SERVICE(S) AGREEMENT
THIS SERVICE AGREEMENT, made and entered into as of the date set forth in
Paragraph 1, below and between COST CARE, INC., (dba UNICARE MANAGED CARE
SERVICES), a Massachusetts corporation, hereinafter referred to as the medical
management organization (M.M.O.) and the party indicated in Paragraph 2, below,
hereinafter referred to as "G.P.I.".
M.M.O. hereby agrees to render the services ("SERVICES") defined below to G.P.I.
and G.P.I. hereby agrees to receive and compensate M.M.O. for such Services on
the terms and conditions set forth in this Service Agreement, hereinafter
sometimes referred to as "this Agreement".
1. DATE: AS OF: NOVEMBER 22, 1999
2. CLIENT: GENIUS PRODUCTS, INC.
3. COMMENCEMENT DATE: JANUARY 1, 2000
4. SERVICES & EXHIBIT P-3: M.M.O. shall perform the following Services for
G.P.I., as indicated by the initials of M.M.O. and G.P.I. for EXHIBIT P-3
mutually initialed below. Such Services shall be performed by M.M.O. only
within the United States of America.
G.P.I. M.M.O.
EXHIBIT P-3 - MedCall ------ ------
- Knowledgebase Web Access
5. SCHEDULE I AND EXHIBIT P-3 ATTACHED AND INCORPORATED IN AGREEMENT: The
following Schedule I and EXHIBIT P-3, as indicated by the initials of
M.M.O. and G.P.I, are attached to this Agreement and incorporated herein,
in their entirety by this reference.
G.P.I. M.M.O.
A. Schedule I--Management Reports ------ ------
B. EXHIBIT P-3--MEDCALL ------ ------
6. TERM. Either party may terminate this Agreement upon 30 days' prior written
notice to the other party.
7. FEES. G.P.I. shall pay monthly fees and other costs to M.M.O. for the
Services as indicated in Schedule I and Exhibit P-3. The first (1st)
monthly fee together with the Set-Up Fee, shall be payable on or before the
Commencement Date of this Agreement. Further, G.P.I. agrees to pay to
M.M.O. ALL FEDERAL, STATE, AND LOCAL taxes arising out of M.M.O.'s
provision of Services under this Agreement, and M.M.O. shall have the
right to collect any applicable taxes from G.P.I. on a monthly basis.
M.M.O. SHALL INVOICE G.P.I. FOR APPLICABLE TAXES WITH EVIDENCE OF TAXES
PAID.
8. PAYMENT OF FEES. The monthly fees for EACH CALENDAR month are due and
payable on the THIRTIETH (30th) of each SUCH MONTH (THE "DUE DATE"). All
other billed charges for which G.P.I. is responsible hereunder are due
within thirty (30) days of the date of receipt of invoice.
If the enrollment report indicating the number of currently enrolled
members is unavailable to G.P.I. as of the Due Date, the initial payment of
the monthly fee shall be determined on the basis of the latest available
monthly enrollment report. If there is any subsequent adjustment to the
number of members enrolled in such month, a corresponding adjustment in the
monthly fee shall be made, as appropriate, when the current monthly
enrollment information is received. In addition, M.M.O. shall have the
right to verify and/or to audit member counts.
In the event that any payment due M.M.O. under this Agreement is not made
by G.P.I. within
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twenty (20) days after the Due Date, M.M.O. may terminate this Agreement
effective fifteen (15) days following notification of such termination to
G.P.I. UNLESS PAID PRIOR TO SUCH FIFTEENTH (15TH) DAY. Upon the effective
date of such termination, M.M.O.'s obligation to provide any further
Services under this Agreement shall cease and M.M.O. shall be relieved and
discharged from any further responsibility hereunder. Both parties, shall,
however, remain liable for any obligations arising hereunder prior to the
effective date of such termination. In addition to the termination rights
reserved by M.M.O. hereunder, G.P.I. shall also be obligated to pay M.M.O.
a late payment charge of one percent (1%) per month (or the maximum amount
permitted by law, whichever is less) on any amount payable for Services
provided under this Agreement which remains unpaid on or after the
thirtieth (30th) day after the date such amount is due.
If G.P.I. pays for Services for more members than are eligible for these
Services, a retroactive adjustment in the form of a credit shall be applied
to the applicable monthly capitated fees. This credit shall only be allowed
for a maximum of ninety (90) days from the first month the overpayment was
made, even if the overpayment encompassed a longer period of time. It shall
also be limited to overpayments made in the preceding twelve month period.
9. STATISTICAL REPORTS. M.M.O. shall furnish statistical reports to G.P.I.
for which the Services are being rendered, as described in the Schedule of
Reports attached hereto marked Schedule I, and incorporated herein.
10. INFORMATION REQUIRED. On or before the fifteenth (15th) day of each
CALENDAR month, G.P.I. shall provide M.M.O. with the number of members
enrolled for the Services and the number of dependents enrolled for the
Services AS OF THE LAST DAY OF THE PREVIOUS CALENDAR MONTH. If the
dependent count is not available, M.M.O. shall use a standard dependent
factor of 2.38.
11. CONFIDENTIALITY. EACH PARTY MAY REQUIRE THE OTHER TO EXECUTE A
CONFIDENTIALITY AND HOLD HARMLESS AGREEMENT IN A FORM SATISFACTORY TO SUCH
PARTY PRIOR TO DISCLOSURE OF CONFIDENTIAL OR PROPRIETARY INFORMATION.
M.M.O. AND G.P.I. EACH SHALL ADHERE TO ALL LAWS REGARDING PRIVACY OF
INFORMATION PROTECTED BY LAW AND WILL USE COMMERCIALLY REASONABLE EFFORTS
TO SAFEGUARD SUCH DATA FROM UNAUTHORIZED ACCESS.
12. PROPRIETARY RIGHTS. Each party to this Agreement reserves the right to
control the use of its names and all symbols, trademarks and service marks
presently existing or hereafter established with respect to it. Neither
party shall use the name, symbols, trade marks or service marks of the
other party in advertising or promotional materials or otherwise, without
the prior written consent of the other party. Both parties shall cease any
and all usage immediately following the termination of this Agreement.
13. G.P.I.'S RESPONSIBILITY AND AUTHORITY/LIMITATION OF DAMAGES. It is further
understood and agreed that M.M.O. shall have no responsibility of any kind
to G.P.I. or any other person, firm, corporation or entity for any of the
following:
A. Verification of any individual's entitlement to group medical/health
plan coverage of insurance reimbursement;
B. Payment of any individual's medical, hospital, or other bills, debts,
obligations or other liabilities of any kind relating to any medical
or surgical treatment or confinement.
C. PROVISION BY ITSELF OR THIRD PARTIES of direct health care services to
covered individuals.
D. No claim may be made by either G.P.I. or M.M.O. against the other, or
any parent, affiliate, officer, director, member, agent or attorney of
such part, for any special,
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indirect, consequential or punitive damages in respect of any breach
or wrongful conduct (whether the claim is based on contract or tort or
duty imposed by law) arising out of or related to the terms of this
Agreement or any act, omission or event occurring in connection
therewith, including the termination of this Agreement. G.P.I. and
M.M.O. hereby waive, release and agree not to xxx upon any claim for
such damages.
14. FINAL AUTHORITY. M.M.O. SHALL HAVE NO RESPONSIBILITIES FOR DETERMINATION
OF MEDICAL CARE OR PAYMENT OF BENEFITS, AND M.M.O. MAY SO ADVISE CUSTOMERS
OF G.P.I.
15. INDEMNIFICATION AND HOLD HARMLESS. M.M.O. agrees to save, hold harmless
and indemnify G.P.I., its related corporations, AND THEIR RESPECTIVE
officers, directors, members, representatives, assigns, agents and
successors from and against any and all liability, claims, damages, suits,
losses, costs, including attorney's fees, and expenses relating to,
directly or indirectly, or arising from or growing out of, the wrongful or
negligent acts or omissions of M.M.O. in its performance of this Agreement
AND THE SERVICES RENDERED BY M.M.O. TO COVERED PERSONS.
It is further understood and agreed by the parties hereto that the
foregoing information, indemnification, and hold harmless undertaking of
M.M.O. is subject to the terms and conditions of Paragraph 13, captioned
"G.P.I.'s Responsibility and Authority/Limitation of Damages."
16. UNICARE'S INSURANCE. M.M.O. certifies it has in effect a PROFESSIONAL
liability insurance policy in the amount of $10,000,000.00 OR SHALL BE
SELF-INSURED BY ITS PARENT FOR AN EQUAL AMOUNT.
17. NOTICES. Any notice required hereunder shall not be effective, unless in
writing, SIGNED by an authorized officer of the party, and sent by
Certified or Registered mail. Notices are effective only when received.
UNICARE G.P.I.:
00000 Xxxxx Xxxxxxxxx, Xxx. 000 00000 Xx Xxxxxx Xxxx, Xxx. 000
Xxxxxxxxxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000
Attn: Vice President Operations Attn: President
18. INSOLVENCY. In the event that either party shall become insolvent, make a
general assignment for the benefit of creditors, suffer or permit the
appointment of a receiver for its business or its assets or shall avail
itself of or, become subject to any proceeding under the federal Bankruptcy
Code or any other statute of any state relating to insolvency or the
protection of rights of creditors, or become subject to rehabilitation,
then, at the option of the other party, this Agreement shall terminate and
be of no further force and effect.
19. LITIGATION. IN THE EVENT OF ANY CLAIM OR SUIT BY A THIRD PARTY IN
CONNECTION WITH THIS AGREEMENT AGAINST M.M.O. OR G.P.I., EACH SHALL FULLY
COOPERATE WITH THE OTHER TO OBTAIN ALL NECESSARY INFORMATION OR SUCH
TESTIMONY FOR SUCH CLAIM OR SUIT AND MAKE AVAILABLE (SUBJECT TO PRIVILEGE
AND CONFIDENTIALITY RESTRICTIONS) ALL BOOKS, RECORDS OR DOCUMENTS RELEVANT
TO SUCH CLAIM OR SUIT.
20. REASONABLE ATTORNEYS' FEES. If either party to this Agreement commences an
action against the other party arising out of or in connection with this
Agreement, the prevailing party shall be entitled to have and recover from
the losing party reasonable attorney's fees and cost of suit.
21. SIGNATORIES. Each party to this Agreement represents and warrants to the
other that the signatory on behalf of such party is authorized and
empowered to execute this Agreement and
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bind such party to the terms and provisions herein.
22. GOVERNING LAW. This Agreement shall be interpreted under and governed by
the laws of the State of California WITHOUT REGARD TO THE CHOICE OF LAW
PRINCIPLES.
23. SEVERABILITY. If any provision of this Agreement or the application
thereof to any party or circumstance is held to be invalid, such
invalidity shall not affect other provisions or applications of this
Agreement which can be given effect without the invalid provision or
application, and to this end the provisions of this Agreement are
severable.
24. NOTICE OF DEFAULT. If, in the event, M.M.O. is notified by G.P.I. that
it failed to perform any specific material service or act required of
M.M.O. by this Agreement, G.P.I. shall give M.M.O. not less than thirty
(30) days prior written notice, sent by Registered or Certified Mail,
informing M.M.O. of its failure to so perform or act and permitting
M.M.O. no less than ten (10) days opportunity in which to remedy or
commence to remedy the service or act, prior to G.P.I. terminating this
Agreement on the grounds of M.M.O.'s failure to render the services
required on M.M.O.'s part herein.
25. EXCLUSIVITY. DURING THE TERM OF THIS AGREEMENT NEITHER M.M.O. NOR ANY OF
ITS AFFILIATES SHALL PROVIDE SERVICES SUBSTANTIALLY SIMILAR TO THOSE SET
FORTH IN EXHIBIT P-3 TO ANY PERSON PRODUCING, DISTRIBUTING, PROVIDING OR
SELLING OVER THE INTERNET GOODS AND SERVICES SIMILAR OR IN COMPETITION
TO THOSE OF G.P.I. SUCH PERSONS INCLUDE WITHOUT LIMITATION,
XXXXXXXXXX.XXX, XXXXX.XXX, XXXXXXXX.XXX, XXXXXXXX.XXX, XXXXXXXXX.XXX AND
XXXXXXXXXXXXX.XXX.
26. REPRESENTATIONS, WARRANTIES AND COVENANTS. EACH PARTY REPRESENTS AND
WARRANTS TO THE OTHER PARTY THAT: (a) SUCH PARTY HAS THE FULL CORPORATE
RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO PERFORM
THE ACTS REQUIRED OF IT HEREUNDER, (b) THE EXECUTION OF THIS AGREEMENT BY
SUCH PARTY, AND THE PERFORMANCE BY SUCH PARTY OF ITS OBLIGATIONS AND DUTIES
HEREUNDER, DO NOT AND WILL NOT VIOLATE ANY AGREEMENT TO WHICH SUCH PARTY
IS A PARTY OR BY WHICH IT IS OTHERWISE BOUND, OR ANY APPLICABLE LAW,
RULE, REGULATION, ORDER OR JUDGMENT, AND (c) WHEN EXECUTED AND DELIVERED
BY SUCH PARTY, THIS AGREEMENT WILL CONSTITUTE THE LEGAL, VALID AND
BINDING OBLIGATION OF SUCH PARTY, ENFORCEABLE AGAINST SUCH PARTY IN
ACCORDANCE WITH ITS TERMS.
27. WAIVER, SEVERABILITY, CUMULATIVE REMEDIES. NO FAILURE OR DELAY ON THE
PART OF EITHER PARTY IN EXERCISING ANY RIGHT OR REMEDY HEREUNDER WILL
OPERATE AS A WAIVER THEREOF OR ANY OTHER PROVISION. NO PROVISION OF THIS
AGREEMENT MAY BE WAIVED EXCEPT IN WRITING SIGNED BY THE PARTY GRANTING
SUCH WAIVER. IN THE EVENT THAT ANY PROVISION OF THIS AGREEMENT IS HELD
INVALID BY A COURT WITH JURISDICTION OVER THE PARTIES TO THIS AGREEMENT,
(a) SUCH PROVISION WILL BE DEEMED TO BE RESTATED TO REFLECT AS NEARLY AS
POSSIBLE THE ORIGINAL INTENTIONS OF THE PARTIES IN ACCORDANCE WITH
APPLICABLE LAW AND (b) THE REMAINING TERMS, PROVISIONS, COVENANTS AND
RESTRICTIONS OF THIS AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT.
EXCEPT WHERE OTHERWISE SPECIFIED HEREIN, THE RIGHTS AND REMEDIES GRANTED
TO A PARTY UNDER THIS AGREEMENT ARE CUMULATIVE AND IN ADDITION TO, AND
NOT IN LIEU OF, ANY OTHER RIGHTS OR REMEDIES WHICH THE PARTY MAY POSSESS
AT LAW OR IN EQUITY.
28. NO ASSIGNMENT. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS THEREUNDER
SHALL NOT BE ASSIGNED, DELEGATED OR TRANSFERRED, WHETHER VOLUNTARILY OR
INVOLUNTARILY, DIRECTLY OR INDIRECTLY, WHETHER BY CHANGE OF CONTROL OR
OTHERWISE, INCLUDING TO ANY SUCCESSOR-IN-INTEREST TO ANY PARTY'S ASSETS
OR BUSINESS, WITHOUT THE WRITTEN PRIOR CONSENT OF THE OTHER PARTY WHICH
SHALL BE GIVEN IN THE SOLE DISCRETION OF SUCH PARTY. ANY ASSIGNMENT OR
TRANSFER IN VIOLATION OF THE TERMS HEREOF SHALL BE NULL AND VOID AND OF
NO EFFECT.
29. HEADINGS, CONSTRUCTION. THE SECTION HEADINGS IN THIS AGREEMENT ARE
INSERTED AS A
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MATTER OF CONVENIENCE AND SHALL NOT DEFINE, LIMIT, OR DESCRIBE THE SCOPE
OF EXTENT OF SUCH SECTION, OR AFFECT THE INTERPRETATION OF THIS
AGREEMENT. THIS AGREEMENT SHALL BE CONSTRUED WITHOUT REGARD TO ANY
PRESUMPTION OR RULE REQUIRING CONSTRUCTION AGAINST THE DRAFTING PARTY.
30. COUNTERPARTS, FACSIMILE. THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS,
ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE SINGLE AGREEMENT BETWEEN
THE PARTIES. A FACSIMILE TRANSMISSION OF THIS AGREEMENT BEARING A
SIGNATURE ON BEHALF OF A PARTY HERETO SHALL BE LEGAL AND BINDING ON SUCH
PARTY.
31. ENTIRE AGREEMENT, AMENDMENTS. THIS AGREEMENT AND ANY AND ALL SCHEDULES
AND EXHIBITS ATTACHED HERETO, ALL OF WHICH ARE HEREBY INCORPORATED BY
REFERENCE, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF. THIS AGREEMENT SUPERSEDES, AND THE
TERMS OF THIS AGREEMENT GOVERN, ANY PRIOR OR COLLATERAL AGREEMENTS,
WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF WITH
THE EXCEPTION OF ANY PRIOR CONFIDENTIALITY AGREEMENTS BETWEEN THE
PARTIES. THIS AGREEMENT MAY ONLY BE AMENDED OR MODIFIED BY MUTUAL
AGREEMENT OF AUTHORIZED REPRESENTATIVES OF PARTIES IN WRITING.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the dates and
at the places hereinbelow indicated.
DATED: November 24, 1999 COST CARE, INC. (dba UNICARE MANAGED
At Xxxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000 CARE SERVICES):
By: /s/ XXXXX XXXXXXXX
----------------------------
Title: VP OPERATIONS
-------------------------
By: /s/ [Illegible]
----------------------------
Title: DIRECTOR OF FINANCE
-------------------------
DATED: December 2, 1999 GENIUS PRODUCTS, INC.:
At Xxx Xxxxx, XX 00000
By: /s/ XXXXXX XXXXXX
----------------------------
Title: PRESIDENT
-------------------------
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SCHEDULE I
MANAGEMENT REPORTS
PROGRAM TYPE OF REPORT FREQUENCY COST
------- -------------- --------- ----
MedCall Summary of Calls/by Type Monthly Included in Program Fees
Standard reports are issued thirty (30) days following end of EACH CALENDAR
MONTH, unless otherwise noted. Any change to standard report structure for
divisional accounts shall incur $95.00 per hour programming charges. Requests
for report development and/or generation other than ON A CALENDAR MONTH shall
also cost $95.00 per hour PROGRAMMING CHARGES.
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EXHIBIT P-3
TO
SERVICE AGREEMENT
MEDCALL
1. The MedCall line shall provide CUSTOMERS OF G.P.I. with a direct line to
M.M.O.'s staff of medical professionals who are available to answer commonly
asked questions and to provide general information.
2. The types of information made available to callers may include:
- Answers to general questions on medical conditions, treatment
alternatives, medications and potential side effects.
- System Triage using on-line assessment software.
- Managed health care programs available to the Covered Person.
- Available resources, including local, state, community and
self-help agencies.
- Toll-free telephone numbers for foundations and non-profit
national organizations that offer additional support and resources.
- Educational information as a back-up to telephone conversations on
an as needed basis.
- Follow-up on selected cases via telephone to verify closure on
the caller's concerns and/or treatment.
3. MedCall staff shall provide network channeling, when applicable.
4. CUSTOMERS OF G.P.I. may access this Program seven (7) days a week,
24-hours per day by calling a nationwide Toll Free Number.
5. Each inquiry shall be answered by a M.M.O. professional at the time the
call is received. Should medical, technical or research information be
needed, M.M.O. shall use best efforts to return such calls by the next
working day. Records shall be maintained on a CONFIDENTIAL individual case
basis.
6. M.M.O. professionals shall not medically diagnose or act outside
licensure requirements.
7. M.M.O. SHALL PROVIDE THE SERVICES TO THE HIGHEST PROFESSIONAL STANDARDS.
8. M.M.O. shall provide access to MedCall services via a unique 800 number
and shall answer phones with a custom answer phrase. This shall be provided
for a fee of $0.10 per member per month for call volume up to 300 calls per
10,000 members, $0.13 per member per month for call volume greater than 300
calls per 10,000 members AND LESS THAN 400 CALLS PER 10,000 MEMBERS. $0.18
PER MEMBER PER
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MONTH FOR CALL VOLUME GREATER THAN 400 CALLS PER 10,000 MEMBERS AND LESS
THAN 500 CALLS PER 10,000 MEMBERS. $0.21 PER MEMBER PER MONTH FOR CALL
VOLUME GREATER THAN 500 CALLS PER 10,000 MEMBERS AND LESS THAN 600 CALLS PER
10,000 MEMBERS. $0.25 PER MEMBER PER MONTH FOR CALL VOLUME GREATER THAN 600
CALLS PER 10,000 MEMBERS AND LESS THAN 700 CALLS PER 10,000 MEMBERS.
ONLY $0.10 AND $0.13 OPTIONS WILL BE ADMINISTERED DURING YEAR 1 OF THIS
AGREEMENT.
9. M.M.O. shall provide access to Healthwise Knowledgebase through a hotlink
on G.P.I.'s site for a fee of $0.05 per member per month.
10. M.M.O. shall provide a unique log-on page for G.P.I. members.
G.P.I. M.M.O
[Illegible] / [Illegible]
-------------------------
[Illegible] / [Illegible]
-------------------------
DATE / DATE
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