plans, pricing information, tracking
information, capitation rules, procedure and diagnosis code files and fund
accounting and billing rules; (iii.) services for modifying the MPOWER Software
for enhancements and modifications; (iv.) -training support after initial
training; (v.) consulting services; (vi.) the efforts required to be put forth
by MPOWER to respond to the excessive or inappropriate use of the MPOWER Help
Desk by Customer for issues resulting from the lack of adequately trained
Customer personnel or from the lack of use or inadequate utilization of the
Documentation by Customer ; and (vii.) project Coordination and management for
the above Supplemental Services. All. such Supplemental Services shall be
described in an applicable Work Order and shall be undertaken by MPOWER only
pursuant to a Work Order. For services requested by Customer
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which are beyond the scope of the services generally contemplated hereunder, for
special circumstances, or if the geographic location in which any MPOWER
services are to be provided for Customer demands higher labor or resource costs,
MPOWER will provide Customer with written notice, and MPOWER reserves the right
to propose a new fee structure or different rates, which fee structure or rates
will be detailed in the appropriate Work Order.
3.2 Enhancements and Modifications Under Work Orders. Pursuant to this
Section 3.2 and the applicable Work Order, Customer may identify enhancements or
modifications which it desires to have MPOWER make to the MPOWER Software, such
as integration to other software systems, modifications for legal requirements,
and other functional enhancements. Customer shall be responsible for providing
to MPOWER a description of the changes which Customer requests to be made in the
MPOWER Software. MPOWER shall have the right to design any Customer requested
enhancements or modifications in a way which, in MPOWER's reasonable opinion,
will not adversely affect the MPOWER Services or the structure or performance of
the MPOWER Software or will have general applicability. In the event MPOWER
agrees to provide such enhancements or modifications to the MPOWER Software,
suck enhancements or modifications shall be owned by MPOWER and licensed to
Customer as part of the MPOWER Software subject to Section 2. Resources utilized
by MPOWER in providing services pursuant to any suck requests will be detailed
in applicable Work Orders.
3.2 Data Integrity. Customer acknowledges that, although MPOWER may, as
part of Supplemental Services, perform certain conversion tasks (for which
MPOWER shall be responsible), including development of files and programs for
the conversion of Customer data into formats for the MPOWER Software, the
quality and integrity of all Customer data provided to MPOWER, and the results
obtained or resulting from poor or inaccurate data are solely Customer's
responsibility.
3.3 Access. In order for the Supplemental Services to be completed in a
timely and successful manner, Customer shall provide MPOWER with such access to
applicable information and key Customer personnel as MPOWER may reasonably
request from time to time during the period the Supplemental Services are being
performed. In connection with the Supplemental Services, MPOWER will be entitled
to submit various materials, including time
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schedules, business requirements, specifications, and test results, for
Customer's review, comment, sign-off, or approval. Customer will respond to each
such request as soon as reasonably practicable, and, in any event, in a time
frame consistent with the applicable project plan, and shall not unreasonably
withhold any sign-off or approval requested by MPOWER.
3.4 Schedule B of the Processing and Service Agreement is superseded by
this Schedule.
4. ACCEPTANCE
For all deliverables, including the MPOWER Software and General System
Enhancements and Customer-specific enhancements and modifications provided
pursuant to an applicable Work Order, whether for MPOWER Processing or for
Customer Processing, Customer shall, within thirty (30) days of receipt of the
deliverable, or within such other time period as may be agreed to in writing by
the parties, review and, if applicable, test-the deliverable and approve it or
notify MPOWER in writing of non-approval, documenting in reasonable detail any
and all material' defects in the deliverable which prevent it from conforming to
the Documentation or specifications therefor, as applicable. Work Orders for
Customer enhancement requests will include specification of an acceptance test
period that is mutually agreed to by Customer and MPOWER and which shall be
reflective of the estimated size and complexity of the deliverable specified by
the Work Order. MPOWER shall, upon receipt of such notice, use its best efforts
to correct any such material failures and shall notify Customer of its
completion thereof. Customer shall, after receipt of said notice, review the
deliverable and report. Customer shall do so promptly using diligent efforts,
but in no event shall such process exceed fifteen (15) days. The above cycle
shall be repeated as is necessary. A deliverable shall be deemed accepted by
Customer if either:
(a) Customer notifies MPOWER in writing of its acceptance and
the acceptance date shall then be the date of such notice;
(b) Customer fails to notify MPOWER in writing within the
applicable time period of any material defect in the deliverable and the
acceptance date shall then be the last day of said period; or
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(c) Customer places in productive use any portion of the
deliverable and the acceptance date shall then be the first day of such
productive use. Productive use for purposes of the foregoing shall not include
the use by Customer of the MPOWER Software in a parallel processing environment
where Customer is utilizing the MPOWER Software to process a limited number of
Members during a reasonable period of time for the purpose of testing the MPOWER
Software.
Customer agrees that it will so test any modifications or enhancements
made by MPOWER for Customer under an applicable Work Order and made part of a
Release and all General System Enhancements. The version and release of the
MPOWER Software so accepted by Customer shall be deemed the current Shelf
Version. Customer and MPOWER shall maintain copies of each Shelf Version. The
obligation of MPOWER to maintain any enhancements or modifications made
specifically for Customer that are not part of either General System
Enhancements or a Release shall be specified in the Work Order that authorizes
such enhancements or modifications or in a subsequent Work Order.
5.FEES AND CHARGES
5.1 Fees and Charges. The Fees for the MPOWER License and Services are
described in Exhibit 2 attached hereto.
5.2 Timeliness of Payment. Customer will pay the ILF, MF and all other
fees in accordance with the schedule set forth in Exhibit 2. All other
provisions of Section 10.2 of the Agreement dated January 1, 1997, remain in
force.
6.PROBLEM RESOLUTION
Subject to the limitations in support for prior Releases provided by
MPOWER as set forth in Section 3 hereof, in the event MPOWER receives notice
from Customer of a Critical Failure in the most current Release of the MPOWER
Software or in the one prior Release immediately preceding the most current
Release of the MPOWER Software, MPOWER agrees to respond to such notice by
assigning a qualified individual to attempt to remedy
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the Critical Failure, and agrees to use commercially reasonable efforts to
remedy the Critical Failure in accordance with the provisions of Section 9.2
herein commensurate with the severity of the problem and the timeliness and
quality of information regarding the problem received from Customer in
accordance with the Definition, Support and Time Frame for Resolution paragraphs
of the Help Desk section of Exhibit 1.
7. CUSTOMER RESPONSIBILITIES
Sections 7.1 and 7.2 of the Agreement dated January 1, 1997, are replaced with
sections 7.1, 7.2 and 7.3 below:
7.1 Customer Responsibilities. Customer acknowledges that the MPOWER
Software reflects certain interdependent relationships, such as exist among the
data variables, logic rules and system functions of the MPOWER Software.
Customer further acknowledges that it is required and has a responsibility to
understand such data variables, logic rules and system functions, and their
interdependent relationships, and to define for its own purposes such data
variables, logic rules and system functions to the MPOWER Software in such a way
that the MPOWER Software will provide the functionality desired by Customer.
Customer acknowledges that it has or will hire and will maintain on its staff
personnel who are able to understand and define such data variables, logic
rules, system functions and interdependent relationships. Customer further
acknowledges that, even though MPOWER may assist Customer personnel in
performing these tasks, the responsibility for the effective definition and
maintenance of these data variables, logic rules and system functions resides
with Customer and not with MPOWER, unless Customer specifically requests MPOWER
to perform these tasks at the Supplemental Services Fees. Notwithstanding the
foregoing, nothing herein shall relieve MPOWER of responsibility for the
assistance that it may provide to Customer hereunder.
7.2 Testing. Customer acknowledges that it will undertake testing of
the MPOWER Software and of the basic functionality and interdependency of its
customer-defined data variables, logic rules and system functions as set forth
in Section 4 herein, prior to commencing use of the MPOWER Software for its
business.
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7.3 Customer Data. Except as may be provided under an applicable Work
Order, Customer shall be responsible for inputting and ensuring the accuracy,
validity and completeness of all data variables, logic rules, system functions
and Customer data, including but not limited to group, subscriber, Member,
provider, utilization, encounter, claims, capitation, fund accounting, billing,
collection, broker, benefits, product contract, provider contract, provider
fees, standard business measures, and other similar or related data. Customer
shall also be responsible for inputting and ensuring the accuracy, validity and
completeness of all user-defined report definitions, all report and batch
production job specifications and priority scheduling criteria. Customer shall
also be responsible for initiating, monitoring, operating, printing and ensuring
the accuracy, validity, and completeness of all print outputs and file
downloads, including but not limited to all reports, premium bills, checks,
etc., determining how many and on what print stock such outputs are to be
printed or into which files or programs on Customer controlled computers such
files are to be downloaded and manipulated, at Customer's own initiative,
responsibility and risk. Customer hereby acknowledges responsibility for
generally controlling all aspects related to the production, distribution and
control of such outputs. Customer further acknowledges that, notwithstanding
the responsibility of MPOWER to have used due care and diligence in the design
and documentation of the System, the accuracy of Customer's database within the
MPOWER Software and the accuracy of the several outputs of the MPOWER Software,
including but not limited to, outputs that control the billing, receipt or
expenditure of moneys, will be dependent on the accuracy and use of the data
variables, logic rules, system. functions and Customer data input into the
MPOWER Software by Customer and verified by Customer. Notwithstanding the
foregoing, nothing herein shall relieve MPOWER of responsibility for the
assistance that it may provide to Customer hereunder.
7.4 Other Customer Obligations. section 7.3 is renumbered 7.4. In
addition to those responsibilities set forth in the former Section 7.3 of the
Agreement dated January 1, 1997, the following additional obligations of new
Section 7.4 will apply to Customer:
(a) Pay all costs of acquisition, installation and use of
equipment and services at all Customer sites.
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(b) Properly maintain the Customer equipment at all Customer
sites.
(c) Properly maintain the operating environment, operating
system, network and database software as agreed to between the parties.
8. WARRANTIES
Section 8. Warrantees of the Agreement dated January 1, 1997, is replaced in its
entirety with the following:
8.1 MPOWER warrants that it either owns the rights to the MPOWER
Software or has the right to grant the license to Customer herein, and that it
either owns or has licensed in the manner contemplated by this Agreement any
other software used in the provision of the MPOWER Services to Customer,
including but not limited to the enhancements or modifications provided by
MPOWER pursuant to an applicable Work Order. MPOWER warrants that the MPOWER
Software, including without limitation each component or part thereof, does not
and will not infringe upon or violate any patent, copyright, trademark, trade
secret or other proprietary or contractual rights of any third party.
MPOWER shall, at its own expense indemnify, defend, settle and hold harmless
Customer and its officers and employees, from and against any and all claims,
damages, losses, liabilities, costs and expenses (including reasonable legal.
fees) directly arising out of any such claim that the Shelf Version of the
MPOWER Software infringes upon or violates any United States patents,
copyrights, trademarks, trade secrets or other proprietary, contractual or
intellectual property rights of any third party; provided, however, Customer
must send MPOWER written notice of any claim relating to such infringement
promptly after Customer receives notice of the same and Customer fully
cooperates, at MPOWER'S expense, in the defense of any such claim. Following
such notice of a claim or of a threatened or actual suit, MPOWER shall, upon
written notice to Customer and at MPOWER's expense, either: (a) procure for
Customer the right to continue using such MPOWER Software; (b) replace or modify
same so that it becomes non-infringing; or, (c) grant to Customer a refund for
said MPOWER Software based upon a five (5) year straight line depreciation upon
its return to MPOWER if neither (a) nor (b) are reasonably possible, in MPOWER's
sole discretion. The foregoing states the entire liability of MPOWER and the
sole remedy of
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Customer with respect to any infringement or claimed infringement by the MPOWER
Software.
Notwithstanding the foregoing, MPOWER shall not be obligated to defend,
indemnify or hold Customer harmless from and against any claim, suit proceeding
or allegation (i.) asserted by a parent, subsidiary or affiliate of Customer or
any Related Party, (ii.) resulting from Customer's additions to, changes in, or
enhancements or modifications of the MPOWER Software, (iii.) resulting from
Customer's Use of the MPOWER Software in combination with non-MPOWER Software,
or (iv.) resulting from Customer's misuse of the MPOWER Software.
8.2 MPOWER warrants that the Shelf Version of the MPOWER Software will
function as set forth in MPOWER's User Documentation, including all updates and
enhancements thereto. Upon receipt of Customer's notice given pursuant to
Section 17.4, of the Agreement dated January !, 1997, MPOWER and Customer shall
cooperate to attempt to duplicate the problem on the Shelf Version of the MPOWER
Software. If the problem can be duplicated, MPOWER's sole obligation under this
warranty and Customer's sole remedy shall be for MPOWER to comply with the
service obligations set forth in Section 6 herein. If the problem cannot be
duplicated, MPOWER's warranty shall not apply and MPOWER shall have no
obligation to remedy the cited defect. MPOWER covenants and warrants that all
improvements and enhancements of the MPOWER Software provided by MPOWER will be
compatible with, and will not materially diminish the features or functions of,
or the specifications of the Shelf Version of the MPOWER Software, and that the
Shelf Version of the MPOWER Software will be compatible with the equipment
described in the Documentation. MPOWER warrants that User Documentation shall
reflect the operation of the MPOWER Software, and MPOWER shall, at no additional
cost to Customer, correct any User Documentation that does not conform to this
warranty.
8.3 MPOWER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EXCEPT
THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 8. MPOWER SPECIFICALLY
DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OF THE MPOWER SERVICES OR THE MPOWER SYSTEM, OR THE
COMPLIANCE OF THE FOREGOING WITH ANY LAW, REGULATION OR ORDER.
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9. LIMITATION OF LIABILITY
Section 9. Limitation of Liability of the Agreement Dated January 1, 1997, is
replaced in its entirety with the following:
NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS
UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR
PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
MPOWER SHALL NOT BE LIABLE FOR ANY CLAIM ARISING FROM THE USE OF SOFTWARE OR
DATA WHICH HAS BEEN MODIFIED BY ANYONE OTHER THAN MPOWER, NOR FOR ANY CLAIM
ARISING FROM THE USE OF ANY SOFTWARE OR EQUIPMENT DEVELOPED OR MODIFIED BY
CUSTOMER OR WHICH HAS BEEN PROVIDED TO OR ACQUIRED BY CUSTOMER UNDER ANY LICENSE
OR OTHERWISE FROM ANY THIRD PARTY.
EXCEPT AS PROVIDED IN SECTION 8.1 WITH RESPECT TO MPOWER's EXPRESS
OBLIGATIONS TO INDEMNIFY CUSTOMER FOR LIABILITIES TO THIRD PARTIES, MPOWER's
SOLE AND TOTAL LIABILITY TO CUSTOMER RELATED TO THIS AGREEMENT WHETHER IN
CONTRACT OR IN TORT OR OTHERWISE SHALL BE LIMITED TO CUSTOMER'S ACTUAL DIRECT
DAMAGES NOT TO EXCEED THE SUM OF THE LICENSE FEES AND REMOTE PROCESSING FEES
PAID BY CUSTOMER TO MPOWER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS'
IMMEDIATELY PRIOR TO THE BREACH OR CAUSE FOR WHICH THE DAMAGES ARE CLAIMED. THIS
LIMITATION APPLIES TO ALL CAUSES OF ACTIONS OR CLAIMS IN THE AGGREGATE INCLUDING
WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, MISREPRESENTATION AND OTHER TORTS. FURTHER, NO CAUSE OF ACTION WHICH
ACCRUED MORE THAN TWO(2) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE
OF ACTION MAY BE ASSERTED AGAINST MPOWER, EXCEPT THAT IN NO EVENT SHALL THE
FOREGOING LIMITATION EXTEND ANY APPLICABLE STATUTORY LIMITATION PERIOD. CUSTOMER
AND MPOWER EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS
CONTAINED HEREIN REPRESENT THE PARTIES' AGREEMENT AS TO THE ALLOCATION OF RISK
BETWEEN THE PARTIES IN CONNECTION WITH MPOWER's OBLIGATIONS UNDER THIS
AGREEMENT. THE PAYMENTS PAYABLE TO MPOWER IN CONNECTION HEREWITH REFLECT THIS
ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES IN THIS AGREEMENT.
MPOWER hereby is not assuming or otherwise responsible for, expressly or
implicitly, any obligation or liability of any kind whatsoever of Customer.
Customer shall and hereby does agree to indemnify and hold MPOWER harmless from
any and all claims, lawsuits, liabilities, expenses, costs, damages and fees
arising
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from or in connection with Customer's use or misuse of the MPOWER Services or
MPOWER Software in breach of its obligations hereunder or relative to Customer's
provision of services or products to any third party.
10. OTHER PROVISIONS
10.1 Inspection Rights. MPOWER will provide such auditors and inspectors
as Customer may from time to time designate in writing, with reasonable access
to any data center from which MPOWER is providing services hereunder for the
limited purpose of performing audits or examinations of Customer. MPOWER will
provide to such auditors and inspectors any routine assistance that they
reasonably require, rendered in connection with any such audit or inspection.
10.2 MPOWER Audits. Customer shall maintain adequate books and records
relating to its usage of the MPOWER Software and MPOWER Services and the Fees
due to MPOWER hereunder. MPOWER shall have the right, upon request, and in
connection with Customer's annual audit, to have Customer's auditors perform an
audit of Customer's books and records with respect to the MPOWER Software and
MPOWER Services and the Fees due to MPOWER hereunder. The cost of such audit
shall be borne by MPOWER solely to the extent that the auditors' services are
substantially different from or greater than those that the auditors would
ordinarily perform for Customer. Any over/under payment between the reported
usage of the MPOWER Software and the MPOWER Services and the Fees due to MPOWER
hereunder and the actual amount shall be paid by the appropriate party, or
applied as a credit by MPOWER, within thirty (30) days of notification of said
amount.
11. Additional Provisions Relating For Termination
The following provision is added to Section 13 of the Agreement dated January 1,
1997:
13.5 Termination Without Cause. In the event Customer ceases all
Customer Processing or Remote Processing Services, then MPOWER may terminate, at
its option, this Agreement and License upon thirty (30) days written notice.
Customer may terminate this Agreement without cause with one hundred eighty
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(180) days advance written notice to MPOWER subject to Customer's payment to
MPOWER of all outstanding fees incurred prior to the date of termination, all
applicable termination fees as provided in any Exhibit 2, and any applicable
early termination fees specified in Exhibit 2.
Section 13.5 Termination Assistance is renumbered Section 13.6.
Section 13.6 Outstanding Amounts is renumbered 13.7 and is amended to read as
follows:
13.7 Outstanding Amounts. Termination of this Agreement shall entitle
MPOWER to payment and Customer shall be obligated to pay for the provisions of
any and all MPOWER Services rendered by MPOWER under this Agreement prior to the
date of such termination, all outstanding fees incurred prior to the date of
termination and the lump sum of all remaining ILF payments due by Customer under
Exhibit 2 (except as provided in Section 13.3 herein).
Section 13.7 Customer Data is renumbered 13.8.
Section 13.9 is added to the Agreement dated January 1, 1997.
13.9 MPOWER Software. Unless otherwise provided in this Agreement,
Customer agrees that upon termination of this Agreement, the License granted
hereunder shall also terminate and Customer shall .cease using the MPOWER
Software and shall return to MPOWER or destroy, within thirty (30) days after
such termination, the original and all copies of such MPOWER Software and
Documentation. Except for termination resulting from the material breach on the
part of Customer, including without limitation, breach of its Confidentiality
obligations or failure to timely make any payment hereunder, Customer shall be
permitted to continue to use the MPOWER Software pursuant to all the terms and
conditions set forth in this Agreement for up to a maximum of six (6) months
following such termination for the sole purpose of transitioning Members to an
alternate processing software, provided (i.) Customer remains obligated to pay
MF during such period; (ii.) MPOWER has no further obligations to provide Core
Services, new Releases, fixes to Nonconformities or Critical Failures, and
(iii.) the MPOWER Software is no longer warranted. If Customer destroys the
MPOWER Software, all copies thereof and Documentation, within thirty (30) days
of such destruction an officer of Customer shall certify to MPOWER in writing
that the
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MPOWER Software and all copies and Documentation thereof have been destroyed.
Due to the nature of the MPOWER Software and the need for its protection as a
trade secret and confidential proprietary information, time is of the essence in
its return or destruction, and in the event of Customer's failure to do so
within the time provided herein, Customer agrees that MPOWER shall be entitled
to obtain injunctive relief to require such return or destruction and reasonable
attorneys' fees and costs incurred in obtaining such injunctive relief.
12. Provisions Relating to Confidentiality
Section 14. Confidentiality is replaced in its entirety with the following:
14. CONFIDENTIALITY
14.1 Confidential Information. "Confidential Information" shall mean
information such as customer lists, business plans, operation plans, client
information, application software programs and documentation licensed by third
parties to Customer or MPOWER, the MPOWER Software, the User Documentation,
Functional Documentation and the System Documentation, which are disclosed by
Customer or MPOWER to the other party, its employees, agents, contractors,
assignees or successors in the conduct of business under this Agreement. In
addition, Confidential Information shall also include any other materials
relating to MPOWER's business or the business of Customer which are designated
in writing as confidential at the time of disclosure by Customer or MPOWER, or
is identified orally at the time of the disclosure as confidential and confirmed
in writing within one week of such disclosure, and which are disclosed by
Customer or MPOWER to the other party, its employees, agents, contractors,
assignees or successors in the conduct of business under this Agreement. The
following information shall not-be deemed Confidential Information, and a party
and that party's employees shall have no obligation with respect to any such
information which:
a. is or falls into the public domain through no wrongful act of
a party or that party's agents or employees; or
-23-
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b. is rightfully received from a third party without restriction
and without breach of this Agreement; or
c. is approved for release by written authorization of an
officer of a party; or
d. is disclosed pursuant to the requirements of a governmental
agency or operation of law; or
e. is already in possession of a party or that party's employees
as evidenced by their records and is not the subject of a
separate non-disclosure or confidentiality agreement with
either of them.
14.2 Standard of Care. Each party hereby agrees that it and its
respective officers, employees, agents, contractors, assignees, and successors
shall (i.) keep all Confidential Information received from the other party
strictly confidential, (ii.) instruct their officers, employees, agents,
contractors, and permitted assignees and successors, who have access to such
Confidential Information, to use the same degree of care and discretion with
respect to the Confidential Information of the other party, or of any third
party utilized hereunder, that MPOWER and Customer each require with respect to
their own most confidential information, (iii.) use and disclose such
information solely for the purposes and in the manner set forth in this
Agreement, (iv.) not disclose any such information to any other person,
corporation, governmental agency or other entity without the express written
permission of the other party, except that Customer may (v.) disclose the MPOWER
Software and Documentation to outside consultants or other third parties having
a need to know such Confidential Information for purposes of this Agreement, and
provided said consultants or third parties agree to hold the MPOWER Software and
Documentation in confidence, and have executed a Non-Disclosure Agreement in the
form annexed hereto as Schedule F, and (vi.) disclose the User Documentation to
Related Parties and Non-Related Parties in order for Customer to be able to
provide and for such parties to be able to effectively receive and utilize
Customer Processing, provided said Related and Non-Related Parties agree to hold
the User Documentation in confidence subject to the provisions herein, and have
executed a Non-Disclosure Agreement in the form
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annexed hereto as Schedule F. NOTWITHSTANDING THE FOREGOING, WITH RESPECT TO
MPOWER SOURCE CODE AND SYSTEM DOCUMENTATION, IN ADDITION TO ITS OBLIGATIONS SET
FORTH HEREIN, CUSTOMER SKILL USE NO LESS THAN THE SAME DEGREE OF CARE AND
DISCRETION THAT CUSTOMER REQUIRES WITH RESPECT TO ITS MOST VALUABLE TRADE SECRET
INFORMATION. Notwithstanding the foregoing, Customer may not disclose MPOWER's
Confidential Information to any of the parties identified by MPOWER in Exhibit
3, as such Exhibit may be updated from time to time by MPOWER, or to their
employees, agents, or consultants. Customer shall institute the necessary
security policies and procedures to meet its obligations hereunder.
Notwithstanding the foregoing, the mere viewing of data input screens or the
review of output screens and reports generated by released MPOWER Software by
third parties, not in competition with MPOWER, shall not be deemed a disclosure
of MPOWER Confidential Information.
Without limiting the foregoing, Customer shall use its reasonable
efforts to cooperate with MPOWER in identifying and preventing unauthorized use,
copying, or disclosure of the MPOWER Software and MPOWER Confidential
Information, or any portion thereof.
Customer shall indemnify and hold harmless MPOWER and its officers and
employees from and against any and all damages, losses, liabilities, costs and
expenses (including reasonable legal fees) arising in any way out of use not in
compliance with this Agreement or of any breach of the Confidentiality
obligations hereunder by Customer, or its subsidiaries and affiliates, or any
entity controlling, controlled by or under common control with Customer or any
Related Party.
13. Amendments to Section 17. General
Section 17. A new Section 17.8 is added.
17.8 Publicity. Neither party shall use the name, trade name, service
marks, trademarks, trade dress or logo of the other in publicity releases,
advertising or similar activities without the prior written consent of the
other. Notwithstanding the foregoing, MPOWER shall have the right to list
Customer's name on customer lists, provided that such listing(s) does not state
or imply a recommendation, approval or testimonial by Customer.
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A new section 17.9 is added:
17.9 Export Assurance. Notwithstanding anything contained herein to the
contrary and regardless of any disclosure made by Customer to MPOWER of any
ultimate destination of the MPOWER Software, Customer shall not export or
re-export directly or indirectly the MPOWER Software acquired from MPOWER, or
any technical data derived therefrom, without first obtaining the written
approval or required export license to do so from the United States Department
of Commerce or any other agency of the United States Government or of any
foreign government having jurisdiction over such transaction, when required by
an applicable statute, regulation or order. Customer hereby assures MPOWER that
it does not intend to nor will it knowingly, without the prior written consent,
if required, of the Office of Export Administration of the U.S. Department of
Commerce, Washington, DC, transmit or ship the MPOWER Software or any
modifications thereto or product thereof, directly or indirectly, to Afghanistan
or to the Peoples Republic of China or to any Group Q, S, W, Y or Z country
specified in Supplements to Section 370 of the Export Administration Regulations
issued by the U.S. Department of Commerce, as may be amended from time to time;
or any other applicable regulation.
A new section 17.10 is added:
17.10 Governmental Restrictions. Customer shall be responsible for
complying with all applicable governmental regulations of the United States or
any foreign countries with respect to Customer's transport or use of the MPOWER
Software outside of the United States, including, but not limited to import and
export restrictions, obtaining any necessary consents, registering or filing any
documents and paying any duties, fees or taxes. Customer shall be solely
responsible for all costs associated with such compliance. Customer shall
defend, indemnify and hold MPOWER harmless from and against any and all claims,
judgments, costs, awards, expenses (including reasonable attorneys, fees) and
liability of any kind arising out of the non-compliance with applicable
governmental regulations, statute, decree or other obligation with respect to
the MPOWER Software outside the United States.
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Sections 17.8 and 17.9 of the Agreement dated January 1,1997, are renumbered
17.11 and 17.12 respectively.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives.
MPOWER SOLUTIONS INC. Brokerage Services, Inc.
(Customer)
By: /s/ XXXXXXX F.X. X'XXXX By: /s/ XXXXXXX X. XXXXXXX
-------------------------------- --------------------------------
Name: Xxxxxxx F.X. X'Xxxx Name: Xxxxxxx X. Xxxxxxx
Title: EVP & COO Title: CFO
Date: 7-25-97 Date: July 25, 1997
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INDEX OF EXHIBITS
Exhibit 1 - DEFINITION OF CORE SERVICES
Exhibit 2 - LICENSE, PROCESSING AND SERVICE FEES
Exhibit 3 - MPOWER IDENTIFIED PARTIES FOR NON-DISCLOSURE
Exhibit 4 - DOCUMENTATION OUTLINE
Exhibit 5 - NON-DISCLOSURE AGREEMENT
Exhibit 6 - THIRD PARTY VENDOR SOFTWARE AND HARDWARE TO
IMPLEMENT MPOWER SOFTWARE ON CUSTOMER'S CLIENT
SERVER PLATFORM (TBD)
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Exhibit 1
DEFINITION OF CORE SERVICES
"Core Services" are those services, in addition to the License, that are
provided to Customer by MPOWER in consideration for the payment of the License
Fees, except as otherwise provided in Schedule B. Core Services shall include
the following:
Conversion Plan: MPOWER will provide a template plan for migrating and
converting Customer members to the MPOWER Software or the MPOWER System. The
template plan will include a description of tasks to be performed, milestones,
and deliverables. Customer and MPOWER will mutually agree on initial
modifications to the template plan to fit the Customer's specific situation and
circumstances. This modified template plan shall be referred to as the
"Conversion Plan", which may be subsequently modified by agreement of the
parties from time to time.
Software Installation (if applicable): In accordance with the Conversion Plan,
MPOWER will provide up to one hundred-twenty (120) hours of systems support to
help install the MPOWER Software on a single Customer CPU(s) designated as
follows:
CPU Model Number(s):
--------------------------------------------------------
CPU Serial Number(s):
--------------------------------------------------------
Prior to installation of MPOWER Software, Customer shall have installed the
vendor software detailed on Exhibit 6.
Delivery: Unless otherwise requested in writing at the time of final delivery
to Customer of any deliverable of the MPOWER Software or of the enhancement or
modification provided under any Work Order under the License or applicable Work
Order to Customer or any Related Party, all deliverables to Customer or any
Related Party shall be by electronic delivery. Customer shall provide
appropriate communications linkages to receive such deliveries and shall pay
MPOWER the fees stated therefor in Exhibit 2.
-A-1-
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Documentation: MPOWER will provide User Documentation and, if applicable, System
Documentation and the Functional Documentation for the functions and in the form
outlined in Exhibit 4, Documentation.
Help Desk: MPOWER shall provide a "Level Two" Help Desk to answer Customer
questions and solve Customer problems for acceptance testing and production
activities as further described herein. (Questions that are training related, or
answers to which can be found in the User Documentation, or that are related to
initial setups and definitions should be referred to the MPOWER
implementation-support team.) The Help Desk is staffed 8:00 am to 5:00 p.m.,
Mountain Time, Monday through Friday. Calls to the Help Desk outside of these
hours are rolled over either to MPOWER Operations or pager response. An Inward
WATS number (currently 0-000-000-0000) is available for Help Desk calls at no
charge to the Customer. Calls to the Help Desk that represent problems related
to the MPOWER Software or MPOWER System are assigned a Problem Number and
entered into the MPOWER Problem Reporting and Tracking System, where current
status is available for reporting back to the Customer.
A "Level Two" Help Desk call is a call from the Customer's internal Help Desk
seeking support for questions and problems for production activities that the
Customer's Help Desk was not able to resolve on its own (each a "Service Call").
MPOWER represents that Service Calls will be logged and responded to as follows:
A. Severity Level/Priority: 1
Definition: A Critical Failure.
Support: MPOWER will provide telephone support twenty-fours (24) hours
per day, seven (7) days per week for Severity Level 1 problems.
Time Frame for Resolution: Service Calls will be responded to by
knowledgeable MPOWER staff via telephone within thirty (30) minutes of
receipt of a Service Call between the hours of 8:00 am to 5:00 p.m.,
Mountain Time, Monday through Friday, and one (1) hour during other
periods. MPOWER will use its best
-A-2-
57
efforts to provide a resolution of the problem (permanent or temporary)
within twenty-four (24) hours of receipt of the Service Call, or
verification by MPOWER of the problem, either through replication or
receipt by MPOWER of complete documentation from Customer needed to
resolve the problem -- whichever occurs last. Customer shall maintain
immediate resource availability during all hours that MPOWER is working
on a Service Call.
B. Severity Level/Priority: 2
Definition: Production degraded -- defined as a verifiable Nonconformity
in the Shelf Version of the MPOWER Software (or verifiable failure of
the MPOWER System hardware, if the problem arises with respect to Remote
Processing) that does not disrupt critical business processing, but
causes disruption to normal work flow.
Support: MPOWER will provide telephone support twenty-fours (24) hours
per day, Mountain Time, Monday through Friday for Severity Level 2
problems.
Time Frame for Resolution: Service Calls will be responded to by
knowledgeable MPOWER staff via telephone within the same working day,
Monday through Friday, if the Service Call is received prior to 3:00
p.m. Mountain Time. Otherwise, if the Service Call is received after
3:00 p.m. Mountain Time, the call will be responded to by 10:00 a.m.,
Mountain Time, the next morning, except Saturdays and Sundays. MPOWER
will use its best efforts to provide a resolution of the problem
(permanent or temporary) within the later of three (3) business days of
receipt of the Service Call; or verification by MPOWER of the problem,
either through replication or receipt by MPOWER of complete
documentation from Customer. needed to resolve the problem.
C. Severity Level/ Priority: 3
Definition: Normal response to either non-critical questions or
non-critical problems. A non-critical problem is defined as a verifiable
Nonconformity in the Shelf Version of the MPOWER Software (or verifiable
failure of the MPOWER System hardware, if the problem arises with
respect to Remote
-A-3-
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Processing), that does not cause disruption to normal work flow or
degrade production.
Support: MPOWER will provide telephone support from 8:00 a.m. to 5:00
p.m. Mountain Time, Monday through Friday, for Severity Xxxxx 0
situations.
Time Frame for Resolution: Service Calls for Severity Level 3 situations
are handled differently whether the Service Call is a non-critical
question or a non-critical MPOWER Software or MPOWER System problem. If
a non-critical MPOWER Software or MPOWER System problem, it will be
entered into the MPOWER Problem Reporting and Tracking System. MPOWER
and the Customer shall jointly prioritize these non-critical problems at
least weekly up to one year after first production use, and at least
monthly thereafter. After prioritization, MPOWER shall produce a
schedule for their resolution.
Within ten (10) working days after month-end, MPOWER will provide reports and
graphs to the customer liaison (see Section 16.2) comparing Service Call
performance against standards for Severity 1, 2, and 3 Service Calls -- both
for the month and the year-to-date.
For two successive calendar quarters, beginning with the first calendar quarter
after the initial Implementation Date, the Customer shall be entitled to
unlimited Service Calls from the Customer's help desk to the Help Desk (or its
"after hours" rollover to Operations). Thereafter, Service Calls to the Help
Desk in excess of sixty (60) calls per calendar quarter shall be billed as
Supplemental Services.
Ongoing Support: MPOWER provides ongoing support in the areas of General System
Enhancements, correction of Nonconformities, and in certain specific situations,
support for modifications, whether made by Customer or MPOWER:
General System Enhancements: See Section 2.4.
Correction of Nonconformities: See Section 2.5.
Support for Modifications: See Sections 2.7 and 2.8(b).
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Annual Audit: Annually, beginning within thirty (30) days after the anniversary
of the Effective Date, MPOWER, with Customer agreement, will audit the way the
Customer is using the MPOWER Software or MPOWER System, and offer
recommendations for more efficient utilization. This MPOWER audit will be
performed only with the express proviso that Customer makes available to MPOWER
audit team knowledgeable personnel who can fully represent Customer's use of
MPOWER Software or MPOWER System.
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Exhibit 2
LICENSE, PROCESSING AND SERVICE FEES
I. LICENSE FEES
A. License Fees. MPOWER License Fees for the use of the MPOWER Software
are broken into two(2) components: (i) Initial License Fee (ILF) and
(ii) Maintenance Fee (MF) . These components are intended to provide
Customer with initial and ongoing rights to use the Software pursuant
to the terms of the License, Processing and Services Agreement.
1. Initial License Fee: The ILF is the initial fee payable by
Customer for the License to use the MPOWER Software. The ILF for
Customer and Related Parties is set forth in Section B(1) below.
2. Maintenance Fee: The MF is the fee payable by Customer for the
ongoing License and support for the MPOWER Software, as described
in Sections 3.4 and 3.5 of the Agreement
B. License Fees (ILF, and MF) and Advanced Payments for
Customer and Related Parties
1. Initial License Fee. The initial License Fee payable by Customer
for the License of the MPOWER Software for Customer and Related
Parties is $400,000 which will be payable by Customer in twelve
(12) equal installments commencing January 2, 1998.
2. Fee for Customer and Related Parties. Maintenance The Maintenance
Fee for Customer and Related Parties will be paid by Customer in
accordance with the following schedule:
* Confidential Treatment Requested
B-1
61
$[*] per year paid in twelve equal monthly installments with the
first payment due January 2, 1999, for the year 1999.
3. Source Code Buyout Provisions. Customer shall have the option to
buyout the rights to the MPOWER Software source code ("Source Code
Buyout") upon providing MPOWER with three (3) months advance
written notice, according to the following schedule:
- up to the third anniversary of the date of this Agreement, upon
the single payment to MPOWER of $1,000,000 and any MF Prepayment
owed by Customer to MPOWER pursuant to paragraph B.2 above;
- upon or after the third anniversary of the date of this
Agreement, upon the single payment to MPOWER of $750,000
- upon or after the fourth anniversary of the date of this
Agreement, upon the single payment to MPOWER of $500,000; or
- upon or after the fifth anniversary of the date of this
Agreement, upon the single payment to MPOWER of $250,000.
Upon the exercise of the MF Buyout, the terms of the Agreement shall
remain unchanged except, (a) Customer shall have the right to modify
the MPOWER Software without first obtaining the consent of MPOWER and
without notifying MPOWER; (b) Customer shall no longer be entitled to
future Releases or General System Enhancements, and (c) Customer
shall not be entitled to the future provision of the Core Services.
Any services provided by MPOWER to Customer subsequent to Customer's
completion of the Source Code Buyout shall be provided
* Confidential Treatment Requested
B-2
62
as Supplemental Services at MPOWER's then current rates.
V. FEES FOR SUPPLEMENTAL SERVICES
Supplemental Services Fees, as incorporated in Work Orders, may be
either fixed-price or time and materials. Time and materials will be
charged at the then-current rates for such services. Current (as of
January 1997 through December 1997) rates for time and materials shall
be held constant by MPOWER for Customer through December 31, 1997, and
are as follows:
A. Supplemented. Services are billable at the following rate: $[*] per
hour
B. Total fees for the conversion of Customer from Remote Processing to
Customer Processing shall be capped at the sum of $[*], accrued
at the amount set forth above. The cap shall apply only to MPOWER
services related directly to conversion services and shall not
include services and products of third party contractors nor shall it
include services of MPOWER related to suck third party products or
contractors. The conversion period will end when Customer commences
Customer Processing for any of its customers.
C. During conversion MPOWER shall charge Customer for third party
services as a direct pass through.
D. After Conversion, the rates for outside independent contractors
provided by MPOWER for Supplemental Services shall be the greater of
(i.) the rates set forth above (for applicable skill sets) or (ii.) a
rate to be mutually agreed upon in advance by Customer and
* Confidential Treatment Requested
B-3
63
MPOWER.
VII. OTHER FEES.
Other fees may pertain to the use by Customer of the MPOWER System for
set-up, testing, training, acceptance testing or other uses not related
to the production use of the MPOWER System for processing active Members
of Customer or of a Related Party. Such other fees will be indicated in
a Work Order and may include fees for third party consultants and
vendors.
B-4
64
Exhibit 3
MPOWER IDENTIFIED PARTIES FOR NON-DISCLOSURE
In accordance with Section 15 of the Agreement, Customer may not
disclose MPOWER's Confidential Information to direct competitors of MPOWER,
including but not limited to, the companies listed below, including such
companies' parents, subsidiaries and affiliates, and such parents' subsidiaries
and-affiliates:
Computer Science Corporation (CSC)
Electronic Data Systems Corporation (EDS)
ERISCO
AMISYS Managed Care Information Systems, Inc.
Health Systems Design, Inc. (HSD)
Health Systems Integration, Inc. (HSII)
GTE Health Systems
Resource Information Management Systems (RIMS)
HBO & Co. (HBOC)
TXEN
Xxxxx Systems
IDX
H-1
65
Exhibit 4
DOCUMENTATION OUTLINE
[To Be Attached]
D-1
66
Exhibit 5
NON-DISCLOSURE AGREEMENT ("Agreement")
This Agreement is entered into as of __________, 19__, by and between MPOWER
Solutions Inc., a Delaware corporation ("MPOWER"), with its principal place of
business at 0000 Xxxxxx Xxxxx, X. X., Xxxxxxxxxxx, Xxx Xxxxxx 00000 and
Brokerage Services, Inc. ("Customer") with its principal place of business
located at 00000 Xxxxx Xxxx., XX, Xxxxxxxxxxx, XX 00000. WHEREAS, each party
wishes to disclose and to receive from the other party certain proprietary
information for the purpose of conveying the MPOWER software license as set
forth in the Agreement.
WHEREAS, the parties wish to protect certain confidential and proprietary
information which may be disclosed between them, and for and in consideration of
the disclosures made and to be made hereunder, the parties agree as follows:
1. For purposes of this Agreement, "Owner" means the party disclosing Trade
Secrets and Confidential Information hereunder, whether such party is MPOWER
or Customer, and "Recipient" means the party receiving any Trade Secrets or
Confidential Information hereunder, whether MPOWER or the Customer.
2. Recipient acknowledges and agrees that Owner claims that the Trade Secrets
and the Confidential Information of Owner are the sole and exclusive
property of Owner (or a third party providing such information to Owner) and
that Owner owns all worldwide copyrights, trade secret rights, confidential
information rights and all other property rights therein.
3. Recipient acknowledges and agrees that disclosures of the Trade Secrets and
the other Confidential Information of Owner to Recipient does not confer
upon Recipient any license, interest or rights of any kind in and to the
Trade Secrets and Confidential Information.
4. Recipient will hold in confidence and, without the prior written consent of
Owner, will not reproduce, distribute transmit, reverse engineer, decompile,
disassemble or transfer, directly or indirectly, in any form, by any means,
or for any purpose, the Trade Secrets or the Confidential Information of
Owner or any portion thereof communicated, discussed, delivered or made
available by Owner to or received by Recipient. Notwithstanding the
foregoing, Recipient may only disclose the Trade Secrets and Confidential
Information to its employees with a need to know such information, provided
each such employee shall be obligated in writing to comply with the terms
and conditions of this Agreement. Recipient will not use the Trade Secrets
or the Confidential Information of Owner or any portion thereof
communicated, discussed, delivered or made available by Owner to or received
by Recipient with our the prior written consent of Owner.
5. Recipient acknowledges that its obligations under this Agreement with regard
to the Trade Secrets of Owner shall remain in effect for as long as such
information shall remain a Trade Secret under applicable law. Recipient
acknowledges that its obligations with regard to the Confidential
Information of Owner shall remain in effect for one (1) year after its
disclosure under this Agreement. The foregoing shall not apply if and to the
extent that information shall not be deemed proprietary and each part shall
have no obligation with respect to any information which:
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67
(i.) is or falls into the public domain through no wrongful act of the
receiving party;
(ii.) is rightfully received from a third party without restriction and
without breach of this Agreement;
(iii.) is approved for release by written authorization of the
disclosing party;
(iv.) is disclosed pursuant to the requirement of a governmental agency
or operation of law; or
(v.) has been previously and independently developed by the receiving
party.
6. Recipient agrees to. return to Owner, upon request by Owner, the Trade
Secrets and Confidential Information of Owner and all materials relating
thereto, disclosed by Owner to Recipient.
7. As used herein, "Trade Secrets" means information, including, but not
limited to, technical or non-technical data, formulas, patterns,
compilations, programs, devices, methods, techniques, drawings, processes,
financial data, financial plans, product plans or a list of actual or
potential customers or suppliers, computer source code and related
documentation, which: (a) derives economic value, actual or potential, for
its Owners, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use; and (b) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. "Confidential
Information" means information, other than "Trade Secrets", that is of value
to its Owner and is treated as confidential, including, but not limited to,
licensing strategies, advertising campaigns, information regarding
executives and employees, the terms and conditions of this Agreement, any
information designated by Owner as Confidential Information, and any data or
information defined herein as a Trade Secret, but which is determined by a
court of competent jurisdiction not to rise to be a trade secret under
applicable law.
8. Recipient shall use its reasonable efforts to cooperate with Owner in
identifying and preventing unauthorized use, copying, or disclosure of the
Owner's Trade Secrets and Confidential Information.
9. Recipient shall indemnify and hold harmless Owner and its officers and
employees from and against any and all damages losses, liabilities, costs
and expenses (including reasonable legal fees) arising in any way out of use
not in compliance with this Agreement or of any breach of the
confidentiality obligations hereunder by Recipient or its employees.
10. Each party hereto agrees that during the term of this Agreement and for a
period of one (1) year following termination or expiration of this Agreement
for any reason, neither party will solicit for employment, attempt to employ
or affirmatively assist any other person, entity or enterprise in employing
or soliciting for employment any person employed or hired by the other part.
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68
11. If any provision or any part of any provision of the Agreement shall not be
valid for any reason, such provision shall be entirely severable from, and
shall have no effect upon, the remainder of this Agreement. Any such invalid
provision shall be subject to partial enforcement to the extent necessary to
protect the interests of the parties.
12. This Agreement shall inure to the benefit of, and be binding upon, any
successor in interest of the parties.
13. The intent of this Agreement is to provide the parties with all remedies
afforded to them under applicable law. Each party acknowledges and agrees to
the other party that monetary damages may be inadequate to compensate Owner
for any breach under this Agreement. Accordingly, Recipient agrees that
Owner will, in addition to any other remedies available to it at law or
equity, be entitled in injunctive relief to enforce the terms of this
Agreement.
14. This Agreement together with Exhibits hereto, if any, constitutes the entire
agreement of the parties with respect to the subject matter hereof, and
supersedes any prior agreements or understandings, whether oral or written,
between the parties with respect to such subject matter. No amendment or
waiver of this Agreement or any provision hereof shall be effective unless
in a writing signed by both of the parties.
15. This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New Mexico, without giving effect
to its conflict of laws.
N WITNESS WHEREOF, the parties by their duly authorized representatives have
caused this Agreement to be executed as of the date first written above.
MPOWER Solutions Inc. Customer
By: By:
-------------------------------- --------------------------------
(Authorized Signature) (Authorized Signature)
Title: Title:
----------------------------- -----------------------------
Date: Date:
------------------------------ ------------------------------
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