INTERCOMPANY SERVICE AGREEMENT
This Intercompany Service Agreement ("Agreement") is entered into
as of this 1st day of January, 1998 ("Effective Date"), by and
among Blue Cross & Blue Shield United of Wisconsin, a service insurance
corporation organized pursuant to Ch. 000, Xxxxxxxxx Xxxxxxxx ("XXXXXX"),
Xxxxxx Xxxxxxxxx Services, Inc., an insurance holding company organized
pursuant to Ch. 000, Xxxxxxxxx Xxxxxxxx ("XXX"), and United Heartland, Inc.,
a corporation organized pursuant to Ch. 180, Wisconsin Statutes ("UHI").
RECITALS
WHEREAS, BCBSUW, UWS and UHI are affiliated corporations, with UHI
being a wholly owned subsidiary of UWS;
WHEREAS, there is an existing service agreement between BCBSUW and UWS
that extends to subsidiaries of UWS (BCBSUW, UWS and its subsidiaries shall
hereinafter be collectively referred to as "BCBSUW/UWS Group"), and this
Agreement is intended to further specify the services, costs, and allocation
methods contemplated by that service agreement;
WHEREAS, UHI is a managing general agent for the sale and servicing of
workers' compensation business insured by United Wisconsin Insurance Company
("UWIC"), or in states where UWIC is not licensed, insured by other insurers
with whom UHI and UWIC have written agreements;
WHEREAS, BCBSUW and UWS collectively provide business resources and
services necessary for the continued operation of UHI's business; and
WHEREAS, by entering into this Agreement, the parties hereto wish to
establish clearly (i) an officer leasing arrangement; (ii) the services and
resources that BCBSUW and UWS will continue to provide to UHI and the
compensation and cost allocations therefor; and (iii) the respective rights and
responsibilities of the parties.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises, and of the
mutual covenants hereinafter contained, the parties hereto agree as follows:
1. LEASE OF OFFICERS
a. DEFINITION.
i. "Leased Officers" are those BCBSUW and/or UWS employees that
perform services, as officers of UHI, for UHI. (Leased Officers may also be
referred to herein as "Officers").
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b. LEASE OF OFFICERS.
i. OBLIGATION TO PROVIDE OFFICERS. BCBSUW and/or UWS shall provide
to UHI, to the extent requested by UHI's Board of Directors (the "UHI Board"),
the entire requirement of Leased Officers as shall be necessary or appropriate
for the conduct of UHI's business.
ii. INDEPENDENT HIRING. Notwithstanding Section 1.b.i. and the
UHI Board's present intent to lease Officers from BCBSUW and/or UWS, the UHI
Board shall have the right to obtain and hire directly any or all Officers
from any other sources and on any terms to perform such duties as the UHI
Board may consider appropriate from time to time. Should the UHI Board hire
officers from other sources, it will not hire any individual who was a BCBSUW
or UWS Employee leased to UHI within three (3) months preceding such hiring,
without the written consent of BCBSUW and/or UWS.
iii. HUMAN RESOURCES DEPARTMENT. UWS's Human Resources Department
("Human Resources") shall be responsible for the implementation, management, and
operation of BCBSUW's and UWS's leasing obligations under this Agreement.
c. EMPLOYMENT RELATIONSHIPS. Employment, termination, and terms of
employment of all Leased Officers shall be reserved to the full Boards of
Directors of BCBSUW and UWS, provided, however, that while any such individual
is leased to UHI to perform services as an officer, UHI will be consulted prior
to all determinations regarding the employment, or terms thereof, of such
individuals; provided, however, that UHI's input shall be of an advisory nature
and will not be binding on BCBSUW or UWS as the common law employers of such
individuals. BCBSUW and UWS shall be, and shall have all the privileges,
rights, and responsibilities of, common law employers of all BCBSUW and UWS
employees, respectively, whether or not the employee actually performs services
for BCBSUW, UWS or another company in the BCBSUW/UWS Group. Officers leased to
UHI pursuant to this Agreement shall remain employees of BCBSUW or UWS, and
shall in no way be treated as or considered employees of UHI.
2. SERVICES AND OTHER RESOURCES PROVIDED TO UHI
a. SERVICES AND RESOURCES PROVIDED BY BCBSUW. BCBSUW shall provide to
UHI, to the extent requested by UHI and subject to Section 5, the following
services and resources (together "BCBSUW Services"). BCBSUW shall supply
BCBSUW Services only if UHI has determined not to have its own employees or
third parties furnish the BCBSUW Services, subject to Section 5.
i. OFFICE SPACE AND FACILITIES. Office space and facilities,
including, but not limited to, furniture and equipment, as shall be necessary or
appropriate for the conduct of UHI's operations.
ii. BUILDING SERVICES. Building services, including, but not limited
to, repair and maintenance of any property and facilities made available
hereunder as shall be
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necessary to maintain such property and facilities in good working order, and
such other building services as may be necessary or appropriate for the
conduct of UHI's business.
iii. OFFICE SERVICES. Such office services, including, but not
limited to, warehousing, transportation, stockroom, graphics, printing,
duplicating and forms management, as shall be necessary or appropriate for the
conduct of UHI's business.
iv. CENTRAL SYSTEMS. Such central systems, including, but not
limited to, management information systems, corporate network support,
telecommunications, centralized mailing, technology support and central data
base maintenance, as shall be necessary or appropriate for the conduct of UHI's
business.
v. ADMINISTRATIVE SERVICES. Such administrative services,
including, but not limited to, lobbyist activities, as shall be necessary or
appropriate for the conduct of UHI's business.
vi. COMPANY CAR AND TRAVEL. Availability and maintenance of vehicles
for company related travel and such other travel related services as shall be
necessary or appropriate for the conduct of UHI'S business.
b. SERVICES AND RESOURCES PROVIDED BY UWS. UWS shall provide to UHI,
to the extent requested by UHI and subject to Section 5, the following
services and resources (together "UWS Services"). UWS shall supply UWS
Services only if UHI has determined not to have its own employees or third
parties furnish the UWS Services, subject to Section 5.
i. CORPORATE SUPPORT SERVICES. Such corporate support services,
including, but not limited to, corporate compliance, legal, and government
relations, as shall be necessary or appropriate for the conduct of UHI's
business.
ii. EXECUTIVE SERVICES. Such executive services as shall be
necessary or appropriate for the conduct of UHI's business.
iii. CORPORATE MARKETING AND COMMUNICATIONS. Such corporate marketing
and communications services, including, but not limited to, public relations and
employee community events, as shall be necessary or appropriate for the conduct
of UHI's business.
iv. HUMAN RESOURCES. Such human resource services, including, but
not limited to, staffing, labor and employment relations, training and
development, and administration of payroll and employee benefits, as shall be
necessary or appropriate for the conduct of UHI's business.
v. FINANCIAL SERVICES. Such financial services, including, but not
limited to, cash management, tax, treasury, administration of financial systems,
and strategic planning/consulting, as shall be necessary or appropriate for the
conduct of UHI's business.
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vi. ACTUARIAL AND UNDERWRITING SERVICES. Such actuarial and
underwriting services as shall be necessary or appropriate for the conduct of
UHI's business.
vii. OTHER SERVICES. Such other services as shall be necessary or
appropriate for the conduct of UHI's business.
c. STAFFING. BCBSUW and UWS shall both maintain an adequate source of
qualified employees to ensure the acceptable performance of BCBSUW and UWS
Services.
3. COST ALLOCATION METHODS
a. LEASED OFFICERS.
i. ALLOCATION OF OFFICER COSTS. To the extent that Officers are
leased to UHI, costs associated with the lease of such Officers shall be
indirectly charged to UHI as provided in Section 3.b.ii.
b. BCBSUW AND UWS SERVICES. To the extent that BCBSUW/UWS Services are
rendered on behalf of or for the benefit of UHI, costs therefor shall be
allocated to UHI as follows:
i. DIRECT ALLOCATIONS. Costs associated with those BCBSUW/UWS
Services identified on Schedule 1 shall be directly charged to UHI on a monthly
basis.
ii. INDIRECT ALLOCATIONS. Cost allocations for those BCBSUW/UWS
Services identified on Schedule 2 ("Schedule 2 Services") shall be determined
annually for the next succeeding Fiscal Year ("Fiscal Year" shall mean January 1
through December 31) on the basis of utilization and cost studies performed by
UWS. Through the use of Indirect Allocation Methods, as described in Schedule 3
attached hereto, utilization of Schedule 2 Services shall be reduced to an
allocation percentage for each company in the BCBSUW/UWS Group. Each month all
costs associated with the utilization of Schedule 2 Services shall be multiplied
by the allocation percentage of UHI to determine UHI's allocable share of costs
for Schedule 2 Services. Notwithstanding the preceding, (i) allocation
percentages are subject to interim Fiscal Year adjustments to allocate more
accurately costs based on actual utilization by each company in the BCBSUW/UWS
Group, (ii) costs associated with Schedule 2 Services performed directly for UHI
shall be allocable to UHI only, and (iii) subject to approval by the Vice
President of Finance for the BCBSUW/UWS Group, the Indirect Allocation Method
used to allocate costs for specific Schedule 2 Services shall be subject to
agreement by the parties on an annual basis.(1) Schedule 2, attached hereto,
sets forth UHI's annual allocation percentage for costs and expenses associated
with Schedule 2 Services. Schedule 2 shall be amended annually.
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(1) Before granting approval of any negotiated change to the method of
allocating costs for a particular service, the following factors should be
considered: (i) compliance with FAS rules; (ii) other federal government
contracting implications; and (iii) feasibility.
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iii. CHARGEBACKS. Costs associated with those BCBSUW/UWS Services
identified on Schedule 4 ("Chargeback Services") either shall be (i) indirectly
allocated to UHI as discussed in Section 3.b.ii. if the cost is a general
expense for providing the Chargeback Service to all users; or (ii) directly
charged to UHI's cost center, if the cost is an expense specific to UHI's cost
center. Thus, costs associated with Chargeback Services shall be either
directly charged or indirectly allocated to UHI on a monthly basis, depending on
the nature of the cost.
c. FEES IN ADDITION TO ALLOCATED COSTS. To the extent that UHI leases or
utilizes the services of Officers from BCBSUW and/or UWS, and to the extent that
UHI utilizes BCBSUW/UWS Services, BCBSUW and/or UWS may charge UHI a reasonable
negotiated fee therefor, as set forth in Schedule 5.
4. SUBSTANTIATION OF AND REIMBURSEMENT FOR ALLOCATED COSTS
a. SUBSTANTIATION OF ALLOCATED COSTS. All costs and expenses shall be
allocated in a fair and reasonable manner. BCBSUW and UWS shall maintain
reasonable and appropriate operating procedures to allocate costs and expenses
so as to enable UHI's independent certified public accounting firm to audit such
costs and the allocation thereof. At the end of each month, BCBSUW and/or UWS
shall provide or make available to UHI appropriate documentation respecting the
costs and expenses that are allocated, either directly or indirectly, to UHI for
that month in sufficient detail to permit UHI to identify the sources of such
charges.
b. REIMBURSEMENT FOR ALLOCATED COSTS. At the end of each month, not
later than the 30th day of the following month, UHI shall promptly reimburse
BCBSUW and/or UWS for all costs and expenses incurred by BCBSUW and/or UWS in
furnishing or obtaining the Officers and Services provided for under Sections I
and II, which amount shall be based on the total of direct charges and indirect
allocations to UHI for the preceding month. Notwithstanding the preceding, UHI
reserves the right to offset any amounts due to BCBSUW and/or UWS under this
Agreement against other obligations of BCBSUW and/or UWS to UHI.
5. MODIFICATIONS TO BCBSUW/UWS SERVICES
a. MID-CONTRACT YEAR MODIFICATIONS. Each Contract Year, UHI shall be
required to utilize BCBSUW/UWS Services budgeted to UHI for that Contract Year,
unless otherwise negotiated by the parties. ("Contract Year" shall mean January
1 through December 31.) If, at any time during the Contract Year, UHI requires
services or other resources in addition to those budgeted to UHI by BCBSUW and
UWS, UHI may obtain such services or resources from a source outside of the
BCBSUW/UWS Group only if UHI's additional needs cannot be accommodated by BCBSUW
or UWS, or if otherwise agreed to by the parties.
b. CONTRACT YEAR RENEWAL MODIFICATIONS. UHI shall provide BCBSUW and/or
UWS with at least three (3) months' written notice prior to the next Contract
Year (unless the parties mutually agree upon a shorter period) of its intent to
do any of the following:
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i. Increase or decrease the number or utilization of Officers or
BCBSUW/UWS Services with respect to the next Contract Year;
ii. Obtain officers, services or other resources, which are available
either from BCBSUW or UWS, from a party outside the BCBSUW/UWS Group with
respect to the next Contract Year.
c. PROVISION OF SERVICES BY BCBSUW/UWS GROUP. BCBSUW and UWS have the
right to provide BCBSUW/UWS Services to UHI either directly or indirectly,
through any company in the BCBSUW/UWS Group. BCBSUW and UWS may provide
services and other resources to UHI indirectly through purchase from or contract
with a source outside the BCBSUW/UWS Group ("Outside Services") only with UHI's
consent. Costs for Outside Services shall be subject to a cost structure
negotiated by the parties hereto.
6. EXECUTION OF ANCILLARY AGREEMENTS
a. RIGHT TO REQUEST EXECUTION OF ANCILLARY AGREEMENTS. In the event of
the Change of Control (as hereinafter defined in this Section) of any party
hereto and while this Agreement remains in effect, BCBSUW, UWS or UHI may, for
the sole purpose of documenting in more detail the terms and respective rights
and obligations of the parties with respect to Officers and Services provided
hereunder, request that any of the following types of ancillary agreements be
executed by any parties hereto and effected thereby:
1. Officer Lease Agreement;
2. Office and Equipment Lease;
3. Management Information Systems Agreement;
4. Service Agreement(s); or
5. Any other Agreement deemed necessary or expedient by the parties
(together "Ancillary Agreements").
The terms of any executed Ancillary Agreement shall (i) be subject to
negotiation of the respective parties, and (ii) control in case of any
conflict with Sections 1 through 5 of this Agreement. Executed Ancillary
Agreements shall be attached to this Agreement as amendments hereto. "Change
of Control" for purposes of this section shall mean an event whereby a
person, group, or entity that is not affiliated with the BCBSUW/UWS Group
purchases all or substantially all of the assets or acquires the ownership of
50% or more of the voting stock of a party hereto.
b. EFFECT OF A REQUEST TO EXECUTE. If any party hereto requests the
execution of an Ancillary Agreement ("Requesting Party"), the parties shall have
sixty 60 days (unless the parties hereto mutually agree to a different period)
to negotiate and execute the Ancillary Agreement, during which time the parties
hereto shall remain obligated to perform in
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accordance with the terms of this Agreement. If after 60 days (unless a
different period is mutually agreed upon by the parties hereto) the requested
Ancillary Agreement has not been executed, the Requesting Party may terminate
this Agreement in accordance with Section 8.b.ii. The parties hereby agree
that any negotiations subject to this Section 6.b shall be performed in good
faith and every reasonable effort shall be made to effect the execution of a
requested Ancillary Agreement.
7. ADDITIONAL COVENANTS
a. AVAILABILITY OF RECORDS. BCBSUW and UWS shall make available to UHI,
for inspection, examination and copying, all of its books and records pertaining
to the Officers and BCBSUW/UWS Services provided to UHI each Contract Year:
i. At all reasonable times at the principal places of business of
BCBSUW and UWS, or at such other place as the parties hereto may otherwise agree
to and designate;
ii. In a form maintained in accordance with generally accepted
accounting principles and with any other general standards or laws applicable to
such book or record;
iii. For a term of at least five (5) years, from the end of each
Contract Year, irrespective of the termination of this Agreement.
b. CONFIDENTIALITY.
i. The parties acknowledge and agree that they may deliver to each
other information about themselves and their business which is nonpublic,
confidential or proprietary in nature. All such information, regardless of the
manner in which it is delivered, is referred to as "Proprietary Information."
However, Proprietary Information does not include information which 1. is or
becomes generally available to the public other than as a result of a disclosure
by the other party, 2. was available to the other party on a nonconfidential
basis prior to its disclosure by the disclosing party, or 3. becomes available
to the other party on a nonconfidential basis from a person other than by the
disclosing party. Unless otherwise agreed to in writing by the disclosing
party, the other party shall a. except as required by law, keep all Proprietary
Information confidential and not disclose or reveal any Proprietary Information
to any person other than those employed by the other party, or who is actively
and directly participating in the performance under this Agreement on behalf of
the other party ("Involved Persons"); b. cause each Involved Person to keep all
Proprietary Information confidential and not disclose or reveal any Proprietary
Information to any person other than another Involved Person; and c. not use the
Proprietary Information, and ensure that each Involved Person does not use the
Proprietary Information, for any purpose other than in connection with the
performance under this Agreement.
ii. Upon termination of this Agreement for any reason whatsoever,
each party shall promptly surrender and deliver to each other party all records,
materials,
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documents, data and any other Proprietary Information of the other parties and
shall not retain any description containing or pertaining to any Proprietary
Information of the other parties, unless otherwise consented to in writing by
a duly authorized officer of BCBSUW, UWS or UHI as the case may be.
c. COVENANT NOT TO COMPETE. BCBSUW and UWS agree that no company in the
BCBSUW/UWS Group (excluding UHI) will directly compete with the products or
markets of UHI during the term of this Agreement. BCBSUW and UWS further agree
that for a period of two (2) years following the termination of this Agreement
for any reason, no company in the BCBSUW/UWS Group (excluding UHI) will directly
compete with UHI in any market in which UHI operates or does business at the
termination of this Agreement.
d. COOPERATION. The parties hereto will fully cooperate with each other
and their respective counsel, if any, agents and accountants in connection with
any action to be taken in the performance of their obligations under this
Agreement. In the conduct of their affairs and the performance of this
Agreement the parties hereto shall, unless otherwise agreed, maintain the
working relationships of the parties on substantially the same terms as before
the execution of this Agreement. Notwithstanding the preceding, the parties do
not intend, nor should this Agreement be construed, to restrict in any way UHI's
ability to contract with any other person or entity to provide services similar
to or the same as those which are the subject of this Agreement.
8. TERM AND TERMINATION
a. TERM. This Agreement shall commence on the Effective Date and shall
automatically renew annually therefrom until such time as otherwise terminated
pursuant to Section 8.b.
b. TERMINATION.
i. This Agreement may be terminated by any party at any time by
giving one (1) years advance written notice to the nonterminating parties of its
intention to terminate.
ii. This Agreement may be terminated pursuant to Section 6.b by
the Requesting Party giving three (3) months advance written notice to the
nonterminating parties of its intention to terminate.
iii. This Agreement shall terminate immediately at the election of and
upon written notice from the non-defaulting party in the event of any of the
following:
(a) A party hereto becomes incapable of fully performing
its duties and obligations according to the terms of this
Agreement for the following reason(s): insolvency, bankruptcy,
or substantial cessation or interruption of its business
operations for any reason whatsoever;
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(b) A party hereto commits fraud or gross negligence in
performing its obligations under this Agreement;
HOWEVER, if the defaulting party provides the non-defaulting parties with prompt
notice of the event of default, the defaulting party shall have 30 days to cure
the defect, during which time the non-defaulting parties may not exercise the
termination right under this Section 8.b.iii.
iv. Liabilities After Termination. The termination of this Agreement
shall not limit the obligation or liabilities of any party hereto incurred but
not discharged prior to termination.
9. INDEMNIFICATION
a. INDEMNIFICATION BY UHI.
i. Notwithstanding anything to the contrary in this Agreement,
neither BCBSUW, UWS, nor any other company in the BCBSUW/UWS Group (other than
UHI), nor any person who is or was, at the time of any action or inaction
affecting UHI, a director, officer, employee or agent of BCBSUW, UWS or any
other company in the BCBSUW/UWS Group (other than UHI) (collectively
"Indemnitees") shall be liable to UHI for any action or inaction taken or
omitted to be taken by such Indemnitee; PROVIDED, HOWEVER, that such Indemnitee
acted (or failed to act) in good faith and such action or inaction does not
constitute actual fraud, gross negligence or willful or wanton misconduct.
ii. UHI shall, to the fullest extent not prohibited by law, indemnify
and hold harmless each Indemnitee against any liability, damage, cost, expense,
loss, claim or judgment (including, without limitation, reasonable attorneys'
fees and expenses) resulting to, imposed upon or incurred by such Indemnitee a.
in connection with any action, suit, arbitration or proceeding to which such
Indemnitee was or is a party or is threatened to be made a party by reason of
the Officers and BCBSUW/UWS Services provided to UHI hereunder; PROVIDED,
HOWEVER, that such Indemnitee acted (or failed to act) in good faith and such
action or inaction does not constitute actual fraud, gross negligence or willful
or wanton misconduct, or b. by reason of, arising out of or resulting from any
breach or misrepresentation by UHI under this Agreement.
b. INDEMNIFICATION BY BCBSUW AND UWS. BCBSUW and UWS, jointly and
severally, hereby agree to indemnify and hold harmless UHI, and its successors
and assigns, from and against any liability, damage, cost, expense, loss, claim
or judgment (including, without limitation, reasonable attorneys' fees and
expenses) resulting to, imposed upon or incurred by UHI by reason of, arising
out of or resulting from any breach or misrepresentation by BCBSUW or UWS under
this Agreement.
10. MISCELLANEOUS
a. ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder may be assigned or transferred by any of the parties hereto without
the prior written
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consent of the other parties. A Change of Control shall be deemed an
assignment requiring the consent of the other parties hereto.
b. AMENDMENT. The parties recognize that it may be desirable to alter
the terms of this Agreement in the future to take into account such events or
conditions as may from time to time occur. Any amendments to this Agreement
shall be in writing and shall be executed by all parties; however, Ancillary
Agreements need only be executed by the parties affected thereby.
c. WAIVER; REMEDIES. No failure or delay of a party in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. In
addition to any rights granted herein, the parties hereto shall have and may
exercise any and all rights and remedies now or hereafter provided by law except
as may be limited by Section 10.d of this Agreement.
d. RESOLUTION OF DISPUTES.
i. INFORMAL RESOLUTION.
(1) Coordinating Committee: Any conflicts or disputes
regarding occupancy, utilization or delivery of BCBSUW/UWS
Services, or scheduling, performance and utilization of
Officers necessary for the conduct of UHI's business shall be
submitted to a coordinating committee for resolution. The
coordinating committee shall consist of three (3) persons,
each of whom shall 1. represent the respective interest of a
party hereto, and 2. be mutually agreed upon by the parties
hereto. If the coordinating committee is unable to
unanimously resolve the dispute, then the parties hereto may
resort to the dispute resolution process provided for in
Section 10.d.ii.
(2) Audit Committee: Any conflicts or disputes
regarding allocation methods, allocated costs, offsets, fees
or any matter related thereto shall be submitted to an audit
committee for resolution. The audit committee shall consist
of three (3) persons, each of whom shall 1. represent the
respective interest of a party hereto, and 2. be mutually
agreed upon by the parties hereto. If the audit committee is
unable to unanimously resolve the dispute, then the parties
hereto may resort to the dispute resolution process provided
for in Section 10.d.ii.
ii. FORMAL RESOLUTION.
(1) Any dispute, controversy or claim between or among
the parties hereto that arises out of or relates to this
Agreement or any Ancillary Agreement entered into pursuant
hereto, and which otherwise
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has been unresolved by a coordinating committee pursuant to
Section 10.d.i(1) or an audit committee pursuant to Section
10.d.i(2) shall be settled by arbitration. In order to
initiate an arbitration, BCBSUW, UWS or UHI (as the case may
be) shall deliver a written notice of demand for arbitration
to the other affected party(ies). Within thirty (30) days of
the giving of such written notice, each party involved shall
appoint an individual as arbitrator (the "Party Arbitrators").
Within thirty (30) days of their appointment, the Party
Arbitrators shall collectively select one (or two if necessary
to constitute an odd total number of arbitrators) additional
arbitrator (together the "Panel Arbitrators") and shall give
the parties involved notice of such choice.
(2) The arbitration hearings shall be held in Milwaukee,
Wisconsin. Each party shall submit its case to the Panel
Arbitrators within sixty (60) days of the selection of the
Panel Arbitrators or within such longer period as may be
agreed by the Panel Arbitrators. The decision rendered by a
majority of the Panel Arbitrators shall be final and binding
on the parties involved. Such decision shall be a condition
precedent to any right of legal action arising out of the
arbitrated dispute. Judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
(3) Each involved party shall a. pay the fees and
expenses of its own Party Arbitrator, and pay its own legal,
accounting, and other professional fees and expenses, b.
jointly share in the payment of the fees and expenses of the
other one (or two) arbitrator(s) selected by the Party
Arbitrators, and c. jointly share in the payment of the other
expenses jointly incurred by the involved parties directly
related to the arbitration proceeding.
(4) Except as provided above, the arbitration shall be
conducted in accordance with the Commercial Arbitration Rules
of the American Arbitration Association.
e. NOTICES. All notices, requests, demands, and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally, or if mailed (by registered or certified mail, postage
prepaid, return receipt requested), or if transmitted by facsimile or e-mail, as
follows:
1. If to BCBSUW:
Xx. Xxxxx Xxxxxxxx
Blue Cross & Blue Shield United of Wisconsin
0000 Xxxxx XxxxxXxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
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Facsimile Telephone Number: (000) 000-0000
With copies to:
Xx. Xxxxx Xxxxxxx
Blue Cross & Blue Shield United of Wisconsin
X00X00000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Facsimile Telephone Number: (000) 000-0000
2. If to UWS:
Mr. C. Xxxxxx Xxxxx
United Wisconsin Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile Telephone Number: (000) 000-0000
3. If to UHI:
Xx. Xxxx Xxxxxxxxxx
United Heartland, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile Telephone Number: (000) 000-0000
Any notice or other communication given as provided in this Section 10.e,
shall be deemed given upon the first business day after actual delivery to
the party to whom such notice or other communication is sent (as evidenced by
the return receipt or shipping invoice signed by a representative of such
party or by the facsimile confirmation or e-mail return receipt). Any party
from time to time may change its address for purpose of notices to that party
by giving a similar notice specifying a new address.
f. RELATIONSHIP OF THE PARTIES. Negotiations relating to this Agreement
have occurred and shall continue to be carried out on an arm's length basis.
Further, the officers, services and other resources contemplated by this
Agreement shall be provided to UHI on an independent contractor basis. Nothing
in this Agreement shall be construed to create an employer-employee relationship
between UHI and Officers or any of the parties hereto.
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g. ENTIRE AGREEMENT. This Agreement, including the schedules and
exhibits referred to herein constitute the entire understanding and agreement of
the parties hereto and supersede all prior agreements and understandings,
written or oral, between the parties with respect to the transactions
contemplated herein. Provided, however, the foregoing shall not operate or be
construed to prohibit proof of prior understandings and agreements between or
among the parties to the extent necessary to properly construe or interpret this
Agreement. Notwithstanding the preceding, the parties acknowledge that there
are, and/or may be in the future, any number of independent third party
contracts between various companies in the BCBSUW/UWS Group for various services
and/or business arrangements, and any such contracts, whether written or oral,
shall survive the execution of this Agreement and any renewal hereof.
h. HEADINGS. The headings used in this Agreement have been inserted for
convenience and do not constitute matter to be construed or interpreted in
connection with this Agreement.
i. NO THIRD PARTY BENEFICIARIES. This Agreement is only for the benefit
of the parties hereto and does not confer any right, benefit, or privilege upon
any person or entity not a party to this Agreement.
j. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin (without giving effect to
principles of conflicts of laws) as to all matters, including, without
limitation, matters of validity, construction, effect, performance and remedies.
k. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under any present or future law, and if the
rights or obligations of any party under this Agreement will not be materially
and adversely affected thereby, 1. such provision will be fully severable, 2.
this Agreement will be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part hereof, 3. the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid, or unenforceable provision or by its
severance herefrom, and 4. in lieu of such illegal, invalid, or unenforceable
provision, there will be added automatically as part of this Agreement, a legal,
valid, and enforceable provision as similar terms to such illegal, invalid, or
unenforceable provision as may be possible.
l. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be deemed an original, but all of
which will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the Effective Date.
BLUE CROSS BLUE SHIELD UNITED OF WISCONSIN
By:
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Title:
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By:
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Title:
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UNITED WISCONSIN SERVICES, INC.
By:
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Title:
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UNITED HEARTLAND, INC.
By:
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Title:
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