Exhibit 10.7
[TRIZETTO ENABLING HEALTH EBUSINESS LOGO]
SERVICES AGREEMENT
This SERVICES AGREEMENT ("Agreement") is entered into by and between
APS Healthcare Bethesda, Inc. ("CLIENT") and The TriZetto Group, Inc., a
Delaware corporation ("TriZetto"), as of this 28th day of February, 2002.
Whereas, TriZetto offers certain connectivity, assessment and
transformation services and is an application services provider, which delivers
pre-integrated and hosted best of class packaged software applications,
transaction services and other management services to clients; and
Whereas, CLIENT wishes to contract with TriZetto to provide certain
services.
Now therefore, in consideration of the mutual covenants and promises
herein contained, the parties hereto agree as follows:
1. TRIZETTO SERVICES.
a) SERVICES. TriZetto shall provide the "Services" and "Supported
Applications" described in EXHIBIT A of this Agreement at the "Service
Levels" set forth in EXHIBIT B. The Services and Service Levels may be
modified only by mutual written agreement between TriZetto and CLIENT.
TriZetto will provide application and operation support services to
CLIENT only for the software application programs (the "Supported
Applications") specifically identified in EXHIBIT A.
b) LICENSE. In accordance with this Agreement, TriZetto hereby provides
CLIENT, a restricted, non-transferable and nonexclusive license to use
the Supported Applications for the sole purpose of supporting the
internal operations of CLIENT's business. CLIENT may use the Supported
Applications only to process CLIENT's own data and that of CLIENT's
patients or members. CLIENT may not use the Supported Applications in a
resale capacity, to process and/or analyze the data of a third party as
a service bureau, or on any hardware and with any operating system or
applications software other than as approved in advance and in writing
by TriZetto. CLIENT shall be entitled to provide access to and use of
the Services and Supported Applications by individuals who have been
engaged by CLIENT as independent contractors (each a "Contractor")
solely for the purpose of performing claims processing services with
respect to Client's members that are not included in the scope of
Services that TriZetto is required to perform under this Agreement;
provided, however, that the total number of such Contractors shall not
exceed at any time 20% of the total number of Client employees and
Contractors performing such claims processing services. CLIENT shall
require each Contractor to execute a confidentiality agreement in a
form satisfactory to TriZetto and shall be responsible for each
Contractor's use of any Supported Application in violation of this
Agreement. While CLIENT agrees that it shall not offer the Supported
Applications to third parties on a service bureau or application
service provider basis, CLIENT may provide its customers read-only
access to the Supported Applications by way of remote terminals for the
purpose of determining eligibility and claims status with respect to
Client's members. Client will maintain the required connectivity to
customer locations in order to provide such access. Access to the
Supported Applications may be made only to those customers who have
executed a non-disclosure agreement in a form satisfactory to TriZetto
and with whom CLIENT has a contractual relationship in which CLIENT
provides services to such entities in addition to Supported
Applications.
c) CONNECTIVITY SOLUTIONS. CLIENT will utilize the desktops, network,
sergvers, printers, equipment, application software and operating
system software identified on EXHIBIT D (collectively, the "Required
Equipment"). CLIENT acknowledges and agrees that the Service Levels are
predicated and conditioned upon CLIENT's use of the Required Equipment.
Except as otherwise set forth in EXHIBIT D, CLIENT shall have sole
responsibility for maintaining the Required Equipment. The Supported
Applications will run on CLIENT's desktop and server operating systems,
provided that such systems support an industry standard internet
browser (e.g., Microsoft Internet Explorer or Netscape Navigator) and
TCP/IP connectivity to TriZetto's data center.
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d) ALTERNATIVE APPLICATION. In the event that a vendor of any Supported
Application, other than a Supported Application owned by TriZetto,
ceases to provide maintenance or support to its customer base or to
TriZetto, or has materially breached its obligations to TriZetto, upon
prior written notice to CLIENT, TriZetto shall replace the Supported
Application with an alternative application(s) containing substantially
similar functionality, which application(s) shall thereafter be
considered a Supported Application hereunder in lieu of the one
replaced. During the period in which the replacement Supported
Application is in production, TriZetto shall be entitled to the fees
specified in EXHIBIT C related to the replaced application; provided,
however, that, if TriZetto's costs to provide such alternative
application(s) is materially different than those related to the
replaced application, then the parties will mutually agree upon an
equitable adjustment to such fees. If CLIENT is unsatisfied with the
replacement Supported Application after it has been in production for a
period of sixty (60) days (the "Test Period"), then CLIENT shall have a
one-time right to require TriZetto to remove such application as a
Supported Application by giving TriZetto written notice at any time
during a 60 day period following the Test Period. CLIENT's notice of
removal shall specify the effective date of such removal, which shall
be no sooner than six months after the date of Client's notice.
e) CHANGE CONTROL PROCESS. CLIENT may, at any time by a written work order
("Work Order"), propose additions to, deletions of, revisions to, or
changes to the Services. TriZetto may also propose a Work Order to
CLIENT for changes related to the Services. TriZetto shall respond in
writing to a CLIENT Work Order request within 15 days of receipt or as
otherwise agreed to by the parties, advising CLIENT of any cost and
schedule impacts. CLIENT will pay for TriZetto's efforts in responding
to a Work Order at its then-current standard rates, unless otherwise
agreed to by the parties. TriZetto and CLIENT shall negotiate in good
faith and in a timely manner as to the price of, the impact on the
schedule of, and other terms resulting from any Work Orders. The
professional consulting services portion of a Work Order shall be
priced using the professional services rates set forth in EXHIBIT C. If
the parties reach an agreement in writing, the Work Order will be
incorporated herein, the terms of the Agreement shall be modified
accordingly, and TriZetto shall begin to work on the Work Order. Such
Work Orders shall in no way constitute an agreement other than as
provided pursuant to this Agreement nor in any way amend or supercede
any of the other provisions of this Agreement. If CLIENT notifies
TriZetto in writing not to proceed with a Work Order from TriZetto
within 15 business days of receipt, then the Work Order shall be deemed
withdrawn and TriZetto shall take no further action in respect of it.
If TriZetto has not received any notice within this 15 business day
period, then CLIENT shall be deemed to have advised TriZetto to
proceed. The process described above for adding, deleting, revising or
changing the Services is referred to herein as the "Change Control
Process."
2. INVOICING AND PAYMENT TERMS.
a) INVOICES. TriZetto will invoice CLIENT monthly in advance for the
Services and Supported Applications to be provided to CLIENT during the
upcoming month at the applicable rates and for the amounts set forth in
EXHIBIT C. TriZetto shall begin invoicing for such services when
TriZetto makes the Services available for use or as otherwise provided
in EXHIBIT C.
b) PAYMENT TERMS; INTEREST. CLIENT will pay TriZetto all undisputed fees
within 30 days of the invoice date. If CLIENT fails to pay the invoice
by its due date, TriZetto may charge interest of the lesser of 1.5% or
the maximum permissible rate per month on any undisputed outstanding
balance and, upon CLIENT's failure to pay outstanding undisputed
balances following the due date and subsequently within 10 days notice
from TriZetto, TriZetto may suspend Services and Supported Applications
until such outstanding balances are paid. Any disputes regarding fees
shall be resolved in accordance with Section 10.
c) TAXES. The Parties' respective responsibilities for taxes arising under
or in connection with this Agreement will be as follows:
(i) Each party will be responsible for any personal property taxes on
property it owns or leases, for franchise and privilege taxes on
its business, and for taxes based on its net income or gross
receipts.
(ii) TriZetto will be responsible for any sales, use, excise,
value-added, services, consumption, and other taxes and duties
payable by TriZetto on any goods or services used or consumed by
TriZetto in providing the Services where the tax is imposed on
TriZetto's acquisition or use of such goods or services and the
amount of tax is measured by TriZetto's costs in acquiring such
goods or services.
(iii) CLIENT will be responsible for any sales, use, excise,
value-added, services, consumption, or other tax that is assessed
on the provision of the Services as a whole, or on any particular
Service received by CLIENT from TriZetto.
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(iv) In the event that a sales, use, excise, value added, services,
consumption, or other tax is assessed on the provision of any of
the Services, the parties will work together to segregate the
payments under this Agreement into three payment streams: (i)
those for taxable Services; (ii) those in which TriZetto functions
merely as a payment agent for CLIENT in receiving goods, supplies,
or services (including leasing and licensing arrangements); and
(iii) those for other nontaxable Services.
(v) The parties agree to cooperate with each other to enable each to
more accurately determine its own tax liability and to minimize
such liability to the extent legally permissible. TriZetto's
invoices will separately state the amounts of any taxes TriZetto
is collecting from CLIENT. Each party will provide and make
available to the other any resale certificates, information
regarding out-of-state or out-of-country sales or use of
Equipment, materials or services, and other exemption certificates
or information reasonably requested by either party.
(vi) TriZetto will promptly notify CLIENT of, any claim for taxes
asserted by applicable taxing authorities for which CLIENT is
responsible under this Agreement, it being understood that with
respect to any claim arising out of a form or return signed by a
party to this Agreement, such party will have the right to elect
to control the response to and settlement of the claim. If CLIENT
requests TriZetto to challenge the imposition of any tax, TriZetto
will coordinate with CLIENT the response to and settlement of, any
such claim for taxes and CLIENT will reimburse TriZetto for the
reasonable legal fees and expenses it incurs in such challenge.
CLIENT will be entitled to the entirety of any tax refunds or
rebates granted to the extent such refunds or rebates are of taxes
that were paid by CLIENT.
3. AUDITS, ACCESS AND EXCLUSIVITY.
a) AUDITS.
i) TRIZETTO QUALITY ASSESSMENT AUDITS. TriZetto will conduct regular
quality assessment audits designed to assure the integrity of the
processes it employs in the performance of the Transaction
Services described in EXHIBIT A of this Agreement. TriZetto will
use these quality assessment audits to determine its monthly
performance for each of the Service Levels described in EXHIBIT B
and will provide these results to the CLIENT monthly.
ii) CLIENT ONGOING VALIDATION AUDIT (COVA). The CLIENT and TriZetto
will jointly conduct a periodic audit of the claims systems
configuration, which are part of the Transaction Services. This
audit is referred to as COVA and is performed by selecting
specific paid claims that are designed to test the interaction of
the claims system's benefit plan, provider file and provider fee
configurations. As a part of the COVA process the CLIENT is asked
to review a sample of their claims in order to insure that the
claims system is producing the payment results anticipated by the
CLIENT. The CLIENT and TriZetto will mutually agree upon the
frequency with which these COVA reviews will take place and the
specific configuration components that will be tested through
each review.
(iii)CLIENT INITIATED AUDITS.
A) OPERATIONAL AUDITS. Upon reasonable prior written notice from
CLIENT (but in no case less than two weeks prior written
notice), and subject to TriZetto or TriZetto's agents'
reasonable security requirements and upon execution of
TriZetto's standard confidentiality agreements, TriZetto
shall, and shall cause its subcontractors and suppliers to,
provide to CLIENT (and internal and external auditors,
inspectors, regulators and other representatives that CLIENT
may designate from time to time) access at reasonable hours to
TriZetto personnel, to the facilities at or from which
Services are then being provided and to TriZetto records and
other pertinent information, all to the extent relevant to the
Services and TriZetto's obligation under this Agreement. Such
access shall be provided for the purpose of examining
TriZetto's performance of the Services, including (i)
verifying the integrity of Client Data (defined below); (ii)
examining the systems that process, store, support and
transmit that data; (iii) examining the controls (e.g.,
organizational controls, input/output controls, system
modification controls, processing controls, system design
controls, and access controls) and the security, disaster
recovery and back-up practices and procedures; (iv) examining
TriZetto's measurement, monitoring and management tools; and
(v) enabling CLIENT and the related parties to meet applicable
legal, regulatory and contractual requirements. TriZetto shall
provide any assistance reasonably requested by CLIENT or its
designee in conducting any such audit, including installing
and operating audit software.
B) FINANCIAL AUDITS. Upon reasonable notice from CLIENT, and
subject to TriZetto or TriZetto agents' security requirements
and execution of TriZetto's standard confidentiality
agreements,
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TriZetto shall, and shall cause its subcontractors and
suppliers to, provide to CLIENT (and internal and external
auditors, inspectors, regulators and other representatives
that CLIENT may designate from time to time) access at
reasonable hours to TriZetto personnel and to TriZetto records
and other pertinent information, all to the extent relevant to
the performance of TriZetto's financial obligations under this
Agreement. Such access shall be provided for the sole purpose
of performing audits and inspections relating to the Services
to verify the accuracy of TriZetto's fees to see that TriZetto
is exercising reasonable procedures to control the resources
provided by TriZetto to CLIENT, and that the Services are
being provided in accordance with the Service Levels. TriZetto
shall provide any assistance reasonably requested by CLIENT or
its designee in conducting any such audit and shall make
requested personnel, records and information available during
the term of this Agreement and thereafter during the period
specified in TriZetto's records retention policy, as it may be
reasonably adjusted from time to time. If any such audit
reveals an overcharge or undercharge by TriZetto or CLIENT and
neither TriZetto nor CLIENT disputes the amount questioned by
such audit, then TriZetto or CLIENT, as applicable, shall
promptly pay to the other Party the amount of such overcharge
or undercharge as the case may be.
C) RECORDS. TriZetto shall maintain and provide access upon
request to the portion of records, documents and other
information required to meet CLIENT's audit rights under this
Agreement. TriZetto shall retain these records in accordance
with TriZetto's records retention policy as it may be
reasonably adjusted from time to time; provided, however, that
TriZetto shall at all times comply fully with all laws
applicable to CLIENT regarding records retention, to the
extent that CLIENT provides TriZetto with prior written notice
of the same.
D) CLIENT RESPONSIBILITIES. CLIENT shall not be given access to
the proprietary information of other TriZetto customers or to
TriZetto locations that are not related to CLIENT or the
Services or to information that is not reasonably necessary to
perform the audit. In performing audits, CLIENT shall endeavor
to avoid unnecessary disruption of TriZetto's operations and
unnecessary interference with TriZetto's ability to perform
the Services in accordance with the Service Levels. In the
event that CLIENT disrupts TriZetto's operations or interferes
with TriZetto's ability to perform the Services, TriZetto
shall be relieved of Service Levels. Following any audit,
CLIENT shall conduct (in the case of an internal audit), or
request its external auditors or examiners to conduct, an exit
conference with TriZetto to obtain factual concurrence with
issues identified in the review. TriZetto shall be given no
less than three business days prior written notice before
obtaining access. CLIENT shall not request more than two
operational audits and one financial audit per calendar year,
except in the event TriZetto has materially failed to meet its
performance obligations hereunder. Audits requested by a
governmental body or regulatory authority having jurisdiction
over CLIENT or TriZetto shall not be limited. CLIENT shall use
reasonable efforts to conduct the audit efficiently and
expeditiously and at reasonable business hours.
D) TRIZETTO RESPONSE. TriZetto and CLIENT shall meet to review
each audit report promptly after the issuance thereof.
TriZetto will respond to each audit report in writing within
thirty (30) days from receipt of such report, unless a shorter
response time is specified in such report. TriZetto and CLIENT
shall develop and agree upon an action plan to promptly
address and resolve any deficiencies, concerns and/or
recommendations in such audit report and TriZetto, at its own
expense, shall undertake remedial action in accordance with
such action plan and the dates specified therein.
E) RESPONSE TO GOVERNMENT AUDITS. If an audit by a payer,
governmental body or regulatory authority having jurisdiction
over CLIENT or TriZetto results in a finding that TriZetto or
CLIENT is not in compliance with a generally accepted
accounting principle or other audit requirement or any rule,
regulation or law relating to the performance of its
obligations under this Agreement, TriZetto or CLIENT, as the
case may be, shall, at its own expense and within the time
period specified by such auditor, address and resolve the
deficiency(ies) identified by such governmental body or
regulatory authority. The two week prior written notice set
forth in Section 3a)(iii)A) shall not apply to audits
requested by governmental or regulatory authorities; provided,
however, that CLIENT shall use commercially reasonable efforts
to provide notice to TriZetto as earlier as possible.
F) SALES AND MARKETING EFFORTS. Upon no less than three weeks
prior written notice, TriZetto agrees to make a representative
available (which may be the account representative) to assist
CLIENT's marketing and sales activities designed to increase
its membership base. Such availability shall be provided at a
site designated by CLIENT. With respect to such activities,
CLIENT agrees to reimburse TriZetto for its out of pocket
costs, including travel expenses, and to pay TriZetto for such
representative's time at the professional services rates set
forth in EXHIBIT C; provided,
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however, that Client shall not be required to pay for such
representative's time associated with up to six marketing or
sales events per calendar year.
G) AUDIT COSTS. CLIENT will be responsible for all costs
associated with the conduct of CLIENT initiated audits or
government audits, if an audit fee is assessed by the
applicable government agency, unless such costs are directly
related and attributable to TriZetto's negligence or willful
misconduct in connection with its performance under this
Agreement.
b) ACCESS. CLIENT will provide TriZetto prompt and adequate access to
CLIENT's systems and facilities as needed for TriZetto to perform its
obligations under this Agreement. TriZetto shall always use all
commercially reasonable efforts to avoid any disruption to CLIENT's
business.
c) REMOVAL OF CLIENT'S MEMBERS. CLIENT will not remove any of CLIENT's
members who have active accounts processed by the Services from use of
the Services for the term of this Agreement unless such member is no
longer associated with CLIENT. If CLIENT converts any member from its
then current system or service to system or service, CLIENT will
convert such member to the use of the Services provided under this
Agreement. Any additional fees required for the conversion of such
members will be incurred and paid for by CLIENT.
4. OWNERSHIP OF SOFTWARE, DATA AND RECORDS.
a) RIGHT TO SOFTWARE.
i) TRIZETTO'S RIGHT TO SOFTWARE. Except as set forth in EXHIBIT A,
TriZetto represents and warrants that TriZetto, to the best of
its knowledge, owns or has the right to use and license all the
hardware and software components used to provide Services under
this Agreement for the Supported Applications.
ii) CLIENT'S RIGHT TO SOFTWARE. CLIENT represents and warrants that
CLIENT, to the best of its knowledge, owns or has the right to
use the legacy hardware and software components, if any, that it
will continue to use during the term of this Agreement.
b) INFRINGEMENT ACTION. If CLIENT promptly notifies TriZetto in writing of
a third party action against CLIENT that any Service or Supported
Application infringes upon a United States registered patent or a
United States registered copyright, TriZetto will defend such action at
its expense and will pay any costs or damages that are finally awarded
against CLIENT resulting from such action. CLIENT shall also provide
TriZetto with its reasonable cooperation (at TriZetto's expense) and
full authority to defend or settle the action. TriZetto will not pay
any such damages, however, if the claim of infringement is caused by
(1) CLIENT's misuse of the Services; (2) CLIENT's failure to use
corrections or enhancements made available by TriZetto; (3) CLIENT's
use of the Services in combination with any product or information not
provided or authorized in writing by TriZetto; or (4) information,
direction, specification or materials provided by CLIENT or any third
party. If any Service or Supported Application is, or in TriZetto's
opinion is likely to be, held to be infringing, TriZetto shall at its
expense and option either (a) procure the right for CLIENT to continue
using it, (b) replace it with a noninfringing equivalent, (c) modify it
to make it noninfringing or (d) terminate the Services. The foregoing
remedies constitute CLIENT's sole and exclusive remedies and TriZetto's
entire liability with respect to infringement, except for third party
claims pursuant to Section 9.
c) CLIENT'S USE OF SOFTWARE. CLIENT acknowledges and understands that
TriZetto may provide to CLIENT (i) TriZetto owned software, and/or (ii)
software applications owned by third parties which TriZetto uses under
license agreements with such third parties. CLIENT acknowledges and
agrees that (i) title to all such TriZetto software and software
applications remains with and is subject to the proprietary rights of
TriZetto or its third party vendors, and (ii) such software and
software applications may contain trade secrets and other valuable
proprietary information of TriZetto or its third party vendors. Except
as set forth herein, CLIENT may not grant any sublicenses to or
otherwise make such software, such software applications, the Supported
Applications, or the documentation available to any other person,
entity or business. CLIENT agrees that CLIENT will not reverse
assemble, reverse compile, reverse engineer, modify, reproduce,
distribute, prepare derivative works based on, or demonstrate such
software, such software applications or the Supported Applications in
whole or in part.
d) DATA AND RECORDS. TriZetto understands and agrees that TriZetto
receives no ownership rights in the materials, data or records
furnished by CLIENT ("CLIENT's Data") and that CLIENT receives no
ownership rights to the Supported Applications. CLIENT represents and
warrants that CLIENT and those providing information to CLIENT have the
right to transmit to TriZetto and receive any materials, data or
records from TriZetto, that are required to enable TriZetto to perform
its obligations under this Agreement. Except as set forth herein or as
specifically authorized by CLIENT in writing, TriZetto will not
disclose CLIENT's Data to a third party or make any other use of
CLIENT's Data.
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5. CONFIDENTIALITY.
a) Both TriZetto and CLIENT have made and will continue throughout the
term of this Agreement to make available to the other party
confidential and proprietary materials and information ("Proprietary
Information"). All material and information provided by one party to
the other relating to the business, policies, procedures, customs and
forms of providing party or any of its affiliates, including but not
limited to CLIENT's Data, as well as information previously divulged or
delivered regarding the aforementioned subject matter, is hereby
designated as confidential and proprietary and shall be considered to
be Proprietary Information. Except for confidential patient information
included in CLIENT's Data, whether or not de-identified, the parties
agree that the obligations set forth above in this Section 5 do not
apply to materials or information that: (i) are already, or otherwise
become, generally known by third parties as a result of no act or
omission of the receiving party; (ii) subsequent to disclosure
hereunder are lawfully received from a third party having the right to
disseminate the information and without restriction on disclosure;
(iii) are generally furnished to others by the disclosing party without
restriction on disclosure; (iv) were already known by the receiving
party prior to receiving them from the disclosing party and were not
received from a third party in breach of that third party's obligations
of confidentiality; or (v) are independently developed by the receiving
party without the use of Proprietary Information of the disclosing
party. As contemplated in Section 1b), the parties acknowledge and
agree that Contractors and certain of Client's customers may obtain
access to TriZetto's Proprietary Information. CLIENT agrees that the
provisions of this Section 5 shall apply to such Contractors and
customers and that CLIENT shall be responsible for any breach of such
provisions by any such Contractor or customer.
b) Each party shall maintain the confidentiality of the other's
Proprietary Information and will not disclose such Proprietary
Information without the written consent of the other party, except in
connection with providing Services in accordance with this Agreement or
as otherwise permitted hereunder. Each party shall also keep
confidential the terms of this Agreement and/or any exhibits attached
hereto.
c) Neither of the parties' obligations of confidentiality will prevent or
prohibit the parties from providing access to Proprietary Information
upon request of a state or federal regulatory agency or authority as
may be required by law or judicial or administrative process.
Notwithstanding the foregoing, in the event of any requested access to
Proprietary Information by a regulatory authority, the one of the
parties from whom the Proprietary Information is requested will provide
notice to the other in a timely fashion to allow the other party the
opportunity to contest the release of its Proprietary Information to
such regulatory authority.
e) Except as required by law, neither party shall make any press release,
public statements, or disclosures regarding the terms, subject matter
or collaboration of the parties to this Agreement, without the prior
written consent of the other party, which consent shall not be
unreasonably withheld.
6. RELATIONSHIP OF THE PARTIES. TriZetto and Client are, and shall
remain independent contractors, each responsible only for its own acts and/or
omissions. Nothing in this Agreement shall be construed to constitute TriZetto
as anything other than an independent contractor. TriZetto is engaged to perform
services pursuant to this Agreement and in performing such services, TriZetto
shall not act as an "administrator" or "named fiduciary" of a "welfare plan", as
those terms are defined under ERISA, nor shall TriZetto be designated to carry
out fiduciary responsibilities, nor shall it have fiduciary responsibilities
allocated to it in connection with any "welfare plan" or group or member.
Notwithstanding anything in this Agreement to the contrary, the services
rendered by TriZetto on behalf of Client under this Agreement will not include
the power to exercise discretionary authority or responsibility in the
administration or management of "welfare plans," or funds or assets of such
plans or of any group that contracts with Client sufficient to cause TriZetto to
be a plan "fiduciary" under ERISA or applicable state law, and TriZetto shall
not exercise such discretionary authority or responsibility pursuant to this
Agreement.
7. INSURANCE.
a) CLIENT'S INSURANCE. CLIENT, on its own behalf and at its own expense,
shall obtain and maintain reasonable and customary insurance policies
for CLIENT. Such insurance policies shall include general liability and
property/casualty insurance on CLIENT's assets, professional liability
insurance, directors' and officers' liability insurance, and stop-loss
insurance, reinsurance and such other or additional insurance as CLIENT
and TriZetto shall mutually deem necessary or as required by law or
regulation.
b) TRIZETTO INSURANCE. TriZetto, on its own behalf and at its expense,
shall maintain general liability and professional liability insurance
with reasonable limits covering the acts and/or omissions of TriZetto
employees acting within the scope of their employment and directors'
and officers' liability insurance. TriZetto shall obtain and maintain
policies covering the TriZetto Equipment in policy amounts sufficient
to cover the replacement cost of such equipment.
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8. WARRANTY, DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
a) PERFORMANCE WARRANTY. Subject to the terms and conditions of EXHIBIT B,
TriZetto represents and warrants that the Services and Supported
Applications will be provided substantially in accordance with the
Service Levels set forth in EXHIBIT B. Subject to the terms and
conditions of EXHIBIT B, TriZetto's obligation and CLIENT's sole and
exclusive remedy for a breach of the warranty in this Section 8(a) or
any failure of TriZetto to meet the Service Levels, shall be that
CLIENT will receive the applicable Service Level Credits against
CLIENT's monthly fees as set forth on EXHIBIT B.
b) LAWS AND REGULATIONS. TriZetto represents and warrants that it will be
in compliance with all applicable laws and regulations existing as of
the date this Agreement is executed, including the Health Insurance
Portability and Accountability Act of 1996 and regulations promulgated
thereunder ("HIPAA"). In addition, TriZetto further represents and
warrants that, throughout the term of this Agreement, it will be in
compliance with all applicable laws and regulations that may be
promulgated from time to time that are not specific to CLIENT'S
industry. TriZetto further represents and warrants that throughout the
term of this Agreement it will use commercially reasonable efforts to
ensure that the Supported Applications will permit CLIENT to be in
compliance with all applicable laws and regulations that may be
promulgated from time to time that are specific to CLIENT's industry,
including those promulgated under HIPAA. To the extent that TriZetto
provides new versions or upgrades of the Supported Applications or
other Services to its customer base in order to permit such customers
to comply with laws and regulations, such new versions and upgrades
will be provided to CLIENT at no additional cost to CLIENT. To the
extent that compliance with new or revised laws specific to CLIENT's
industry cannot be obtained in a commercially reasonable manner by
modifications to the Supported Applications or other efforts by
TriZetto, but can be obtained through the purchase or license by
TriZetto of third party products or services, then CLIENT agrees to pay
for TriZetto's cost of providing such third party products and
services. To the extent compliance with a change in law specific to
CLIENT's industry can only be achieved by increasing the number of
TriZetto personnel performing Services, then the parties will agree on
an equitable adjustment to the charges payable by CLIENT to TriZetto
through a Work Order. The parties' rights and obligations with regard
to the Services are further informed and subject to the provisions of
EXHIBIT E (HIPAA Business Associate Addendum). Further, TriZetto
represents and warrants that it has all necessary licenses and permits
to perform the Services and provide the Supported Applications to
CLIENT.
c) UPGRADES. TriZetto represents and warrants that upon the release of an
upgrade to the Supported Applications, CLIENT will be provided with the
opportunity to test the upgrade at least 30 days prior to placing it
into service.
e) YEAR 2000.
i) TRIZETTO REPRESENTATION. TriZetto represents that the software and
hardware used by TriZetto in performing the Services have been
designed to allow date data century recognition, calculations,
which accommodate same century and multi-century formulae and date
value, and date data entry of all values that reflect the century.
TriZetto's obligation and CLIENT's sole and exclusive remedy from
a breach of this representation and warranty, except from force
majeure events including without limitation CLIENT's acts or
omissions, shall be that TriZetto shall, at no cost to CLIENT,
re-process CLIENT's data that was not processed in accordance with
the Service Levels.
ii) CLIENT REPRESENTATION. CLIENT represents that the software and
hardware, including the legacy systems used by CLIENT, have been
designed to allow date data century recognition, calculations
which accommodate same century and multi-century formulae and date
value, and date data entry of all values that reflect the century.
Except as explicitly set forth herein, TriZetto shall have no
liability for such software and hardware.
f) TRANSMISSION OF DATA. TriZetto is not responsible for loss of data from
an improper transmission by CLIENT or failure by CLIENT or any third
party to act on any communication transmission to or by CLIENT through
TriZetto. In the event of improper transmission or loss of data in
transmission, TriZetto will use TriZetto's commercially reasonable
efforts to recreate such transmission at CLIENT's expense.
g) DISCLAIMER OF WARRANTIES. EXCEPT FOR WARRANTIES PROVIDED IN THIS
SECTION 8, TRIZETTO MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, AS TO ANY MATTER WHATSOEVER,
INCLUDING BUT NOT LIMITED TO THE HARDWARE, SUPPORTED APPLICATIONS,
SOFTWARE PROVIDED BY TRIZETTO TO CLIENT, HARDWARE AND SOFTWARE USED BY
CLIENT BUT NOT PROVIDED BY TRIZETTO, DOCUMENTATION, DATA FILES, OUTPUT,
SERVICES, OR OTHER MATTERS PRODUCED OR PROVIDED HEREUNDER.
7
h) LIMITATIONS. Unless otherwise expressly provided herein, neither
TriZetto nor any of its service providers, licensors, employees or
agents warrant (i) that the Services provided hereunder will meet
CLIENT's requirements; (ii) that the operation of the Services will be
uninterrupted or error free; or (iii) that the Services will have the
capacity to meet demand beyond the volumes specified in EXHIBIT C, if
any. Except as set forth herein, TriZetto will not be responsible for
any damages that CLIENT may suffer arising out of use, or inability to
use, the Services. TriZetto will not be liable for unauthorized access
to or alteration, theft or destruction of CLIENT's data files,
programs, procedures or information through accident, fraudulent means
or devices, or any other method, unless such access, alteration, theft
or destruction is caused as a result of TriZetto's gross negligence or
intentional misconduct. It is hereby acknowledged that it is CLIENT's
responsibility to validate for correctness all output and reports and
to protect CLIENT's data and programs from loss by routinely performing
backup procedures.
i) EXCLUDED LIABILITIES. EXCEPT FOR CLAIMS FOR INDEMNIFICATION IN SECTIONS
4(b), and 9 AND EXCEPT FOR SECTION 5, IN NO EVENT WILL EITHER PARTY'S
LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES
PROVIDED HEREUNDER, REGARDLESS OF THE FORM OF ACTION, INCLUDE ANY
INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR CLAIMS FOR
LOSS OF BUSINESS OR PROFITS, UNDER CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE OF ACTION
AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
POTENTIAL LOSS OR DAMAGE.
j) AGGREGATE LIABILITY. EXCEPT FOR CLAIMS FOR INDEMNIFICATION IN SECTIONS
4(b), and 9 AND EXCEPT FOR SECTION 5, EACH PARTY'S AGGREGATE LIABILITY
TO THE OTHER PARTY PURSUANT TO THIS AGREEMENT UNDER CONTRACT, TORT
(INCLUDING NEGLIGENCE), OR OTHER LEGAL THEORY, REGARDLESS OF THE CAUSE
OF ACTION WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CLIENT IN
THE TWELVE MONTHS PRIOR TO WHEN THE DAMAGES FIRST AROSE. PRIOR TO THE
COMPLETION OF TWELVE MONTHS OF SERVICES UNDER THIS AGREEMENT, EACH
PARTY'S LIABILITY TO THE OTHER PARTY WILL NOT EXCEED AN AMOUNT EQUAL TO
THE ACTUAL MONTHLY SERVICES FEES PAID BY CLIENT DURING SUCH PERIOD.
9. INDEMNIFICATION.
a) CLIENT INDEMNIFICATION OBLIGATIONS. Subject to the conditions,
provisions and limitations of this Section 9, and other applicable
provisions of this Agreement, CLIENT hereby agrees to indemnify, defend
and hold harmless TriZetto from and against all actual and direct
damages, costs and expenses, including, without limitation, reasonable
attorneys' fees and disbursements, asserted against, directly resulting
to, imposed upon or directly incurred by TriZetto arising from or in
connection with any third party claims resulting from any of the
following:
i) Any gross negligence or willful misconduct or any violation of law
by CLIENT, its employees, Contractors, officers, CLIENT's
customers related to their use of the Supported Applications, or
agents (other than TriZetto acting as CLIENT's agent hereunder) in
connection with or relating to this Agreement.
ii) Any medical malpractice claim, which arises, or is alleged to have
arisen, from any medical services, or any services that are
considered by a claimant or other third party, rendered to any
healthcare provider or other recipient of the Services.
iii) An action taken by TriZetto in connection with this Agreement or
the Services pursuant to the expressed direction of Client.
iv) A breach or violation by Client, a Contractor or customer of
Client of the scope of its license grant under Section 1(b) or any
of its obligations under Sections 4 and 5.
b) TRIZETTO INDEMNIFICATION OBLIGATIONS. Subject to the conditions,
provisions and limitations of this Section 9, and other applicable
provisions of this Agreement, TriZetto hereby agrees to indemnify,
defend and hold harmless CLIENT from and against all actual and direct
damages, costs and expenses, including, without limitation, reasonable
attorneys' fees and disbursements, asserted against, directly resulting
to, imposed upon or directly incurred by CLIENT arising from or in
connection with any third party claims resulting from any of the
following:
(i) Any gross negligence or willful misconduct of TriZetto, its
employees or officers in connection with or relating to this
Agreement or the Services.
(ii) A breach or violation by TriZetto of any of its representations,
warranties or obligations set forth in
8
Sections 4, 5, 8(b) and 8(e).
b) CONDITIONS. Either party may participate in the defense or settlement
of any claim at its own expense.
10. DISPUTE RESOLUTION.
a) DISPUTE RESOLUTION. In connection with a dispute arising out of or
relating to this Agreement, the parties shall attempt in good faith to
resolve such dispute promptly by negotiation through an individual with
the authority necessary to settle the controversy. Negotiations shall
be commenced by written notice being delivered by a party to the other
party. The parties are obligated to meet within 10 business days after
delivery of such notice at a mutually acceptable time and place, and
thereafter as often as they reasonably deem necessary, to exchange
relevant information and to attempt to resolve the dispute. If the
matter has not been resolved within 45 days of the initiating notice,
or if the parties fail to meet within 10 business days, any party may
initiate arbitration of the dispute as provided below.
b) ARBITRATION. Except for ownership of the Supported Applications and any
TriZetto owned, operated or provided software and services and except
for collection actions for fees and for the right of either party to
apply to a court of competent jurisdiction for a temporary restraining
order, a preliminary injunction, or other equitable relief to preserve
the status quo or prevent irreparable harm, any controversy or claim
arising out of or relating to this Agreement or to its breach shall be
settled by arbitration by a single arbitrator in accordance with the
American Arbitration Association Rules, pursuant to an arbitration held
in Denver, Colorado if TriZetto initiates the arbitration or in
Bethesda, Maryland if CLIENT initiates the action. Judgment upon the
award rendered by the arbitrator may be entered into in any court of
competent jurisdiction. The arbitrator shall not have the authority to
award punitive damages.
c) ATTORNEYS FEES. The prevailing party in any dispute resolution will be
entitled to collect reasonable attorney's fees from the non-prevailing
party.
d) GOVERNING LAW. The parties hereby agree that this Agreement was entered
into in Denver, Colorado. This Agreement will be governed in accordance
with the laws of the State of Colorado without regard to its conflict
of law provisions. The parties agree that jurisdiction and venue for
any actions relating to this Agreement will be in the state or federal
courts in Denver, Colorado. Except as set forth above, each party
hereby irrevocably submits to the exclusive jurisdiction of the state
and federal courts sitting in Denver, Colorado, for the adjudication of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by mailing
a copy thereof to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law.
11. TERM AND TERMINATION.
a) TERM. Unless earlier terminated as provided herein, the term of this
Agreement will commence upon the date hereof and will continue until
June 30, 2007. This Agreement will automatically renew each year for
successive one year terms unless either one of the parties terminates
the Agreement by providing written notice of termination to the other
party at least 180 days before the termination date.
b) TERMINATION FOR CAUSE. This Agreement may be terminated if either party
materially breaches this Agreement. In the event of a claim of breach
under this Section 11(b), the party alleging such breach shall give
written notice of the alleged breach, which notice shall specify the
nature of any such claim in sufficient detail to allow the receiving
party to investigate the allegations. This Agreement may be terminated
by the party alleging such breach 30 days after the delivery of notice
unless: (i) the breach is cured within such 30 days; (ii) except for
failures to make payments when due, it is not possible to cure the
breach within 30 days but the defaulting party has commenced correction
within 30 days and proceeds diligently toward a cure; or (iii) except
for failures to make payments when due, the matter remains a subject of
disagreement between the parties and the dispute resolution process has
been initiated under Section 10 above. If after receiving written
notice of a material breach, the breaching party fails to cure such
breach within the 30 day cure period, then this Agreement shall
terminate. Unless otherwise specified by the non-breaching party, the
effective date of termination of this Agreement shall be extended by
fifteen (15) days to allow TriZetto to perform the deconversion
services set forth in Section 11d).
c) TERMINATION FOR CONVENIENCE. CLIENT may terminate this Agreement upon
180 days prior written notice by paying the liquidated damages fees set
forth in EXHIBIT C HERETO. The prices for Services under this Agreement
were determined by mutual agreement based upon certain assumed volumes
of processing activity and the length of the term of this Agreement.
CLIENT acknowledges that without the certainty of
9
revenue for the full term of this Agreement, TriZetto would have been
unwilling to provide processing Services at the prices set forth in
this Agreement. TriZetto agrees that it would be difficult to ascertain
actual damages for termination of this Agreement for convenience by
CLIENT before the end of the term. Upon CLIENT's early termination,
CLIENT agrees to a lump sum payment in cash equal to the amount
specified in EXHIBIT C hereto.
d) DECONVERSION SERVICES UPON TERMINATION. Upon the termination of this
Agreement for any reason and subject to agreement on reasonable terms,
TriZetto shall assist CLIENT in the deconversion and transfer of
information to CLIENT or a party or parties identified by CLIENT and
with such other actions as may be necessary or appropriate, in CLIENT's
reasonable judgment, to facilitate the transfer of the functions
performed by TriZetto to CLIENT or an entity selected by CLIENT. As
soon as practicable, but not later than the effective date of
termination, TriZetto will deliver to CLIENT, in a format and on the
media generally available to TriZetto at the time of the request, all
of CLIENT's data, tables and plan specifications. Upon delivery of such
data, TriZetto shall be reimbursed for its costs and labor on a time
and materials basis, except that TriZetto's fees for deconversion
services shall not be due and payable by CLIENT if CLIENT has
terminated the Agreement for cause. Time shall be priced at the
professional services rates set forth in EXHIBIT C.
e) RETURN OF MATERIALS UPON TERMINATION. Upon termination of this
Agreement, the CLIENT must immediately cease use of the Services and
shall use its best efforts to return all documentation and software, if
any, relating to the Services and TriZetto's confidential information
to TriZetto within 10 days of termination.
12. GENERAL.
a) AUTHORITY TO ENTER INTO AGREEMENT. Each party hereby represents and
warrants that (i) it has all requisite corporate power and authority to
enter, and perform pursuant to, this Agreement; (ii) the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and properly authorized
by all requisite corporate action on its part; and (iii) this Agreement
has been duly executed and delivered by such party.
b) RELATIONSHIP BETWEEN THE PARTIES. The performance by TriZetto of its
duties and obligations under this Agreement shall be that of an
independent contractor and nothing contained in this Agreement shall
create or imply an agency relationship between CLIENT and TriZetto, nor
shall this Agreement be deemed to constitute a joint venture or
partnership between CLIENT and TriZetto. Each party assumes sole and
full responsibility for its acts and the acts of its personnel. Neither
party shall have the authority to make commitments or enter into
contracts on behalf of, bind, or otherwise oblige the other party
except for the limited agency expressly provided for herein.
c) TRIZETTO NOT ENGAGED IN PRACTICE OF MEDICINE. TriZetto does not, nor
does it intend to, engage in the performance or delivery of medical or
hospital services or other types of healthcare. TriZetto's performance
under this Agreement should not, in any case, be deemed or understood
as a recommendation, endorsement, guarantee or warranty of the
professional services of CLIENT or any providers who render healthcare
services. Nothing herein shall be construed to imply that TriZetto, or
any of TriZetto's subsidiaries, officers, directors, employees or
agents are engaged in the practice of medicine or other professions
related thereto. All matters related to such field shall be the
exclusive province of CLIENT and its staff, agents and employees.
d) GOVERNMENT LICENSEE. If CLIENT is using the Supported Applications on
behalf of any unit or agency of the United States Government, the
following applies: The Supported Applications and any Proprietary
Information is provided with RESTRICTED RIGHTS. Use, duplication or
disclosure by the Government is subject to restrictions as set forth in
Subparagraphs (a) through (d) of the Commercial Computer-Restricted
Rights clause at FAR 52.227-19 when applicable, or in Subparagraph
252.227-7013 (c)(1)(ii) of the Rights in Technical Data and Computer
Software at DFARS, and in similar clauses in the NASA FAR Supplement.
Contractor/manufacturer is The TriZetto Group, Inc., ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
e) ADDITIONAL COSTS. If certain items and outside services are purchased
by TriZetto in order to provide Services to CLIENT these items and
services, detailed below, will be charged to and payable by CLIENT at
the reasonable cost incurred by TriZetto:
i) FORMS AND SUPPLIES. All forms and supplies, such as special forms
and standard printer paper utilized for printing reports and
action letters and envelopes.
ii) POSTAGE AND SHIPPING EXPENSES. All postage and shipping expenses
required for delivering, as requested by CLIENT, forms, letters,
reports, magnetic tapes, identification cards, and similar items,
to CLIENT or to CLIENT's designees, members, employers or others
that are not a part of routine
10
mailings. "Routine Mailings" as defined herein include claim
payment checks, member EOB's, provider RA's and claims-related
correspondence routinely generated from the Facets system. CLIENT
may be allowed to include inserts up to seven (7) pages in such
mailings at no cost to CLIENT upon approval by TriZetto.
iii) TELECOMMUNICATION EXPENSES. All communication line expenses
related to providing Services. These expenses include those
necessary to transmit data between CLIENT and TriZetto locations,
as well as to other locations as requested by CLIENT.
iv) TRAVEL. Normal reasonable out-of-pocket travel expenses required
to provide any of TriZetto's services at CLIENT's location. These
expenses include airfare, lodging, meals, and ground
transportation. These expenses shall be paid pursuant to CLIENT'S
travel policy in effect as of the date of this Agreement, a copy
of which previously has been provided to TriZetto.
f) NOTICES. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained
in a written instrument and shall be deemed given if delivered
personally, via facsimile, sent by nationally-recognized overnight
courier or mailed by registered or certified mail (return receipt
requested), postage prepaid, addressed to the party at the address set
forth on the signature page to this Agreement, or at such other address
for such party as shall be specified by like notice. All such notices
and other communications shall be deemed to have been received (a) in
the case of personal delivery, on the date of such delivery, (b) in the
case of a facsimile, when the party receiving such copy shall have
confirmed receipt of the communication, (c) in the case of delivery by
nationally-recognized overnight courier, on the business day following
dispatch, and (d) in the case of mailing, on the third business day
following such mailing.
g) FORCE MAJEURE. TRIZETTO'S PERFORMANCE OF ITS OBLIGATIONS WILL BE
EXCUSED OR THE TIMEFRAME FOR PERFORMANCE WILL BE extended as is
reasonably necessary under the circumstances, in the event that
TriZetto is prevented from performing its obligations in whole or in
part by riots, fire, flood, earthquake, explosion, epidemics, war,
strike or labor disputes, embargo, civil or military authority, act of
God or other causes beyond its reasonable control. In the event that
TriZetto is prevented or delayed in the delivery or installation of the
Services for reasons beyond its control, such delivery or installation
shall take place as soon thereafter as is reasonably possible.
h) ASSIGNMENT. Neither this Agreement nor any rights granted hereunder may
be sold, leased, assigned or otherwise transferred, in whole or in part
by either party by operation of law or otherwise, and any such
attempted assignment shall be void and of no effect without the advance
written consent of the other party, such consent not to be unreasonably
withheld or delayed; PROVIDED, HOWEVER, that such consent shall not be
required if either party assigns this Agreement to a wholly owned
subsidiary or an affiliate or in connection with a merger, acquisition,
or sale of all or substantially all of its assets, unless the surviving
entity is a competitor of TriZetto, as determined by TriZetto in its
reasonable judgment.
i) PERFORMANCE. TriZetto is authorized to provide the Supported
Applications and Services through its subsidiaries, employees or by
subcontracting with other responsible parties; provided, however, that
no more than 20% of the individuals providing Services may be
subcontractors engaged by TriZetto.
j) OTHER AGREEMENTS. Nothing in this Agreement shall prevent TriZetto or
TriZetto's affiliated companies from entering into similar or different
agreements with others in the health care industry or other industries,
including CLIENT's competitors.
k) NON-SOLICITATION. Except as contemplated in this Agreement, each of the
parties agrees to refrain from directly or indirectly hiring or
contracting with any current or future employee of the other party for
a period of one year after the candidate's separation of employment for
any reason or expiration of this Agreement, whichever occurs first,
unless permission is granted in writing by the employer, which consent
may be granted or withheld in such party's sole discretion. The
foregoing provision will not prevent either party from employing any
such person who contacts such party on his or her own initiative or in
response to general solicitation without any direct solicitation, by or
other encouragement from, such party or its representatives. In the
event that either party hires a person in violation of this Section
12(k), such party shall pay the other party the annual salary being
paid by the offending party. The parties agree that this amount
represents reasonable and foreseeable estimates of damages in
conformity with California Civil Code Section 1671.
l) SEVERABILITY. If one or more provisions or parts of this Agreement are
declared invalid, illegal or unenforceable by a court with jurisdiction
over the parties to this Agreement, the remaining provisions will
nevertheless remain in full force and effect in such jurisdiction,
unless such severance would frustrate the contractual intent of the
parties.
11
m) ENTIRE AGREEMENT; AMENDMENTS, EXHIBITS. This Agreement (including the
schedules and exhibits attached hereto) embodies the entire
understanding of the parties in relation to its subject matter, and
supersedes all proposals, letters of intent or prior agreements, oral
or written, and all other communications and representations between
the parties relating to the subject matter of this Agreement and no
other agreement or understanding, verbal or otherwise, relative to this
subject matter exists between the parties at the time of execution of
this Agreement. This Agreement may be amended only by a written
agreement signed by both parties. Each of the exhibits attached to this
Agreement is made a part of this Agreement and the terms of these
exhibits will be fully binding on the parties.
n) SURVIVAL. Notwithstanding the expiration or termination of this
Agreement or any renewal period hereunder, the parties agree that the
terms of Sections 2, 5, 8, 9, 10, 11 and 12 shall survive.
o) WAIVER. No waiver of any breach of any provisions of this Agreement
shall be effective unless made in writing and signed by each of the
parties to this Agreement. Each party agrees that no failure or delay
by the other party in exercising any right, power or privilege
hereunder will operate as a waiver thereof, nor will any single or
partial exercise thereof preclude any other or further exercise thereof
or the exercise of any right, power or privilege hereunder.
p) HEADINGS. The headings used herein are for identification and reference
purposes only and shall not be used in the construction and
interpretation of this Agreement.
q) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding on the parties hereto and their respective successors
and assigns (if such assignment was properly made pursuant to this
Agreement).
r) REMEDIES. Except for remedies that are described herein as sole and
exclusive remedies, no remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder, now or hereafter
existing at law or in equity or by statute or otherwise. The election
of any one or more remedies shall not constitute a waiver of the right
to pursue other available remedies.
s) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the
same agreement. This Agreement shall become effective when counterparts
have been signed by each of the parties and delivered by facsimile or
other means to the other party.
12
IN WITNESS WHEREOF, the parties have caused this Application and Business
Services Agreement to be executed and delivered by their duly authorized
representatives, as of the date first above written.
THE TRIZETTO GROUP, INC. ("TriZetto") APS HEALTHCARE BETHESDA, INC. ("CLIENT")
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------- --------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and CFO Title: VP and General Counsel
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
13
EXHIBIT A.1
ASP SERVICES
1. Supported Applications
Following is the list of software that is resident on TriZetto's equipment
("Supported Applications") that TriZetto will make available to Client as
part of its Application Service Provider ("ASP") Services:
(a) FACETS CORE CLAIMS SYSTEMS
(i) Utilization Management
(A) (Inpatient/Outpatient Authorization)
(B) (Referral Process)
(C) (Case Management-PACE)
(ii) Benefit Management
(iii) Capitation/Risk Fund Management
(iv) Membership Enrollment
(v) Premium Billing & Commission
(vi) Claims Processing
(vii) Client Service
(viii) Provider Network Management
(ix) EDI-Standard Transactions
(b) INTERFACE SUPPORT
(i) TriZettto will provide its standard interfaces that are
included with the Supported Applications.
(ii) Specific interfaces to be developed will be detailed in
EXHIBIT F (the Statement of Work).
(c) MACCESS (I-MAX-Image Workflow)
2. Data Processing Services
(a) GENERAL. TriZetto will provide data processing services,
operations, production control and scheduling, physical database
support, storage management, media management, output operations and
technical support for the Supported Applications as described above.
(b) OPERATIONS. TriZetto will:
(i) Operate the Supported Applications so as to substantially
comply with the Service Levels described in EXHIBIT B.1
("Service Levels").
(ii) Make the Supported Applications available for access during the
applicable hours as described in this Exhibit and in EXHIBIT
B.1.
A.1-1
(iii) Make the on-line and batch environments available to process
transactions as described in the applicable user Documentation.
(iv) Make available, monitor and process Client's data with the
Supported Applications in on-line and batch processes as
described in this EXHIBIT B.1.
(v) Manage the delivery of external data transmissions required to
complete the production on-line and batch cycles.
(vi) Develop and document automated console operations procedures.
(vii) Manage performance of on-line interactive traffic and failures
of the Supported Application to perform substantially as
described in the user Documentation ("problem(s)").
(viii) Monitor and process End User job submissions within deadlines
agreed to by the parties.
(ix) Support the introduction of new Supported Applications,
Equipment and third party software as jointly agreed to by the
parties.
(x) Regularly maintain and update the operational Documentation for
operations procedures and services.
(xi) Utilize TriZetto's standard systems management control
methodologies in the implementation and operation of the
Services.
(c) PRODUCTION CONTROL AND SCHEDULING. TriZetto will:
(i) Develop batch processing schedules and run and monitor such
processing pursuant to such schedules. TriZetto and Client will
work cooperatively to establish processing schedules and
resolve scheduling conflicts.
(ii) Maintain production schedules to complete processing
substantially within the time periods in the Service Levels.
(iii) Cooperate with Client in responding to special processing
requests and new processing requirements as are reasonably
requested by Client.
(iv) Identify job dependencies and establish priorities for batch
job and report distribution schedules in accordance with
mutually agreed upon schedule parameters so that on-line
Supported Applications dependent on batch processing will be
available as scheduled.
(v) Take down and restart on-line services as required or otherwise
mutually agreed to by the parties.
(vi) Develop and distribute processing schedules prior to
implementation and provide schedule status updates.
(vii) Create and define batch job requirements for Client's review
and approval.
(viii) Modify and verify batch production schedules based on: ad hoc
requests reasonably requested by Client; holiday cycles; and
daily, weekly, monthly, quarterly and year-end processing
requirements agreed to by the parties.
(ix) Work cooperatively with Client authorized personnel to adjust
scheduling for priority job execution. Client shall notify
TriZetto which Client personnel are authorized to adjust job
priorities. TriZetto and Client shall work cooperatively to
modify schedules to accommodate special requests that are
reasonably requested by Client.
A.1-2
(x) Notify Client if special requests for priority job execution
will significantly affect the completion of other tasks.
(xi) Assimilate new Supported Applications and batch jobs into the
production environment, as jointly agreed to by the parties.
(xii) Recommend job scheduling changes to improve Supported
Application job stream effectiveness and to take advantage of
new technologies.
(xiii) Monitor data transfers and condition codes to verify proper
Supported Applications executions.
(xiv) Consistent with processing window requirements, resolve
abnormal terminations and operational exceptions ("ABENDs"),
execute reruns as required and perform job restarts.
(xv) Provide ongoing analysis of ABEND and problem trends and
initiate corrective actions with the appropriate Client and
third party support or development personnel.
(xvi) Implement an escalation process for batch job streams and
on-line processing.
(xvii) Confirm the successful receipt of incoming files and the
successful transmission of outgoing files.
(d) PHYSICAL DATABASE SUPPORT. TriZetto will:
(i) Perform database tuning and reorganization, and modify
operating system parameters as required to enhance the
performance of the database management systems.
(ii) Maintain, update, develop and implement database
backup/journaling procedures to recover from a database outage
or corrupt database, including regular and periodic back-ups of
database data.
(iii) Develop, update and adhere to, as appropriate, unload and
reload procedures for backing up databases.
(iv) As jointly agreed to by the parties, correct problems caused by
lack of capacity (e.g., dataset or tablespace capacity events,
or full log files).
(v) Perform database shutdowns and restarts as required.
(vi) Perform database performance analysis to confirm physical
database requirements.
(e) MEDIA STORAGE MANAGEMENT
(i) ADMINISTRATION
(A) Provide Client with reasonably requested documentation of data
constructs and placements and media configuration diagrams,
name and utilization statistics.
(B) Maintain adequate space allocation for processing Client's
Data.
(C) Monitor data performance (e.g., media space utilization and
requirements), analyze Client's storage management
performance, trends and statistics, and make recommendations
as appropriate for more efficient Client data management
procedures.
A.1-3
(ii) BACKUP AND RESTORE
(A) Maintain, update and implement Supported Applications and data
backup and replacement/restore strategies, processes and
procedures so as to recover from an outage or corruption in
accordance with the Disaster Recovery Plan.
(B) Perform the following procedures and processes: (i)
incremental daily backup and full weekly backup of all
Supported Applications and data on production systems; (ii)
backups on non-production systems (e.g., development systems);
(iii) daily off-site vaulting of data via electronic copying
and/or other media for recovery purposes; (iv) regular tests
of backup and restore processes as appropriate; (v) cataloging
of on-site and off-site content; (vi) retrieving backup media;
and (vii) restoring data from the backups as required to
complete scheduled production processing.
(C) Perform backups prior to and after significant TriZetto
Supported Applications upgrades or changes and after
significant Supported Application processing periods as
mutually agreed to by the parties.
(D) Implement automation for such backup functions where
reasonably possible to minimize problems and expedite
processes.
(E) Develop procedures for the restoration of lost or damaged
files from file backups for files under TriZetto's control and
implement such procedures upon loss of or damage to a file.
(F) Retrieve, re-install and return off-site and on-site stored
Client Data within the time frames and in accordance with
procedures jointly agreed to by TriZetto and Client.
(G) Pursue improvements in backup capabilities, procedures and
tools, implementing, managing and maintaining redundancy
measures where reasonably requested by Client and agreed to by
TriZetto.
(iii) MAINTENANCE
(A) TriZetto will monitor storage systems for reliability and
problems, and will identify and fix media errors, perform
rebuilds on crashed data, and initialize new data.
(f) TECHNICAL SUPPORT. TriZetto will:
(i) Provide technical advice related to the Supported Applications
and advise Client's applications development and maintenance
staff on work related to Client Software vis a vis its
interoperability with the Supported Applications.
(ii) Provide assistance related to product research related to the
Supported Applications.
(iii) Provide Client with advice on efficiency improvements related
to Client's use of the Supported Applications.
(iv) In addition to the interfaces listed in EXHIBIT F (the
Statement of Work), (the "Interfaces"), provide, implement and
maintain other interfaces to the Supported Applications that
are jointly agreed to be developed in accordance with the
Change Control Process.
(v) Perform capacity planning related to the Supported Applications
for its servers, storage devices and removable media,
including: monitoring system use and capacity; forecasting
resource requirements; implementing and utilizing tools,
techniques and facilities for capturing and reporting relevant
system utilization data; analyzing resource trends; analyzing
workload capacity; and coordinating installation of additional
resources as are agreed to by the parties.
A.1-4
(vi) Perform configuration planning and management functions related
to the Supported Applications, including: developing a strategy
and configuration for servers, storage devices, and removable
media; and developing a plan for availability for performance.
(vii) Regularly monitor and use its standard operating procedures to
improve performance and processing capabilities and
efficiencies of the Supported Applications through: system
performance tuning; load balancing; other run time
improvements; system performance reviews and recommendations;
and installation of automated tools/products to improve the
delivery of the Services.
(viii) Subject to TriZetto's prior written consent, provide support
and set-up services for electronic connections to the Supported
Applications by Client-designated external entities, subject to
such entities other than Client agreeing to confidentiality
obligations and use restrictions comparable to those agreed to
by Client. Such connections will be in accordance with the
TriZetto security architecture standards and will be provided
as part of the standard Fees if associated with the Interfaces
described in Section 1.b of this Exhibit and in accordance with
the Change Control Process for additional Interfaces.
(ix) Provide system capabilities to accept and exchange electronic
transactions (e.g., electronic data interchange, Internet-based
transactions) with third parties identified by Client and
agreed to by TriZetto. Such capabilities will be in accordance
with the TriZetto security architecture standards and will be
provided as part of the standard Fees if associated with the
Interfaces described in Section 1.b of this Exhibit and in
accordance with the Change Control Process for additional
Interfaces.
(x) Provide TriZetto's standard systems programming and systems
utility support (i.e., job control, interfacing scripts, shell
commands, host and file equivalency, user account and home
directory, and file transfers).
(xi) Monitor system operations.
(g) HOURS OF OPERATION
(i) All data processing services in Section 4 of this Exhibit will
be provided from 7 a.m. to 7 p.m., local Client time, Monday
through Friday, and after hours and on weekends for urgent
priority Problem Tickets.
3. Equipment and Software Services
(a) EQUIPMENT PROVISIONING, SUPPORT AND MAINTENANCE. TriZetto will:
(i) Perform regularly scheduled and emergency system maintenance.
(ii) Schedule and perform routine and other systems maintenance
during maintenance periods so as to minimize interference with
Client's business and operation.
(iii) Use its best efforts to give Client advance notice of routine
maintenance to be performed during scheduled maintenance
periods.
(iv) If there is a need for emergency systems maintenance, provide
Client with as much notice as reasonably possible and perform
such maintenance so as to minimize the disruption to Client's
operations.
(v) Make the Supported Applications and the Client Data unavailable
during maintenance periods only to the extent necessary for
maintenance purposes.
A.1-5
(b) SOFTWARE PROVISIONING, SUPPORT AND MAINTENANCE
(i) CORRECTIVE MAINTENANCE
(A) TriZetto shall use its best efforts to correct problems in
Supported Applications in accordance with the Service Levels.
(B) TriZetto will coordinate with third parties and Client to the
extent necessary to address Supported Application or Client
Data related problems.
(ii) PREVENTATIVE MAINTENANCE. TriZetto shall perform preventive and
remedial maintenance for Supported Applications such that the
Supported Applications substantially conform to applicable
Service Levels to the extent their operation is within the
reasonable control of TriZetto.
(iii) OTHER MAINTENANCE SERVICES. In addition to the requirements
above, TriZetto shall:
(A) Provide technical advice to Client as is reasonably requested
to assist Client in the development of plans and promotion of
successful project implementations.
(B) Subject to appropriate planning, testing and verification,
provide and install new releases of, enhancements and upgrades
to, the Supported Applications, as determined by TriZetto to
be required so as to remain within supported levels, but in
any event within one generation of the then-current
maintenance release.
(C) Subject to appropriate planning, testing and verification,
provide and install new releases of, enhancements and upgrades
to, the information security-related Supported Applications as
determined by TriZetto to be required.
(D) Subject to TriZetto's internal planning, testing and
verification, install updates or upgrades to Supported
Applications which are provided to or used generally for
TriZetto Clients
(E) Implement preventive and remedial maintenance and updates for
Supported Applications, subject to appropriate acceptance
testing.
(F) Upgrade or replace Supported Applications as required to
maintain compatibility with applicable third party system
software.
(G) In connection with implementing any Supported Applications new
versions (i.e., Version 1.0, Version 2.0, etc.), TriZetto will
for additional fees pursuant to the Change Control Process:
conduct data conversion; test the Supported Applications being
upgraded as requested by Client; support Client's testing and
quality assurance of Interfaces and Client Software that may
be affected by the upgrade; plan to drop back to the old
version if the implementation is not successful; and archive
the old version for future reference. Evaluate and recommend
new Supported Applications or other products for use by
Client.
(H) Provide information to Client about the functionality,
architecture, data, and other information related to the
Supported Applications, as reasonably requested by Client.
Such information shall be deemed to be TriZetto's confidential
information.
(I) Recommend to Client methods to improve Supported Applications
performance. Such analysis and recommendations will include:
(1) Recommend solutions regarding Client Software tuning,
storage management and telecommunications.
(2) Monitor trends related to Supported Applications
performance.
A.1-6
(3) Examine new features of operating systems and other third
party system software to determine how they could be
utilized to improve and optimize Client's use of the
Services.
(J) Coordinate and implement roll-outs of Supported Applications.
(K) Perform integration and quality assurance testing of these
items after roll-out and provide proper back-out procedures.
(L) If roll-outs occur after Client's standard business hours,
provide additional support the next business day.
(M) Notify Client reasonably in advance prior to promoting
Supported Applications from the test to the production
environment.
(N) Maintain, store, catalogue and archive Supported Applications
source code as may be necessary to maintain source code to
object code integrity, taking into consideration the media on
which such source code exists.
(iv) ENHANCEMENTS. Client may request that TriZetto produce new
enhancements, interfaces, reports or functions for the
Supported Applications. TriZetto will respond to such requests
in accordance with the Change Control Process.
4. Problem Management and Help Desk Services
(a) PROBLEM MANAGEMENT. TriZetto will:
(i) Provide and maintain a single automated problem tracking and
management tool (the "Problem Management System").
(ii) Log reported problems by initiating a record generated by
TriZetto's Problem Management System and used by TriZetto to
log and centrally track the status and resolution of problems
reported to, and questions and requests asked of, TriZetto (a
"Problem Ticket") upon receipt from Client, an automated alarm
or TriZetto's staff.
(iii) Initiate a Problem Ticket when the problem is reported to the
Help Desk by telephone, direct notification or other means that
are made available by TriZetto to Client.
(iv) Monitor, control and manage each problem arising from or
relating to the Services until it is corrected or resolved, or
a workaround is implemented by TriZetto.
(v) Use commercially reasonable efforts to correct or resolve all
problems with the Supported Applications and within the scope
of TriZetto's responsibility in accordance with the Service
Levels.
(vi) Monitor and measure problems and compile TriZetto's standard
statistics related to such activities.
(vii) Develop escalation procedures for notification of problems
within Client and within TriZetto of problems with TriZetto
Equipment, Supported Applications or the Client Data and
escalate unresolved problems according to TriZetto procedures.
(viii) For each problem, provide prompt notification to Client of
system outages affecting the Supported Applications or the
Client Data and otherwise provide Client with regular progress
updates.
(ix) Provide Client's information technology personnel on-line
read-only access to the Problem Management System.
A.1-7
(x) Engage and manage third party suppliers and vendors as
necessary to localize and address problems that arise from or
relate to the Services.
(b) HELP DESK
(i) TriZetto will operate a primary help desk with TriZetto
personnel (the "Help Desk") to provide problem determination,
resolution and/or tracking, as applicable, with respect to all
problems arising from, or relating to, the Services from 7:00
a.m. to 7 p.m. in Client's local time zone, Monday - Friday,
and for urgent priority calls after hours and weekends ("Help
Desk Hours"). Calls will be logged and tracked (with escalation
as necessary). The severity level, escalation process and
client update frequency related to each problem will be
determined in accordance with the standards in EXHIBIT B.1.
(ii) TriZetto will:
(A) Provide the Help Desk which will serve as the initial end user
and client point-of-contact for originating and coordinating
Problem Tickets and issues relating to system access, such as
password and ID administration, maintenance and support.
(B) Provide first level problem diagnosis and resolution (to the
extent the problem is resolvable on the initial call) at the
time of the initial call.
(C) Provide second level support, i.e., Supported Applications
support and provision of real-time data regarding the
performance of the Services against the Service Levels.
(D) Contact third party vendors of Supported Applications as
necessary to seek solutions to problems that the second level
support team is unable to resolve.
(E) Open Problem Tickets, route Problem Tickets to the appropriate
entity for resolution, track the progress of problem
resolution efforts, escalate problems to the appropriate
levels for resolution and close Problem Tickets as described
above.
(F) Refer users to third party vendors of products other than the
Supported Applications if problems are caused by such third
party vendors' products or services.
(G) Analyze call trends and recommend actions to reduce calls.
(H) With respect to Supported Applications, provide problem
determination and respond to Client requests and inquiries.
5. Disaster Recovery Services
(a) SUPPORTED APPLICATIONS AND CLIENT DATA. TriZetto will:
(i) Provide backup, disaster recovery and storage capabilities so
as to make the ASP Services available within 72 hours after an
event that would otherwise affect the delivery of such
Services.
(ii) Develop and implement a recovery solution for the Supported
Applications and the Client Data as described and designated in
the Disaster Recovery Plan (as defined below).
(iii) Utilize TriZetto's disaster recovery contractor for purposes of
fulfilling its obligations under the Agreement.
(iv) Maintain backup copies of Client's Data and all Supported
Applications utilized to process Client Data.
A.1-8
(v) Utilize a secure location located in a different geographical
region from the TriZetto Facility with appropriate protection
against environmental hazards (e.g., fire, acts of God) with
respect to Client Data generated from or accessed by the
Supported Applications.
(vi) Conduct periodic tests for the retrieval of stored tapes and to
verify the integrity of the data stored on the tapes.
(vii) Perform functions in accordance with standards and procedures
agreed upon by Client and TriZetto.
(viii) Perform backups as necessary to maximize availability of the
ASP Services during or after problems, such as
disaster/business recovery functions for all Supported
Applications and Client Data.
(ix) Provide an uninterruptible power supply for all Equipment which
is used for Client Data and which is hosted by TriZetto for the
Supported Applications.
(x) Maintain full "hot-site" recovery for Client's production
workload in accordance with the Disaster Recovery Plan. A
hot-site is a computer center which provides computer and
peripheral equipment to replicate the data processing
operations at TriZetto's computer site for the Supported
Applications, including but not limited to backup power
supplies, printers, consoles, tape drives, redundant
environmental conditioning, communications lines, fire
protection and warning devices, and physical security.
(xi) Use its best efforts to recover the ASP Services in accordance
with the time periods set forth in the Disaster Recovery Plan.
(xii) Provide technology change and upgrade capability to keep the
hot-site contingency facilities current with the technology
levels of the production systems.
(xiii) Develop and maintain a plan for the transition back from the
disaster recovery site to the TriZetto Facility for the
affected ASP Services and restoration of such Services at the
affected site upon cessation of the disaster.
(xiv) Upon cessation of the disaster, promptly implement the Disaster
Recovery Plan to restore the affected ASP Services at the
affected sites.
(b) DISASTER RECOVERY PLAN
(i) TriZetto will develop a Disaster Recovery Plan. Thereafter,
TriZetto will maintain, update and enhance the Disaster
Recovery Plan as required to use its best efforts to resurrect
or maintain continuous data process operations for the Support
Applications in the event of a disaster.
(ii) The Disaster Recovery Plan will describe (i) the manner in
which TriZetto will perform backup and disaster recovery
functions, and (ii) TriZetto's priorities for backup and
disaster recovery and methods for Client commenting on and/or
requesting changes to those priorities. Each significant update
and modification to the Disaster Recovery Plan will be provided
to Client.
(iii) Pursuant to the Disaster Recovery Plan, TriZetto will:
(A) Develop technology strategies to meet Client's continuity
requirements and regularly (at least annually) review such
continuity requirements to update the Disaster Recovery Plan.
(B) Proactively maintain and update the Disaster Recovery Plan
with respect to applicable TriZetto technology platforms,
systems, networks and Supported Applications.
A.1-9
(C) Implement, maintain, evolve, upgrade and test the Disaster
Recovery Plan in accordance with the next Section.
(c) TESTING, DECLARATION, REGULATORY COMPLIANCE, AND OTHER DUTIES.
TriZetto will:
(i) Establish test objectives designed to verify that the Supported
Applications and the Client Data will be available within
timeframes in the Disaster Recovery Plan.
(ii) Schedule and annually conduct at least one Disaster Recovery
Plan test that Client and its representatives will be given the
opportunity to observe.
(iii) Document test results and provide analysis and recommendations
for improvements in recovery capabilities.
(iv) With respect to Client Facilities, identify disasters that
affect the Supported Applications to Client as quickly as
reasonably possible upon identification of such disasters.
Following such identification by TriZetto, Client will be
responsible for declaration of disasters with respect to Client
Facilities.
(v) For all TriZetto Facilities, declare disasters in accordance
with then-current Disaster Recovery Plan and notify Client of
situations that may escalate to disasters as soon as reasonably
possible.
(vi) Determine, in accordance with the Disaster Recovery Plan, what
disaster recovery resources to deploy in the event of a
disaster, and conduct, supervise, and administer the operation
and implementation of such resources.
(vii) In the event of a disaster, operate the TriZetto Equipment and
provide the Supported Applications in accordance with the
Disaster Recovery Plan.
(viii) To the extent reasonably practical, provide a single point of
contact for disaster recovery related communications and
activities.
(ix) Develop and maintain, subject to Client's cooperation, review
and approval, a list of Client personnel for TriZetto to
contact in the event of a disaster and the contact personnel at
TriZetto for Client to contact in the event of a disaster.
(x) Adjust disaster recovery capability as necessary during the
term, to accommodate changes in Client's business volumes,
Supported Application enhancements, business needs, or new
functions requested.
(xi) In the event of a disaster, use TriZetto's resources to provide
additional technical resources to maintain provision of
Services for unaffected areas and re-align technical resources
to recover from the disaster.
(xii) Identify opportunities for improvement and efficiencies in
disaster recovery functions.
(xiii) Generate a report following each and any test of the Disaster
Recovery Plan and each and any actual disaster.
(xiv) In the report, measure performance against the Disaster
Recovery Plan and identify problem areas and plans for
resolution.
(xv) To the extent the disaster impacted the Supported Applications
or the Client Data, provide such report to Client.
A.1-10
(xvi) Following any crisis that impacted the Supported Applications
or the Client Data, conduct a post-crisis meeting with Client
to understand the cause of the crisis and develop plans to
eliminate or mitigate future occurrences.
(xvii) Develop the Disaster Recovery Plan and any other disaster
recovery related documentation to meet HIPAA, SEC and HCFA
standards and regulations for disaster recovery documentation
that exist on the Effective Date. As such standards and
regulations may change from time to time, the parties will use
the Change Control Process to address how to revise the
Disaster Recovery Plan.
6. Security Services
(a) INFORMATION SECURITY. TriZetto will:
(i) Manage and administer access to the TriZetto systems, networks,
Supported Applications, systems files and Client Data, although
Client will retain authority for approval of all Client Data
access requests.
(ii) Install and update TriZetto system security Software, research
system security problems, perform security audits to assure
adequate TriZetto security procedures are in place, provide
incident investigation support, and provide technical advice
with problem resolution relating to information security.
(iii) Review all applicable TriZetto information security procedures
with Client.
(iv) Develop, implement, and maintain a set of automated and manual
processes so that Supported Applications and data are available
and kept confidential, and the Client Data integrity is
maintained.
(v) Administer user IDs for the Supported Applications and
conducting such administration in accordance with TriZetto's
data security policies. More specifically, TriZetto will:
(A) When provided with appropriately authorized forms requesting
new or modified log-on IDs, respond to access requests
substantially in accordance with the Service Levels. TriZetto
will suspend and delete inactive log-on IDs as necessary. As
directed by Client, TriZetto will immediately suspend or
terminate access to the system with respect to a single End
User or group of End Users.
(B) When provided with appropriately authorized forms requesting
the addition, change or removal of access to Client Data,
respond to such requests substantially in accordance with the
Service Levels.
(C) When provided with appropriately authorized forms requesting
access to remote dial-in facility, respond to such requests
substantially in accordance with the Service Levels.
(D) Reset passwords.
(E) Configure the Supported Applications to require a new password
every 90 days and upon the departure of an individual (when
promptly notified by the Client) with access to such passwords
and as otherwise required to prevent unauthorized access.
(vi) Capture data regarding routine access related to the Services
and exceptions for audit trail purposes, and make such data
available to Client upon request.
(vii) Capture data regarding inactive accounts related to the
Services and make such data available to Client upon request.
A.1-11
(viii) Establish and administer security violation and unauthorized
access attempt report mechanisms and monitoring users of the
processing environment for unauthorized access.
(ix) Where there is a security violation or an unauthorized access
attempt discovered by TriZetto or made known to TriZetto, to
the extent such violation or attempt was related to the
Services: (i) provide a report to Client describing such
violation or attempt; (ii) initiate corrective actions, with
the assistance of Client where appropriate, to minimize and
prevent reoccurrence to the extent such violation or attempt is
within an area under the control of TriZetto; (iii) recommend
corrective actions to Client to minimize and prevent
reoccurrence to the extent such violation or attempt is not
within an area under the control of TriZetto; and (iv) prepare
and retain documentation of investigations of such violation or
attempt and provide a copy of such documentation to Client.
(x) Provide security mechanisms and tools which, to the extent
commercially reasonable, detect and prevent unauthorized access
by employees of Client, employees of TriZetto or Third parties
to, and protect the integrity of, the TriZetto systems,
networks, Supported Applications, systems files and Client Data
under TriZetto's management. TriZetto will provide security
access control tools for data, databases, Supported
Applications, operating systems, and networks within TriZetto's
management in compliance with industry standard security
policies, standards and procedures that have been provided to
and agreed to by TriZetto, and maintain such security and
access control devices working in accordance with their
specifications.
(xi) Administer security databases.
(xii) Restore information lost or damaged as the result of a security
violation to the extent commercially feasible.
(xiii) Perform security audits to verify that applicable security
procedures are in place.
(xiv) Perform periodic audit self assessments and provide written
responses to both internal and external security audits.
(xv) Identify security risks and recommend and implement procedures
to minimize such risks within the TriZetto's data center.
(xvi) Develop and maintain formal, commercially reasonable risk
management procedures for the Supported Applications.
(xvii) Establish and maintain commercially reasonable safeguards
against the unauthorized access, destruction, loss or
alteration of Client Data under the management of TriZetto that
are no less rigorous than the practices TriZetto uses to
protect similar data of its own or its other clients.
(xviii) Develop, maintain, and support processes and procedures to
secure the Supported Applications and protect the
confidentiality of Client Data, and support processes and
procedures to secure the TriZetto network against unauthorized
access.
(xix) Not give other parties access to the Client Data without
Client's prior written consent, except for TriZetto's
subcontractors which are subject to confidentiality
obligations.
(xx) Install, update, operate and maintain commercially available
virus protection software that will automatically scan for
viruses and be updated after a new version of the software is
made available to TriZetto.
(xxi) Test such virus protection software prior to installation to
verify, to the extent commercially reasonable, that such
software can detect viruses in TriZetto Equipment and Supported
Applications.
A.1-12
(xxii) Upon detection of a virus, assess the scope of damage and the
risk, if any, that such virus will spread to the Client
equipment and software, take commercially reasonable measures
to arrest the spread and progressive damage from the virus,
report such virus to Client, and salvage and/or restore as much
of the impacted Client Data and Supported Applications as
reasonably possible.
(xxiii) Maintain all security related software and equipment (such as
firewalls, companion management stations, authentication
services) in the TriZetto data center.
(xxiv) Develop, provide, manage, maintain, enhance and upgrade all
intrusion detection hardware and software, firewalls, content
filtering and virus protection systems as required in
TriZetto's judgment.
(b) PHYSICAL SECURITY. TriZetto will:
(i) Perform all physical security functions (e.g., identification
badge controls, alarm responses, or CCTV) at any facilities not
provided to TriZetto by Client from which TriZetto provides the
Services, or rooms at any facility dedicated to housing
TriZetto equipment or used to store Client Data.
(ii) Design functions to protect against damage to property and
people.
(iii) Provide, implement, maintain, upgrade and enhance the TriZetto
equipment and Supported Applications as required to provide a
safe and secure environment at such facilities.
(iv) Respond to, investigate and document the occurrence of security
violations at such facilities.
(c) MONITORING. The parties acknowledge that TriZetto computer systems,
which may be used for the Supported Applications, may be monitored for
all lawful purposes, including ensuring that their use is authorized,
for management of the system, to facilitate protection against
unauthorized access, and to verify security procedures, survivability
and operational security. Monitoring includes active attacks by
authorized TriZetto entities to test or verify the security of such
systems. During monitoring, information, including but not limited to
the Client Data, may be examined, recorded, copied and used for
authorized purposes. All information, including but not limited to
personal information, placed on or sent over such systems may be
monitored. Client hereby consents to such monitoring of these systems.
Further, Client agrees that unauthorized use by Client or its End
Users of the TriZetto systems may subject Client or its End Users to
criminal prosecution. Evidence of unauthorized use collected during
monitoring may be used for administrative, criminal or adverse action.
(d) POLICIES. Client agrees that it, its End Users, its Affiliates, and
any Third parties which gain access to or use of the Supported
Applications or TriZetto systems shall agree to and be subject to the
terms of TriZetto's standard acceptable use policies and other
security policies applicable to the Services.
7. Network Management Services
(a) GENERAL. TriZetto shall be responsible for the operation,
administration and management of the wide area network facilities
provided by TriZetto for accessing the Supported Applications (the
"Network") 24 hours per day, seven days per week, as described below.
(b) NETWORK ENGINEERING. TriZetto responsibilities with respect to network
engineering shall include the following:
(i) Monitoring and managing network performance by utilizing
network performance management and monitoring processes and
tools.
A.1-13
(ii) Monitoring the capacity and configuration of the network,
including monitoring and tuning the network for efficiency;
conducting network benchmarks and thresholds; load balancing
network traffic; scaling the infrastructure (e.g., sizing data
lines and equipment to provide necessary bandwidth) in response
to then-existing or forecasted levels of demand; configuring
requirements; coordinating with service and supply vendors;
evaluating the principal performance indicators of network
operation; verifying service levels; identifying bottlenecks;
and establishing trends for decision making and planning. These
measurements may take the form of overall throughput, percent
utilization, error rates, or specific performance measurements
such as packets per second.
(iii) Identifying, with Client' reasonable assistance, future loads
on the network that could impact performance and developing
forecasts of network growth and other changes in response to
the projected business needs of Client.
(iv) Monitoring the utilization of circuits to determine appropriate
sizing and port speed, given the topology of the network and
Client' usage patterns.
(v) Maintaining reasonable levels of network circuit quality.
TriZetto shall investigate reported problems with the
responsible third party vendor and attempt to remedy any
quality degradation in the circuit. However, if remedying the
circuit problem would require the circuit to be taken out of
service, TriZetto shall notify Client and schedule the work.
(vi) Monitoring and managing third party contracts for ordering,
managing the upgrades of, and installing network circuits,
software and equipment.
(vii) Network planning and design activities.
(viii) Maintaining network equipment inventories, circuit diagrams,
location lists, and other network documentation and
information.
(ix) Verifying restoration of availability following problems with
network circuits or equipment.
(x) Managing the implementation of network modifications within a
reasonable timeframe.
(c) NETWORK ADMINISTRATION. TriZetto's network administration tasks
include:
(i) Performing network administration and documentation functions.
(ii) Managing the installation of network equipment.
(iii) Verifying usage based communications costs.
(iv) Maintaining documentation of routers, bridges and hub
configurations and maintaining network map and probe lists for
the network.
(d) NETWORK CONNECTIVITY AND OPERATIONS. TriZetto shall be responsible for
managing network connectivity and operations for the network.
TriZetto's responsibilities with respect to network connectivity and
operations shall include the following:
(i) Proactively managing and monitoring the network through the use
of a network monitoring system, including monitoring of circuit
performance and utilization.
(ii) Notifying the Help Desk of any network outage and proceeding
with remediation procedures.
(iii) Tracking, managing, communicating and resolving network
exceptions.
A.1-14
(iv) Working with all involved parties (e.g., other vendors, Client
personnel) to resolve network problems.
(v) Managing the provisioning, installing, upgrading,
troubleshooting, maintaining and repairing of network circuits,
equipment and software as required to meet Client's operational
and bandwidth requirements.
(vi) For network circuits, managing the connectivity and the
communications related equipment and software in support
thereof, to Client locations.
(vii) Evaluating and testing, in advance, network, terminal, and
interface equipment. TriZetto shall configure and install
equipment that will be attached to, and will communicate over,
the network.
(viii) Scheduling network outages related to installation,
maintenance, expansions and modifications during hours that
meet operational needs and minimize disruption. TriZetto shall
notify Client, as appropriate, prior to the scheduled outage
unless otherwise agreed to by Client.
(ix) Reporting circuit and equipment outages to the appropriate
vendor and tracking and escalating as required for timely
resolution.
(x) Maintaining redundancy and alternative routing schemes.
(xi) Providing network management services to proactively monitor
Client's telecommunications environments for service
degradation, including detection, isolation, diagnosis and
correction of problems on a 24 hours per day, seven days per
week basis.
8. Other Services
(a) WORK ORDER MANAGEMENT
(i) TriZetto will implement a process for Client to request
products, functions and services which are not supplied by
TriZetto within the above scope of services ("Work Orders").
The Work Order process will be subject to mutual written
agreement of the parties with regard to products, functions,
services and additional costs to Client resulting from such
Work Order requests and will provide procedures for the
following: logging of requests, evaluation, required approvals,
prioritization, scheduling, implementation and status
reporting.
(ii) More specifically, TriZetto will:
(A) With the cooperation of Client, develop functional and/or
technical requirements and plans in response to Work Orders.
(B) Design, build, buy or reuse technology components that meet
functional requirements. TriZetto will facilitate reuse and
standardization to comply with TriZetto's technical standards.
(C) Provide support for Work Orders, including: interfacing with
Client end users initiating the Work Order; informing TriZetto
staff of the changes to the environment; and supporting
Client's coordination and acceptance of any Work Order
deliverables.
(D) Manage all TriZetto and third party supplier tasks and
coordinate with appropriate personnel from Client.
(E) Log Work Orders promptly after receipt and monitor and control
each request until complete or otherwise resolved.
A.1-15
(F) Provide a mechanism for expedited handling of Work Orders
identified to TriZetto by Client as high priority.
(b) CONSULTING SERVICES. TriZetto will provide to Client the following
consulting Services that are provided by TriZetto at additional cost
to the Client:
(i) Identify strategies and approaches for future information
technology delivery that may provide Client with competitive
advantages.
(ii) Assist Client in setting Client's technology direction and
strategy.
(iii) Assist Client in aligning Client's technical architecture with
its business and technical strategies.
(iv) Support Client in the management and representation of
technology product and service offerings to its internal
Clients.
(v) Provide assistance to Client in preparing annual technology
budgets and defining technology requirements.
(c) THIRD PARTY PROVIDERS OF PRODUCTS AND SERVICES
(i) TriZetto will manage its relationships with third party
providers of products and services provided or performed as
part of the Services, to the extent that those third party
providers of products and services contract directly with
TriZetto and as described below in this section.
(ii) More specifically, TriZetto will:
(A) Manage operational day-to-day service delivery by such third
party providers, monitor performance, escalate problems for
resolution, and maintain technical support relationships.
(B) Serve as the interface for providing Services via third party
providers.
(C) Provide Client with a relationship manager who will serve as a
single point-of-contact within TriZetto for related inquiries
and requests.
(d) REPORTS
(i) WEEKLY. TriZetto will provide to Client weekly status updates
regarding any Change Orders in progress.
(ii) MONTHLY. TriZetto will provide to Client the following monthly
reports:
(A) Standard TriZetto performance reports regarding availability
and performance in the TriZetto equipment (such as trend
analysis).
(B) Help Desk and Problem Management.
(C) Monthly Help Desk management reports to indicate Client call
volumes and problem trends, the number of service calls
received and responded to, and the elapsed duration of the
service call. Such reports may provide recommendations to
reduce calls.
(D) Statistics on the types of problems, total number of problems,
outstanding problems and resolution times (such as the average
time to resolve problems). TriZetto will track and report any
backlog of unresolved problems.
A.1-16
(E) Performance against Service Level reports.
(iii) OTHER. TriZetto will provide to Client such other reports as
follows:
(A) Disaster Recovery Plan test reports which will provide
proposed modifications to the Disaster Recovery Plan to
correct problems arising during such test.
(B) Such other reports requested by Client and agreed to in
writing by TriZetto, for additional costs agreed to by the
parties.
A.1-17
EXHIBIT A.2
DESCRIPTION OF TRANSACTION SERVICES
The following is a general description of Transaction Services. In all cases the
Responsibility Matrix annexed at the end of this Exhibit shall control as a
description of each party's responsibilities hereunder regarding Transaction
Services.
1. BENEFIT PLAN, PROVIDER FILE, CONTRACT LOAD AND MAINTENANCE. TriZetto will
be responsible for the loading and maintenance of all benefit plan,
provider reimbursement, broker and other contract files that support
CLIENT's business, including:
(a) BENEFIT PLAN. TriZetto will be responsible for the timely and
accurate configuration and maintenance of the CLIENT's benefit designs
in the claims payment system.
(b) PROVIDER FILE AND FEE SCHEDULE MAINTENANCE. TriZetto will be
responsible for the operational administration of CLIENT's provider
relationships, including responsibility for loading and maintaining
provider files and fee schedules in the claims payment system.
Provider maintenance shall include all changes to be made to the
provider demographic information stored in the claims payment system
for any participating or non-participating provider, as well as all
provider reimbursement data such as fee schedules, capitation rates,
etc.
(c) PROVIDER CONTRACT DESIGN, LOAD AND MAINTENANCE. TriZetto will be
responsible for loading and maintaining provider contracts in the
claims payment system and for maintenance of provider capitation
pools, each as needed to support CLIENT's Business.
2. CLAIMS PROCESSING. TriZetto will process all of the CLIENT's paper and
electronic claims through the Facets batch adjudication module. Those
claims that are pended by Facets will be completed by the CLIENT's staff.
TriZetto will manage the processes required to pay all claims on the
CLIENT's check stock or drafts. All claims will be paid from one or more
accounts designated by the CLIENT, which accounts may also include employer
accounts. The specific services to be provided by TriZetto include:
(a) CLAIMS ACCEPTANCE: RECEIPT, TRANSLATION, MAPPING OF CLAIMS
AND OTHER DATA. TriZetto will connect to regional or national
clearinghouses (such as UHIN, NEIC and NDC) to receive CLIENT's
claims data electronically. TriZetto will check such data
received for completeness and accuracy and prepare data for
claims adjudication. Using scanning technology, TriZetto will
convert paper claims to electronic form for the providers who
lack automated billing capability including claims submitted in a
hand-written format, as well as claims submitted in other than
standard HCFA and UB formats. All paper and electronic claims
will be loaded to the Macess system so that claim images are
viewable by Client's staff. TriZetto agrees that it will provide
CLIENT with 24 hours/day, seven day a week access to the claim
images as well as the verified data.
(b) CLAIMS SUBMISSION. TriZetto will submit all of the CLIENT's
electronic and paper claim receipts to the Facets batch
processing module for adjudication. Claims adjudicated by the
Facets batch processing module that result in a payment will be
handled by TriZetto as described in (e) and (f) below. Claims and
their images pended by the Facets batch module will be sent to
the CLIENT for completion via the MACESS workflow process. After
these pended claims have been completed by the CLIENT, they will
be handled by TriZetto as described and (e) and (f) below.
(c) CLAIMS REPORTING - TriZetto shall be primarily responsible for
the development and preparation of claims reports. TriZetto will
develop claims reports as needed to support the general business
needs of CLIENT, and for reporting purposes to CLIENT's
regulatory agencies and customers.
(d) MAILING OF CLAIM RELATED NOTICES. TriZetto will be responsible
for sending electronic or paper communications, explaining the
results of claims adjudication, to providers and other
individuals who have submitted claims. Such documents will
include the distribution of Explanation of Benefits (EOBs) to
members for all claims as well as the distribution of a
Remittance Advice (RA) with all claim payments made to providers.
CLIENT may be allowed to include limited inserts in such mailings
at no cost to CLIENT upon approval by TriZetto.
(e) HANDLING OF CHECKS. TriZetto will expeditiously and competently
perform claims payment services, including, but not limited to,
the following:
A.2-1
i) DISBURSING AGENT - Payment of claims shall be made from
funds of or arranged for by CLIENT. Checks will be signed by
TriZetto personnel in CLIENT's name and will be in a form
specified by CLIENT, upon a bank account, or accounts
established and maintained by CLIENT for the purpose of
payment of such claims. Check printing shall be the
responsibility of TriZetto. No check shall be released by
TriZetto without prior approval of the payments by CLIENT as
outlined in the policies and procedures developed between
CLIENT and TriZetto governing the release of checks.
ii) AUTHORIZED SIGNATURES - CLIENT shall be responsible for
designating which TriZetto employees are authorized to sign
checks on behalf of CLIENT.
iii) CLIENT'S ACCOUNTS - CLIENT agrees to maintain sufficient
funds in a bank account(s) to cover checks disbursed by
TriZetto in connection with claim processing services
provided under this Agreement, which account or accounts may
be zero balance accounts under which checks are covered from
other funds of the account owner upon presentation for
payment. No check shall be released by TriZetto without
prior approval of the payments by CLIENT, as outlined in the
policies and procedures developed between Client and
TriZetto governing the release of checks.
iv) SECURITY PROCEDURES - TriZetto or its designee shall employ
security procedures with respect to the handling of checks
and drafts and any equipment used to produce them. TriZetto
shall protect and maintain all claim checks and signature
plate, if any, laser printing equipment and other such
equipment from theft or unauthorized use. Access to checks
and such equipment shall be in secured and controlled areas.
v) EMPLOYER ACCOUNTS - For certain self-insured products,
payment of claims may be disbursed from the funds of an
employer or other party contracting with CLIENT. TriZetto's
obligations with regard to these accounts will be the same
as for products for which payment is made from CLIENT's
funds. TriZetto, on behalf of CLIENT, will be responsible
for securing any necessary authorizations from the employer
or other party contracting with CLIENT to allow TriZetto to
access such funds as required. No check shall be released by
TriZetto without prior approval of the payments by CLIENT,
as outlined in the policies and procedures developed between
Client and TriZetto governing the release of checks.
3. MANAGEMENT AND OVERSITE OF TRANSACTION SERVICES. CLIENT and TriZetto
mutually acknowledge that extensive ongoing interaction and coordination
between the parties will be required in order to assure that the
Transaction Services described in this Agreement are performed in
accordance with the expectations of the parties. Therefore, each
organization will appoint an individual responsible for managing all of the
interactions that must take place between his/her organization and the
other party:
(a) TRIZETTO CLIENT SERVICES MANAGER. TriZetto will appoint a CLIENT
Services Manager. The TriZetto Client Services Manager will serve
as the CLIENT's single point of accountability with regard to any
matter related to the delivery or performance of Transaction
Services. He or she will also interact with all of the other
organization units within TriZetto that play a supporting role in
the delivery of Transaction Services in order to assure that
those individuals understand, on a continuous basis, their role
in supporting the CLIENT's needs. TriZetto will obtain the
CLIENT's approval before appointing a CLIENT Services Manager.
The CLIENT agrees that it will not unreasonably withhold such
approval.
(b) CLIENT REPRESENTATIVE. The CLIENT will appoint an individual who
will become the TriZetto CLIENT Services Manager's principle
contact within its organization. This CLIENT representative will
monitor TriZetto's performance of the Transaction Services
described in this Agreement on a day to day basis and communicate
the CLIENT's business plans to the extent that they will impact
Transaction Services provided by TriZetto. The CLIENT
representative will also manage the day to day interactions that
will take place between various CLIENT organizational units and
TriZetto and all other communications between CLIENT and TriZetto
required to assure that the Transaction Services are performed in
accordance with the parties' expectations.
A.2-2
4. RESPONSIBILITY MATRIX.
TRIZETTO CLIENT
TASK: PERFORMS PERFORMS OTHER COMMENTS:
-------------------------------------------------------------- ------------ ----------- --------- ------------------------
1. ENROLLMENT:
GENERAL ENROLLMENT RESPONSIBILITIES:
Electronic, tape and paper enrollment and Member data X
receipt
Electronic or tape connect to CLIENT accounts including X
commercial accounts, State and HCFA as jointly agreed to
by CLIENT and TriZetto
Follow-up calls/letters to members and employers to collect X
missing data
Enrollment file reconciliation - system reconciliation X
only. TriZetto's recommendation is to have TriZetto do the
enrollment reconciliation.
Provision of Member eligibility verification access to X CLIENT will provide
Providers, pharmacy benefit managers, and other service list of current
partners interfaces
MEMBER MEMBERSHIP MATERIALS:
Responsibility for cost of Member membership materials X
Creation of Member membership materials X
Purchase of materials X
Postage expense associate with distribution of materials X
Preparation and distribution of materials to Members X
Preparation and distribution of member identification cards X
ENROLLMENT REPORTING:
General responsibility for creating standard and ad hoc X CLIENT using Facets
enrollment and membership reports
Responsibility for generating standard enrollment reports X CLIENT using Facets
OTHER ENROLLMENT SERVICES:
General Member correspondence regarding enrollment issues X
General responsibility for postage and distribution X
expenses associated with member correspondence, other than
new member materials
2. BILLING / ACCOUNTS RECEIVABLE:
GENERAL BILLING / AR RESPONSIBILITIES:
Creation of billing forms X
Purchase of billing form stock and supplies X
Preparation and distribution of bills to CLIENT accounts X
Postage and distribution expenses associated with billing X
functions
Billing reconciliation X
Collect monies owed to CLIENT X
Interface with outside systems including the ability to X See agreed upon
accept tape input of lockbox receipts and outside batch interface list
systems
PREMIUM CALCULATION:
Calculation of premiums X
Generate adjustments due to retroactivity X
INVOICE GENERATION:
Support preliminary/trial billing run and random sampling X
of billing invoices to identify potential problem areas
ACCOUNT RECONCILIATION:
Accept paperless eligibility and premium information in X See agreed upon
formats jointly agreed to by TriZetto and CLIENT interface list
A.2-3
TRIZETTO CLIENT
TASK: PERFORMS PERFORMS OTHER COMMENTS:
-------------------------------------------------------------- ------------ ----------- --------- ------------------------
3. BENEFIT PLAN DESIGN, LOAD MAINTENANCE
General responsibility for the design and modification of X
SPDs and benefit plans within parameters agreed to by
CLIENT and TriZetto
Loading and maintenance of benefit plans in the Claims X
processing system
PROVIDER FILE AND FEE SCHEDULE MAINTENANCE:
Primary responsibility for the design, maintenance and X
updating of the Provider directory and associated fee
schedules and reimbursement methodology
Load, update and maintain Provider/vendor demographics on a X
schedule and through a process agreed to by TriZetto and
CLIENT
Load and maintain fee schedules or other appropriate X
payment methodology
CONTRACT LOAD, DESIGN AND MAINTENANCE:
Primary responsibility for the design and market X
administration of Provider contracts
Provider contract load and maintenance X
Maintenance of capitation programs as jointly agreed to by X
the CLIENT and TriZetto
BENEFIT, PROVIDER AND CONTRACT REPORTING:
General responsibility for creating standard and ad hoc X Client using Facets
benefit, Provider and contract reports reports
Monthly benefits by group report X Client using Facets
reports
Benefit and maximums accumulation by member X Client using Facets
reports
A.2-4
TRIZETTO CLIENT
TASK: PERFORMS PERFORMS OTHER COMMENTS:
-------------------------------------------------------------- ------------ ----------- --------- ------------------------
4. CLAIMS
CLAIMS ACCEPTANCE, ENTRY AND PRE-PROCESSING:
Accept EDI and paper Claims/encounters in UB92 and HCFA X
1500 standard formats as well as all non-standard
formats submitted. Scan and store images of all
claims and all attachments submitted with each.
Responsibility for expenses associated with connecting to X
any non-standard Claims clearinghouses
Scan paper Claims; convert to electronic format X
Check for duplicate Claims X X TriZetto for claims
adjudicated on a batch
basis and Client for
pended claims and
adjustments
Auto-match Claim to correct Provider, member, fee schedule X X TriZetto for claims
and benefit plan adjudicated on a batch
basis and Client for
pended claims and
adjustments
CLAIMS ADJUDICATION:
Adjudicate claims automatically X
Adjudicate claims requiring manual intervention X
Incorporate Claims prior authorization information entered X TriZetto through
through prior authorization system interface
Check first time Claims from members for applicable X X TriZetto for claims
exclusions under pre-existing condition policy (if adjudicated on a batch
appropriate, per benefit plan) basis and Client for
pended claims and
adjustments
Approve or deny Claim automatically based on Claims Manual X
rules, authorization / referral / pre-certification rules
Track and pay Claims against benefit and lifetime maximums, X X TriZetto for claims
as appropriate adjudicated on a batch
basis and Client for
pended claims and
adjustments
Capture and administer relative to any stoploss provisions X X TriZetto for claims
in a specific benefit plan adjudicated on a batch
basis and Client for
pended claims and
adjustments
PENDED CLAIMS PROCESSING:
Automatically pend Claims based on rules created by CLIENT X
and agreed to by TriZetto
Generate automated correspondence from the Facets system X X TriZetto for claims
based on user defined criteria of pend reasons adjudicated on a batch
basis and Client for
pended claims and
adjustments
Perform 1st level medical review of pended Claims X
Perform 2nd level (Medical Director Level) review of pended X
Claims
Print, stuff and mail Facets system generated X
correspondence from central location
A.2-5
COORDINATION OF BENEFITS (COB), THIRD PARTY LIABILITY (TPL)
AND SUBROGATION:
Enter and update COB information per member and subscriber X
as part of the enrollment process
Update COB information on existing members, as updates received. X
Review all Claims for COB, TPL or other non-CLIENT liability X X TriZetto for claims
adjudicated on a batch
basis and Client for
pended claims and
adjustments
Prioritize coverage of primary insurance of dependents X X TriZetto for claims
using the birthday rule adjudicated on a batch
basis and Client for
pended claims and
adjustments
Produce form letters to inquire about COB and TPL coverage X X TriZetto for claims
adjudicated on a batch
basis and Client for
pended claims and
adjustments
Adjudicate COB, TPL and subrogation at the time of Claim X X TriZetto for claims
processing adjudicated on a batch
basis and Client for
pended claims and
adjustments
Identify potential subrogation Claims by ICD-9 diagnosis X X TriZetto for claims
codes adjudicated on a batch
basis and Client for
pended claims and
adjustments
CLAIMS PAYMENT:
Financial responsibility for Claims liability X
Management of cash balance of Claims payment bank accounts, as required X
to meet Claims payment guidelines and performance standards
Pay Claims based on the appropriate fee schedule or X X TriZetto for claims
payment methodology, as jointly agreed to by CLIENT and adjudicated on a batch
TriZetto basis and Client for
pended claims and
adjustments
Determine capitation contract/Claims pool/plan X
responsibility, as appropriate
Calculate Provider payment withholds, as appropriate X
Accommodate and auto-assign custom check stocks based on X
benefit plan and assigned Provider contract rules
Incorporate any adjustments or voids into Provider payment X X TriZetto for claims
according to specific procedures developed by adjudicated on a batch
CLIENT basis and Client for
pended claims and
adjustments
Transmit remittance advice to Providers in either X
electronic or paper formats
Provide Accounts Payable reporting X TriZetto using standard
Facets reports
Provide EOBs to Members in a format jointly agreed to X
between CLIENT and TriZetto
CLAIMS REPORTING:
A.2-6
Produce standard claims statistics reports on a schedule X TriZetto using standard
agreed to by TriZetto and CLIENT Facets reports
CLAIMS AUDIT:
Provide daily audit of all on-line transactions with batch X
totals
Generate audit and batch totals of all electronic X
transmissions
Provide audit trail of membership retroactivity adjustments X
Provide audit trail of voids, refunds and adjustments X TriZetto using standard
through Claims system Facets reports
Provide cross reference mechanism to trace all checks X TriZetto using standard
associated with a Claim including voids, refunds, and Facets reports
adjustments
Provide audit trail of all cash receipts X Client using standard
Facets reports
Batch adjudication errors discovered through internal Audit X
may be adjusted by TriZetto staff according to specific
procedures developed by CLIENT
TRIZETTO CLIENT
TASK: PERFORMS PERFORMS OTHER COMMENTS:
------------------------------------------------------------- ------------- ----------- -------- --------------
5. FINANCE
NON-CLAIMS FINANCIAL PROCESSING:
General responsibility for non-Claims accounts receivable X
accounts payable and other day to day non-Claims financial
processing
Issue checks for payment, other than Claims, on behalf of X
the CLIENT
CLAIMS FINANCIAL PROCESSING:
Issue checks for Claims payment on behalf of the CLIENT X
Interface to accounts payable X See agreed upon
interface list
Generate 1099 forms for Providers X
FINANCIAL REPORTING TO BE SUPPLIED BY TRIZETTO:
COB savings report X TriZetto using
standard Facets reports
Third party liability recovery report X Trizetto using
standard Facets reports
Capitation rate and revenue allocation by: X
Age/sex/class X TriZetto using
standard Facets reports
A.2-7
TRIZETTO CLIENT
TASK: PERFORMS PERFORMS OTHER COMMENTS:
------------------------------------------------------------ ------------- ------------ -------- --------------
6. PROVIDER NETWORK MANAGEMENT
GENERAL RESPONSIBILITIES:
General responsibility for the contracting, service and X
management of CLIENT's Provider network
Negotiate, update and maintain Provider fee schedules or X
other Provider payment agreements
Develop and maintain the Provider manual X
Update and maintain participating Provider list X
PROVIDER NETWORK MAINTENANCE AND SERVICE:
General responsibility for contracting, renewing and X
servicing Providers in CLIENT's Provider network
Train contracted Providers regarding Claims submission X
policies, and any other procedures relevant to the
Agreement between TriZetto and CLIENT
Update and maintain and transmit to TriZetto a schedule of X
network Providers, at a frequency agreed to by TriZetto and
CLIENT
Service contracted Providers; provide on-site support to X
network Providers, as appropriate
Provide telephonic support to Providers to answer Provider X
questions
Provide Member eligibility verification to Providers X
CREDENTIALING:
General responsibility for credentialing and verification X
services
Responsibility for collection of Provider credentialing X
information
PROVIDER CONTRACTS:
Design of Provider contracts X
Contract general review and analysis X
Contract Legal review X
Negotiation of Provider contracts X
Negotiation of contracts with third party vendors X
Maintain Provider contract status (e.g., approved, X
terminated, etc.)
Design Provider incentive programs X
Administer Provider incentive programs X
8
EXHIBIT B.2
TRANSACTION SERVICES
SERVICE LEVELS
1. GENERAL
a. SECTION 6 of this EXHIBIT B.2 sets forth the performance standards
("Service Level(s)") that have been established for the Transaction Services
provided to Client as described in Exhibit A-2.
b. The Service Level penalties identified in Section 6 of this
Exhibit B.2 shall become effective on the first of the fourth month after the
"go live" date. The "go live" date, as used in this context, refers to the date
on which TriZetto will begin providing each Transaction Service using TriZetto's
Supported Applications on Client's behalf as defined in the Statement of Work.
TriZetto's actual performance against each of these Service Levels will be
measured and reported to Client on a monthly basis beginning the first month
after "go live". Client will be sent these reports within 30 days after the end
of each month.
c. Except as otherwise specified, all references to hours shall be to
actual hours during a business day; all references to time shall be to local
time at Client's headquarters site; and all references to days, months and
quarters shall be to calendar days, calendar months and calendar quarters,
respectively, unless otherwise specified.
d. Any changes to Service Levels must be jointly agreed to by the parties
in accordance with the Change Control Process.
2. TRANSACTION SERVICES AUDITS
a. TriZetto will conduct regular quality assessment audits designed to
assure the integrity of the processes it employs in the performance of the
Transaction Services. These quality assessment audits will use a statistically
valid sampling technique and will be conducted in accordance with the TriZetto's
standard policies and procedures. TriZetto will use these quality assessment
audits to determine its monthly performance for each of the Service Levels
described in this EXHIBIT B.2 and will provide these results to Client each
month.
b. The elapsed time for completing each type of transaction and the
accuracy with which they are performed will be subject to the audits described
in this Section and the calculations in SECTION 6.
3. SERVICE LEVEL CREDIT CALCULATIONS
a. SECTION 6 also includes the credits Client may apply against
TriZetto's Transaction Services Fees as a result of its failure to meet the
Service Levels described in this EXHIBIT B.2 ("Service Level Credits"). Each
Service Level Credit shall be Client's sole and exclusive remedy for TriZetto's
failure to meet the related Service Level.
b. Service Level Credits will be subject to the following limitations:
(i) Each month, 5% of TriZetto's Transaction Services Fees,
which are paid by Client in accordance with Exhibit C in the month, will
constitute a "Service Level Credit Pool" available to Client for failures of
TriZetto to meet Service Levels occurring during that month.
(ii) In no event shall the total Service Level Credits for any
month exceed the Service Level Credit Pool for such month.
c. When one event causes the failure of multiple Service Levels during
any one month, Client will be entitled to recover only one single Service Level
Credit associated with the one event.
B.2-1
d. Within 30 calendar days after receipt of the report provided each
month by TriZetto regarding its performance against the Service Levels, TriZetto
shall credit such amount on the subsequent monthly invoice, or as otherwise
agreed between Client and TriZetto. The Service Level Credit shall be Client's
sole and exclusive remedy for the Service Level default to which the Service
Level Credit applies.
e. The Service Level Credit Allocations are set forth in the Service
Level tables below in SECTION 6. "Service Level Credit Allocations" shall mean
the percentage of the Service Level Credit Pool available to be applied as a
Service Level Credit with respect to each Service, as applicable. Any
modification to the Service Level Credit Allocations will require joint
agreement between the parties in accordance with the Change Control Process.
f. If Client experiences an extraordinarily large increase in its demand
for Transaction Services in a given period, TriZetto will take all reasonable
steps required to assure that it provides the Services in accordance with the
Service Levels during such a period. Such steps would include, but not be
limited to, causing TriZetto employees providing Transaction Services to work
overtime, hiring temporary employees and using other TriZetto employees, who are
not regularly part of the Client Services Team, to perform Transaction Services,
subject to payment of additional costs for such steps. If, despite such steps,
TriZetto incurs a Service Level default for any one or more of the Transaction
Services impacted by the extraordinarily large increase in demand (for example,
the immediate exit of a competitor from the marketplace or a high-volume open
enrollment period), TriZetto will notify Client and the Service Level Credits
resulting from such Service Level default shall be waived. No Service Level
Credits will accrue for any Service Level default prior to the first day of the
fourth month after the Transaction Services "go live" date as defined below in
SECTION 6.a.(i).
4. EXCLUSIONS
a. EXCEPTIONS. TriZetto shall not be responsible for its failure to meet
a Service Level due to an Exception. "Exception" shall mean any of the
following:
(i) any delay or failure that is caused, directly or
indirectly, without fault by TriZetto, by an event beyond the reasonable control
of TriZetto or other emergency or force majeure events described in SECTION
12(g) of the Agreement or during a disaster recovery situation; or
(ii) outages during pre-scheduled maintenance periods or
pre-scheduled system downtime ("Maintenance Windows") or other periods approved
by Client; or
(iii) any act or omission of Client, including without limitation
the failure of Client to perform or provide any relevant assistance, data,
information or infrastructure required of Client under the Agreement or
reasonably requested by TriZetto; or
(iv) disruption to or interruption of telecommunications
facilities or lines, including but not limited to frame relay connections.
b. MAINTENANCE WINDOWS. Client acknowledges that TriZetto regularly
schedules Maintenance Windows (as described below) for maintenance or other
system needs. Notice of Maintenance Windows will be provided to Client's
designated point of contact by a method elected by TriZetto (telephone, email,
fax or pager). Following are TriZetto's generally scheduled Maintenance Windows:
(i) MAINTENANCE WEEKENDS: When necessary, TriZetto will
schedule system downtime on the third Saturday and Sunday of each month from
Saturday 8:00 p.m. until Sunday 8:00 p.m., Mountain Time.
(ii) ONLINE DOWNTIME: TriZetto will notify Client whenever
scheduled downtime is required during online availability.
5. DESCRIPTIONS OF SERVICE LEVELS
B.2-2
a. PROVIDER FILE SET-UP AND MAINTENANCE. The Service Levels for Provider
File Set-Up and Maintenance Transaction Entry refer to (1) the period that
elapses between the time that TriZetto receives a completed Provider File Set-Up
or Maintenance Transaction request and the time that the Provider File Set-Up or
Maintenance Transaction is completely entered into the TriZetto system and (2)
the accuracy with which Provider File Set-Up and Maintenance Transactions are
entered into the TriZetto system.
b. CLAIM/ENCOUNTER PROCESSING ACCURACY. The Service Levels for
Claim/Encounter Processing Accuracy refer to the accuracy of TriZetto's
processing and payment of claims. TriZetto's compliance with the procedure for
processing Claims will be determined by a quality audit, as described in SECTION
2. In the method of calculation described below, applicable to the service level
metric that requires TriZetto to pay at least 99% of all batch adjudicated claim
dollars correctly, includes the words "Total Dollars In Audit." As used in the
calculation of this Service Level, Total Dollars means the total value of the
claims included in the sample after this total has been corrected for any errors
identified through the audit.
c. CLAIM/ENCOUNTER PROCESSING TIMELINESS. The Service Levels for
Claim/Encounter Processing Timeliness refer to (1) the period that elapses
between the time that TriZetto receives a Claim and the time that Claim is
completely scanned and data verified, and (2) the period that elapses between
the time that a completely scanned and data verified claim is entered into the
Facets system and batch adjudicated.
B.2-3
6. TRANSACTION SERVICES SERVICE LEVELS
TRANSACTION SERVICES PERCENTAGE SERVICE LEVEL 20% PAYOUT 40% PAYOUT 60% PAYOUT 80% PAYOUT 100% PAYOUT
ALLOCATION PERFORMANCE STANDARD OF AVAILABLE OF OF OF OF AVAILABLE
OF SERVICE AND METHOD OF ALLOCATION AVAILABLE AVAILABLE AVAILABLE ALLOCATION
LEVEL MEASUREMENT OF SERVICE ALLOCATION ALLOCATION ALLOCATION OF SERVICE
CREDITS LEVEL CREDIT OF SERVICE OF SERVICE OF SERVICE LEVEL CREDIT
POOL* POOL AT THE LEVEL LEVEL LEVEL POOL AT THE
APPLICABLE CREDIT CREDIT POOL CREDIT APPLICABLE
SERVICE LEVEL POOL AT AT THE POOL AT SERVICE LEVEL
THE APPLICABLE THE
APPLICABLE SERVICE APPLICABLE
SERVICE LEVEL SERVICE
LEVEL LEVEL
--------------------------- ----------- --------------------- ------------- ----------- ------------ ----------- -------------
PROVIDER MAINTENANCE 10% 97% of all Provider 96% 95% 94% 93% 92%
TRANSACTIONS ENTRY Maintenance
transactions loaded
accurately.
*Note: For purposes of
this Agreement,
"Provider Maintenance" Number of error free
includes all changes to Provider Maintenance
the provider demographic transactions
information stored in performed by
Facets for any TriZetto, identified
participating or through audit,
non-participating divided by the total
provider, as well as all number of provider
provider reimbursement maintenance
data such as fee transactions audited.
schedules, capitation
rates, etc.
5% 95% of all Provider 94% 93% 92% 91% 90%
Maintenance
transactions entered
within 5 business
days of receipt.
Number of Provider
Maintenance
transactions
performed by TriZetto,
identified through
audit, that were
loaded in 5 business
days or less divided
by the total number
of Provider
Maintenance
transactions audited.
CLAIM AND ENCOUNTER 15% 98% of all claims 97% 96% 95% 94 93%
PROCESSING ACCURACY adjudicated on a
batch basis free of
procedural errors.
Number of claims
adjudicated on a
batch basis,
identified through
audit, that contain
no procedural errors
made by TriZetto
divided by the total
number of claims
adjudicated on a
batch basis included
in audit
20% 99% of all claims 98% 97% 96% 95% 94%
dollars adjudicated
on a batch basis
paid correctly
Dollar amount of
claims adjudicated on
a batch basis, minus
absolute value of
dollars paid
incorrectly
identified through
audit, divided by the
total dollar amount
B.2-4
TRANSACTION SERVICES PERCENTAGE SERVICE LEVEL 20% PAYOUT 40% PAYOUT 60% PAYOUT 80% PAYOUT 100% PAYOUT
ALLOCATION PERFORMANCE STANDARD OF AVAILABLE OF OF OF OF AVAILABLE
OF SERVICE AND METHOD OF ALLOCATION AVAILABLE AVAILABLE AVAILABLE ALLOCATION
LEVEL MEASUREMENT OF SERVICE ALLOCATION ALLOCATION ALLOCATION OF SERVICE
CREDITS LEVEL CREDIT OF SERVICE OF SERVICE OF SERVICE LEVEL CREDIT
POOL* POOL AT THE LEVEL LEVEL LEVEL POOL AT THE
APPLICABLE CREDIT CREDIT POOL CREDIT APPLICABLE
SERVICE LEVEL POOL AT AT THE POOL AT SERVICE LEVEL
THE APPLICABLE THE
APPLICABLE SERVICE APPLICABLE
SERVICE LEVEL SERVICE
LEVEL LEVEL
--------------------------- ----------- --------------------- ------------- ----------- ------------ ----------- -------------
CLAIM AND ENCOUNTER 20% 97% of all claims 96% 95% 94% 93% 92%
PROCESSING TIMELINESS scanned/data
verified within 3
business days of
receipt.
All claims received
during a particular
month that were
scanned/data verified
within 3 business
days or less of the
receipt date, as
identified by audit,
divided by all claims
received in that
month included
in audit.
20% 97% of claims 96% 95% 94% 93% 92%
entered into Facets
and batch
adjudicated within
three business days
of scanning/data
verification.
All claims entered
into Facets during a
particular month and
batch adjudicated
within 3 business
days of scanning/data
verification,
identified by audit,
divided by all claims
entered and batch
adjudicated that
month included in
audit.
10% 98% accuracy on 97% 96% 95% 94% 93%
entry of fields
required by CLIENT
including scanned
and manually entered
fields
Number of error free
claims
scanned/manually
entered in a month
identified by audit,
divided by the total
claims
scanned/manually
entered in that
month included in
audit.
TOTAL ALLOCATION OF 100%
TRANSACTION SERVICES
POOL
▇.▇-▇
▇▇▇▇▇▇▇▇ ▇.▇
ASP SERVICES
SERVICE LEVELS
1. INTRODUCTION
a. SECTION 9 of this Appendix C.1 sets forth the performance standards
("Service Level(s)") that have been established for the ASP Services provided to
Client pursuant to Appendix B.1.
b. The Service Levels for each Supported Application apply to the release
of such Supported Application then provided to Client. TriZetto does not
guarantee these Service Levels for the Supported Application(s) and shall have
no liability for these Service Levels if Client is using releases of the
Supported Application(s) other than the current release offered by TriZetto or
one major prior release, by way of example one number to the right to the dot of
a version number (i.e., 3.1, 3.2, etc).
c. Except as otherwise specified, all references to hours shall be to
actual hours during a business day; all references to time shall be to local
time at a Client-designated primary location; and all references to days, months
and quarters shall be to calendar days, calendar months and calendar quarters,
respectively, unless otherwise specified.
d. Any changes to Service Levels must be jointly agreed to by the parties
in accordance with the Change Control Process as described in Appendix A.
e. Measurement of a Service Level-related problem will begin when either
the Client notifies TriZetto or TriZetto self-determines that a Service Level is
not being met and will end when TriZetto notifies Client that the Service Level
is being met. Client shall have the right to validate that the Service Level is
being met and if Client can demonstrate to TriZetto's satisfaction that the
Service Level is not being met, TriZetto will adjust its Service Level records
accordingly and will resume Service Level remediation efforts.
f. Service Levels apply beginning first day of the FOURTH month after each
Supported Application is available for productive use.
g. Service Levels are categorized and generally characterized as follows:
(i) Problem Management and Recovery Time Service Level (further
defined in SECTION 6) - e.g., Are Client-reported Availability and Performance
issues resolved in a timely manner?
(ii) Availability Service Level (further defined in SECTION 7) -
e.g., Is the Supported Application available for use by the Client during the
scheduled hours of on-line and batch processing?
(iii) Performance Service Level (further defined in SECTION 8) -
e.g., Does the Supported Application perform in terms of functionality, response
time and throughput consistent with relevant published documentation?
2. SYSTEM MANAGEMENT AND REPORTING
a. PERFORMANCE REPORTS. Unless stated otherwise, TriZetto shall provide a
monthly service level performance report ("Monthly Service Level Performance
Report") that describes TriZetto's compliance with each Service Level. The
reports shall provide sufficient detail for Client to determine whether each
Service Level has been achieved.
B.1-1
b. SYSTEM ENHANCEMENTS AND MAINTENANCE
(i) Advance Notice. Client will be advised no later than thirty
(30) days prior to the availability of any scheduled system enhancements that
will specifically affect Client's operating environment.
(ii) Documentation. Overview documentation and reference manual
documentation will be provided no later than 30 business days prior to the
availability of scheduled system enhancements that will specifically affect
Client's operating environment.
(iii) System Upgrades. Client will be advised no later than three
months prior to the availability of any scheduled major third party vendor
upgrade to the Supported Applications, subject to TriZetto's receiving notice in
sufficient time from its third party vendors to meet the three month advance
notification commitment.
3. SERVICE LEVEL CREDIT CALCULATIONS
a. In addition to defining Service Levels, SECTION 9 includes the financial
credits ("Service Level Credits") that Client may apply to TriZetto's ASP
Services Fees as a result of TriZetto's delay or failure to meet the Service
Levels.
b. Should Client experience for six (6) or more consecutive months
occurrences of complete unavailability of Supported Applications in excess of
four (4) or more hours duration for each occurrence during scheduled on-line
availability, Client shall have the right to terminate this Agreement without
penalty. Otherwise, each Service Level Credit shall be Client's sole and
exclusive remedy for TriZetto's failure to meet the related Service Level.
c. Service Level Credits will be subject to the following limitations:
(i) Each month beginning the first day of the FOURTH month after
each Supported Application is available for productive use, a certain percentage
of TriZetto's ASP Services Fees paid by Client in the month in accordance with
Appendix D.1 will constitute a "Service Level Credit Pool" available to Client
for failures of TriZetto to meet Service Levels occurring during that month.
(ii) The total Service Level Credits for any month may not exceed
the Service Level Credit Pool for that month.
(iii) Unused Service Level Credits for any given month do not roll
forward to the next month.
d. When a single incident, issue or problem causes multiple Service Levels
to not be met during any one-month, Client will be entitled to recover only the
largest single Service Level Credit associated with the one incident, issue or
problem.
e. Within 30 days after receipt of the Monthly Service Level Performance
Report, TriZetto shall credit the total of applicable Service Level Credits to
the subsequent monthly invoice for ASP Services, or as otherwise agreed between
Client and TriZetto.
4. EXCEPTIONS
a. EXCEPTIONS. TriZetto shall not be responsible for its failure to meet a
Service Level due to an Exception. "Exception" shall mean any of the following:
B.2-2
(i) Any delay or failure that is caused, directly or indirectly,
without fault by TriZetto, by an event beyond the reasonable control of TriZetto
or other emergency or force majeure events described in Section 12g of the
Agreement unless the cause of such delay or failure, such as a power failure or
flooding, was reasonably foreseeable and could have been prevented using
reasonable business practices including, but not limited to, adherence to the
TriZetto Disaster Recovery Plan in effect at the time of the occurrence, a copy
of which shall be made available to Client for review upon request;
(ii) Any periods of unavailability during pre-scheduled maintenance
periods or pre-scheduled system downtime ("Maintenance Windows") or other
periods approved in advance by Client;
(iii) Any act or omission of Client, including without limitation
the failure of Client to perform or provide relevant assistance, data,
information or infrastructure required of Client under the Agreement or
reasonably requested by TriZetto, except for Client's failure to take any action
which is not requested by TriZetto and which is not specifically required under
this Agreement;
(iv) Disruption to or interruption of voice or data communication
(WAN) circuits not under the direct control of TriZetto;
(v) If TriZetto DOES NOT own, possess, maintain or support source
code for a Supported Application, including a third party application, TriZetto
shall not be held accountable for the same Service Levels as for software which
TriZetto DOES own, possess, maintain and support source code. For software
related errors or malfunctions for such software, TriZetto shall act as the
first point of contact with the vendor of the affected Supported Application
and, in the event that an error or malfunction is noted within such software,
TriZetto shall submit notification of the problem to the respective vendor and
shall cooperate with the vendor to resolve the error or malfunction. Client
agrees that resolution of a vendor related software problem is highly dependant
on the vendor's responsiveness to TriZetto and, as such, if requested by
TriZetto, Client agrees to give consideration for waiving the Service Level
Credit interim to the vendor's committed resolution date if Client determines
that TriZetto has exerted reasonable efforts in getting the vendor to resolve
the problem, including but not limited to TriZetto re-contracting the related
vendor support agreement or, for sustained problems, replacing the affected
vendor product with an alternative product; or
(vi) For all TriZetto-owned licensed and commercially available and
third party-owned Supported Applications, TriZetto shall exert reasonable
efforts to resolve software related errors or malfunctions consistent with the
Service Levels; however, in the event that the error or malfunction is
classified as Low Priority, or for certain situations classified as Medium
Priority but with Client's approval, TriZetto's responsibility will be to
communicate to the Client the date by which the error or malfunction is planned
to be resolved in either a future general software release or fix distribution
and such problem shall not be calculated as part of any Service Level Credit
hereunder.
5. MAINTENANCE WINDOWS: Client acknowledges that TriZetto regularly schedules
maintenance for maintenance or other system needs. Advanced notice of
Maintenance Windows will be provided to Client, including the following:
a. MAINTENANCE WEEKENDS: When necessary, TriZetto will schedule system
downtime on the third Saturday and Sunday of each month from Saturday 8:00 p.m.
until Sunday 8:00 p.m. Mountain Time. Pre-scheduled Maintenance Weekends shall
be a valid exclusion from determining Service Level Credits.
b. EMERGENCY MAINTENANCE: TriZetto will notify Client whenever scheduled
downtime is required to provide emergency maintenance to the on-line environment
during normal hours of scheduled on-line availability. Emergency maintenance
requiring downtime during Scheduled On-Line Availability of one hour or less
shall be a valid exclusion from determining Service Level Credits no more than
once every 90 consecutive calendar days.
B.2-3
6. PROBLEM MANAGEMENT AND RECOVERY TIME SERVICE LEVEL
a. CUSTOMER SERVICE HELP DESK:
(i) Calls will be responded to based upon the priority they are
assigned by TriZetto using the criteria and measurements described below in
SECTION 6.b. If Client does not agree with the assigned priority, the priority
will be assigned as requested by Client, subject to TriZetto's right to escalate
the disagreement for resolution to TriZetto's Account Management for discussion
with Client management. If Client and TriZetto disagree over the assignment of
such priority, the parties will pursue good faith negotiations in accordance
with the dispute resolution process as detailed in the Agreement.
(ii) Once notified by Client of a Service Level problem, TriZetto
will log the problem and will immediately begin efforts to resolve the problem.
For problems classified as Urgent or High priority, TriZetto will continuously
work to resolve the problem until resolved. TriZetto's initial response to
Client's notification of a Service Level problem will begin with the receipt and
logging of a reported problem from the Client, and such recorded time will be
used as the baseline for determining TriZetto's responsiveness in resolving the
problem, unless TriZetto had previously determined the Service Level problem in
which situation the earlier TriZetto recorded time will be used as the baseline.
(iii) Client recognizes that TriZetto's ability to resolve problems
within the committed Service Levels may be highly dependent upon Client making
available to TriZetto in a timely manner diagnostic information as well as
access to affected or involved Client personnel and, as such, shall cooperate
with TriZetto during the problem resolution process.
(iv) A "problem" shall mean a failure of a Supported Application to
perform substantially as described in the user documentation, as well as the
inability of Client's users to access the Supported Application or any other
Service related issue that results in a disruption of Client's business
operations. As such, TriZetto will perform problem management services in
accordance with SECTION 6.
(v) The Customer Service Help Desk shall be staffed and operational
between the hours of 7:00 a.m. and 7:00 p.m., Monday through Friday; however,
for after-hours weekdays and weekend coverage, Help Desk support shall be
available via a pager notification process to address Urgent priority issues
only.
(vi) TriZetto will measure the call pick-up time ("Call Pick-Up
Time") which shall mean the average period of time it takes for a Client user
call to the TriZetto Help Desk to be answered by a staff person after the caller
has passed through the Automatic Call Distribution system. Required navigation
time within the ACD prior to the user selecting the option to speak with the
Help Desk shall not exceed 60 seconds.
b. PROBLEM MANAGEMENT PRIORITIES
(i) URGENT PRIORITY - Problem completely prevents Client from
performing IT operations in support of its primary line(s) of business (i.e.,
total system becomes unavailable for access to all Supported Applications; no
known problem workaround.
TriZetto Account Management will be notified within 15-minutes
of TriZetto's confirmation of the problem and will provide Client problem
resolution status updates every 2 hours until the problem is resolved.
(ii) HIGH PRIORITY - Problem doesn't prevent Client from performing
most IT operations in support of its primary line(s) of business; however, it
does create a significant operational impact (e.g., inability to print checks
but claims adjudication and other system functions are unaffected); known
problem workaround, including manual procedures.
B.2-4
TriZetto Account Management will provide Client with problem
resolution status updates each business day until the problem is resolved.
(iii) MEDIUM PRIORITY - Problem doesn't prevent Client from
performing IT operations in support of its primary line(s) of business; however,
it does create an operational impact (e.g., system response time has degraded,
but the system functionality is unaffected); known problem workaround, including
manual procedures.
TriZetto Account Management will provide Client with problem
resolution status updates weekly until the problem is resolved.
(iv) LOW PRIORITY - Problem doesn't prevent Client from performing
IT operations in support of its primary line(s) of business; however, it does
create an inconvenience (e.g., report headings are misaligned, but the system
performance and functionality are unaffected); known problem workaround,
including manual procedures.
TriZetto Account Management will provide Client with problem
resolution status updates monthly until the problem is resolved.
7. AVAILABILITY SERVICE LEVEL
a. SCHEDULED ON-LINE AVAILABILITY: The Supported Applications will be
available on-line for Client's use between 7 a.m. and 7 p.m., Monday through
Friday, and 8 a.m. and 4 p.m. on Saturday and Sunday (except during Maintenance
Weekends). If Client requests and TriZetto approves to expand the on-line hours
of availability, TriZetto reserves the right not to include the expanded hours
in the calculation when determining On-Line Availability. While Supported
Applications may be available for online processing outside the above described
hours, performance may occasionally decline due to batch processing and are
therefore not committed nor subject to Service Level Credits. Upon Client
request, TriZetto will exert reasonable efforts to make the on-line environment
available to Client upon completion of batch cycle if batch processing completes
earlier than the Scheduled Batch Availability period end-time.
b. SCHEDULED BATCH AVAILABILITY: The Supported Applications will be
available for batch processing AND DATABASE/SYSTEM BACKUP from 7 p.m. to 7 a.m.,
Monday through Friday, and 4 p.m. Saturday through 7 a.m. Monday except during
Maintenance Weekends.
c. AVAILABILITY CALCULATION: Availability will be calculated on a monthly
basis by computing a percentage, as follows: the numerator shall be calculated
by subtracting the total number of hours or fractional parts thereof due to
Problem interruptions from the total number of hours that all Supported
Applications should have had Scheduled On-Line or Scheduled Batch Availability;
and the denominator shall be the total number of hours that the Supported
Applications should have had Scheduled On-Line or Scheduled Batch Availability.
The length of time of interruptions for each Supported Application shall be
measured from the time interruption event is entered on the TriZetto Help Desk
log, after being notified by Client, and the time entered on the TriZetto Help
Desk log of the recovery from the interruption. Interruption time does not
include that partial or whole time of an interruption that occurs partially or
completely outside of the scheduled On-Line or Batch Availability period,
depending on the nature of the interruption encountered (e.g., On-Line access
doesn't function properly during scheduled Batch Availability). Also,
interruption time does not include time for interruptions that are made at the
request of Client or due to Exclusions as defined in Section 4.
d. AVAILABILITY RECORDS: TriZetto shall maintain adequate records of
Supported Applications availability and shall use such records to produce the
Monthly Service Level Performance Report and other similar reports as required.
8. PERFORMANCE SERVICE LEVEL
B.2-5
a. TRANSACTION RESPONSE TIME
(i) The Service Level for transaction response time refers to the
time it takes for a transaction to complete processing ("Transaction Response
Time"). Using a mutually agreeable sampling technique, Transaction Response Time
will be measured from the time a Client front-end communications processor or
similar device passes a request to a Supported Application to the time the
results are received from the Supported Application by the front-end
communications processor or similar device.
(ii) With respect to any particular transaction (or class or
category of transactions - e.g., inquiry versus query) during any particular
month, using the mutually agreed upon sampling technique, Transaction Response
Time for such transaction (or class or category of transactions) will be
calculated as the number of occurrences of such transaction (or class or
category of transactions) during such month that completed in or under the
Response Time Service Level indicated for such transaction (or class or category
of transactions), divided by the total number of occurrences of such transaction
(or class or category of transactions) during such month, with the result
expressed as a percentage. TriZetto makes no response time commitments for query
transactions, since the performance of such transactions are highly dependent
upon end-user selection criteria and the size of the database(s) being queried.
(iii) While many Supported Applications MAY be available for on-line
processing outside the hours described in SECTION 7.a of this Appendix,
Transaction Response Time Service Levels may occasionally decline due to batch
processing and, as such, are not subject to Service Level Credits nor are they
guaranteed.
b. BATCH THROUGHPUT
(i) The Service Level for batch throughput refers to the ability to
process all scheduled batch jobs during the Scheduled Batch Availability period.
(ii) Batch Processing shall be considered to have been completed on
time if processing for a batch job is completed within the scheduled Batch
Availability period.
(iii) With respect to any particular batch job (or class or category
of batch job) during any particular month, the Service Level for batch
processing will be calculated based upon the number of occurrences of such batch
jobs (or class or category of batch jobs) during such month that processed and
completed during their Scheduled Batch Availability period.
9. SERVICE LEVELS AND SERVICE LEVEL CREDITS
a. SERVICE LEVELS CREDIT POOLS: Two Service Level Credit pools will be
calculated monthly as follows:
(i) Critical Outage Pool: 20% of monthly Hosting Service Fee
(ii) Non-Critical Service Level Credit Pool: 20% of monthly Hosting
Service Fee
b. SERVICE LEVEL CREDITS: Service Level Credits for any given month will be
determined to be the GREATER CALCULATION OF either Critical Outage Service Level
Credits or Non-Critical Service Level Credits.
(i) CRITICAL OUTAGE SERVICE LEVEL CREDITS: If Client experiences an
outage of 8 or more consecutive hours of unavailability for all Supported
Applications during Scheduled On-Line Availability during any one day, Client
shall receive a credit equal to 25% of Critical Outage Pool
B.2-6
for each such outage; however, in any given month, regardless of the number of
such outages, Client shall not receive Critical Outage Service Level Credits in
aggregate for that month greater than the monthly Critical Outage Pool, or:
(ii) NON-CRITICAL SERVICE LEVEL CREDITS: For non-critical service
level problems, allocation shall mean the percentage of the Non-Critical Service
Level Credit Pool to be applied as a Service Level Credit ("Service Level Credit
Allocations") with respect to each Supported Application, as applicable, for
each measured Service Level. Any modification to the Service Level Credit
Allocations require mutual agreement between the parties in accordance with the
Change Control Process:
Application Service: Percentage Service Level Macess/third-party
Allocation of Performance Standard Software Service Level
Service Level Standard Exceptions
Credits Pool
-----------------------------------------------------------------------------------------------
AVAILABILITY:
Facets 20% 99% availability during NA
Scheduled On-Line
availability window,
Monday through Friday
Macess 10% NA 98% availability during
Scheduled On-Line
availability window,
Monday through Friday
PERFORMANCE:
Transaction Response Times 20% 95% within 10 seconds No exceptions to standard
and 99% within 20
seconds, during
Scheduled On-Line
availability window,
Monday through Friday
Scheduled Batch Processing 5% 1 miss per month re NA
completion of nightly
batch schedule during
Scheduled Batch
processing window
PROBLEM MANAGEMENT AND
RESOLUTON TIME:
Help Desk Availability 10% 100% Availability NA
between 7am and 7pm,
Monday through Friday,
and all other hours (via
pager) daily for Urgent
Priority problems
Help Desk Call Pick Up Time 5% 30 seconds or less NA
(measured from time user between 7am and 7pm,
selects ACD option to talk Monday through Friday
with Help Desk)
Urgent Priority Problem 10% 100% of problems 100% of problems
Management corrected within 24 corrected within 48
hours, with exceptions hours, with exceptions
as outlined in Section as outlined in Section
4.a 4.a
High Priority Problem 10% 95% of problems 95% of problems
Management corrected within 2 corrected within 3
business days, with business days, with
exceptions as outlined exceptions as outlined
in Section 4.a in Section 4.a
Medium Priority Problem 5% 95% of problems 95% of problems
Management corrected within 10 corrected within 15
business days, with business days, with
exceptions as outlined exceptions as outlined
in Section 4.a in Section 4.a
Low Priority Problem 5% 95% of problems 95% of problems
Management corrected within 30 corrected within 45
business days, with business days, with
exceptions as outlined exceptions as outlined
in Section 4.a in Section 4.a
Disaster Recovery Service 0% Recovery within the time NA
Levels as defined in TriZetto's
Disaster Recovery Plan
TOTAL ALLOCATION OF ASP 100%
SERVICE LEVEL CREDIT POOL
B.2-7
EXHIBIT C
SERVICE FEES
Fees for each of the Services are described below. Additional services may be
requested by CLIENT and may be provided in accordance with the Change Control
Process.
1. ASP SERVICES
The fee for each Supported Application will be based on either (i) a per
Claimant per month ("PCPM") rate (ii) a per User per month ("PUPM") rate or
(iii) a fixed dollar amount as set forth below:
ASP FEES
---------------------------------------------------------------------
Facets Core Claims System $ 0.775 PCPM
Interface Support
First 20 Interfaces $ 4,250 per month
Each Additional Five Interfaces $ 850 per month
Incremental DASD* $ 0.010 PCPM
MACESS (I-Max-Image Workflow) $ 320 PUPM
* Incremental DASD fees will apply for every 40GB of storage required over
200GB.
Fees determined on a PCPM basis shall be payable monthly beginning in the month
that the Supported Applications first become available for productive use (the
"Go-Live Month"). PCPM fees for any month shall be determined by applying the
rate set forth above against the total number of Members that have submitted one
or more claims that are adjudicated and paid during the twelve-month period
prior to the month of determination (collectively, "Claimants"). The
twelve-month look-back period for any month shall in no case include any month
prior to the Go-Live Month. For purposes of this Exhibit C, a "Member" shall
include any individual eligible to receive behavioral health services from
CLIENT as a subscriber under a contract with CLIENT or with a customer of CLIENT
or as an eligible dependent of a subscriber.
Notwithstanding the foregoing, the number of Claimants used to calculate PCPM
fees for any month shall in no case be less than the amount set forth below:
MONTH DATE SCHEDULED PER MINIMUM
EXHIBIT F CLAIMANTS
--------------------------------------------------------------------------------------
Go-Live Month July 2002 50,000
First Month Following Go-Live Month August 2002 55,000
Second Month Following Go-Live Month September 2002 60,000
Third Month Following Go-Live Month October 2002 65,000
Fourth Month Following Go-Live Month November 2002 70,000
Fifth Month Following Go-Live Month December 2002 75,000
Sixth Month Following Go-Live Month and Thereafter January 2003 85,000
Fees for the MACESS Supported Application will be determined each month based on
the actual number of CLIENT employees and Contractors obtaining access to such
application during such month ("Users"); provided, however, that, for purposes
of determining the fee for the MACESS Supported Application, the number of Users
for any month shall in no case be less than 10.
TriZetto reserves the right in its sole discretion to increase the rates for
each Supported Application (but not the rates for user IDs as specified below)
on an annual basis by no more than 4.5% beginning on the first anniversary of
the Go-Live Month.
In addition to the fees set forth above, CLIENT will pay TriZetto a monthly fee
based on the number of user IDs provided by TriZetto to allow CLIENT's external
customers read-only access to the Supported Applications for the purpose of
determining eligibility and claims status as contemplated by Section 1.b) of the
Agreement. The charge for User IDs is set forth below.
NUMBER OF USER IDS MONTHLY FEE
-----------------------------------------
0 to 25 $ 1,445
26 to 50 $ 1,870
51 to 75 $ 4,335
76 to 100 $ 5,865
101 to 125 $ 7,140
126 to 150 $ 8,755
151 to 175 $ 10,200
176 to 200 $ 11,730
201 to 225 $ 13,005
226 to 250 $ 14,620
2. IMPLEMENTATION SERVICES
Implementation Services described in Exhibit F will be provided by TriZetto for
a fixed fee equal to $425,000. Such fee will be payable as follows:
Upon execution of this Agreement $ 330,000
Within 30 days following execution of this Agreement 60,000
Within 60 days following execution of this Agreement 35,000
Total Implementation Fee $ 425,000
The Implementation Services fee set forth above does not included the following:
1. Travel expenses. Travel expenses shall be billed to CLIENT as an
additional charge. TriZetto will make every reasonable effort to minimize
travel expenses and take advantage of "best available rates and fares"
when possible.
2. CLIENT Specific Interfaces. Any external application interface development
will be separately priced by TriZetto pursuant to the Change Control
Process, except for application interfaces that have already been
developed by TriZetto.
3. Other Out-of-Scope Services. Services not included in the scope of
Implementation Services described in Exhibit F shall be priced in
accordance with the Change Control Process.
3. TRANSACTION SERVICES
A. Benefit Plan, Provider File and Contract Maintenance. Beginning the
Go-Live Month and continuing through the term of this Agreement, CLIENT will pay
TriZetto $12,000 per month for the benefit, provider file and contract
maintenance services specified in Section 1 of Exhibit A-2.
B. Claims Processing. Beginning the Go-Live Month and continuing each month
through the term of this Agreement, CLIENT will pay TriZetto a fee for each
claim that completes adjudication during the preceding month. The fee for each
EDI Claim processed by TriZetto shall be $0.97. An "EDI Claim" shall mean a
claim received by TriZetto in a standard electronic format that does not require
scanning or
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manual data entry and is adjudicated on the Supported Applications. The fee for
all other claims processed by TriZetto shall be $1.31 per claim.
TriZetto reserves the right in its sole discretion to increase the rates for
Transaction Services specified above on an annual basis by no more than 4.5%
beginning on the first anniversary of the Go-Live Month.
4. TELECOMMUNICATIONS SUPPORT
Pursuant to Section 7 of Exhibit A of the Agreement, TriZetto will provide
telecommunications support for CLIENT. In connection with such Services, the
recurring cost of the data link, including a router to be located at CLIENT's
site, shall be charged to CLIENT as a pass through expense.
5. OTHER PROFESSIONAL SERVICES
Ongoing professional services which may be provided by TriZetto as a result of
the Change Control Process shall be provided at the rates set forth below:
SKILL CLASSIFICATION PROFESSIONAL SERVICES
RATES
---------------------------------------------------------------
Principle $ 370.00
Engagement Executive $ 350.00
Project Manager $ 275.00
Lead Consultant $ 225.00
Consultant $ 200.00
Software Engineer $ 200.00
Technical Consulting $ 175.00
Train the Trainer $ 225.00
End User Training $ 200.00
Database/Data Model/Report Training $ 225.00
The professional services rates set forth above will be discounted if the
total volume of professional services, including the Implementation Services
fees described above, performed by TriZetto for CLIENT during any consecutive
12 month period following the date of this Agreement exceeds certain levels.
The discount applicable to each volume level of professional services will
apply only to that level and not to any lower level. The volume levels and
applicable discounts are set forth on the following table.
VOLUME THRESHOLD DISCOUNT LEVEL
---------------------------------------------------------
$250,000 to $500,000 5%
$500,001 to $750,000 10%
$750,001 to $1,000,000 15%
$1,000,001 - $2,000,000 20%
$2,000,001 + 25%
TriZetto reserves the right in its sole discretion to increase the professional
services rates on an annual basis by no more than 4.5% beginning on the first
anniversary of the date the Agreement is executed.
6. TERMINATION FOR CONVENIENCE
Upon Client's early termination of the Agreement for Client's convenience
pursuant to Section 11.c) thereof, Client agrees to pay TriZetto, in addition to
all other amounts owed under the Agreement, a lump
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sum termination payment equal to twenty-five percent (25%) of the product of (i)
one full month of ASP Services fees and Transaction Services fees based on the
actual number of Claimants and claims processed during the month in which notice
of termination is delivered by CLIENT (but not less than the minimums specified
in this Exhibit C), multiplied by (ii) the number of months remaining in the
term of the Agreement.
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EXHIBIT D
REQUIRED EQUIPMENT
Client is responsible for the support and maintenance of Client's desktoand
networking hardware and software as well as connectivity to TriZetto and its
third party customers. TriZetto is responsible for the provisioning, monitoring
and maintenance of the telecommunications circuit from the TriZetto data center
to the CLIENT's primary (hub) location. If CLIENT has multiple locations, or
connectivity to third-party organizations such as CLIENT's customers, CLIENT is
completely responsible for all equipment and telecommunications circuits
required for that connectivity unless alternative contract arrangements are made
with Trizetto for the management of such connections.
TriZetto's implementation schedule is dependent upon installation of WAN
circuits by telecommunications service providers. TriZetto agrees to place firm
orders for circuits at least 120 days prior to the first scheduled APS Go-Live
date, with delivery no later than 30 days before such date. TriZetto agrees to
maintain existing VPN link for testing until the scheduled APS Go-Live Date.
Client agrees to run on its desktops and laptops connecting to the TriZetto
network the current or one (1) previous version of a real-time scan engine of an
industry-recognized, top-tier anti-virus product. Trend Office Scan Corporate
Edition, Norton AntiVirus Corporate Edition and McAfee VirusScan are examples of
acceptable anti-virus products. Client agrees that its desktop and networking
hardware and software shall be sufficiently powerful to run such anti-virus
product.
EXHIBIT E
HIPAA BUSINESS ASSOCIATE ADDENDUM
This HIPAA Business Associate Addendum ("Addendum") supplements and is made
a part of the agreement ("Agreement") by and between APS Healthcare Bethesda,
Inc. ("Client") and The TriZetto Group, Inc. ("TriZetto"), and is effective as
of the compliance date of the Privacy Rule (defined below) (the "Addendum
Effective Date").
RECITALS
A. Client wishes to disclose certain information to TriZetto pursuant to
the terms of the Agreement, some of which may constitute Protected
Health Information ("PHI") (defined below).
B. Client and TriZetto intend to protect the privacy and provide for the
security of PHI disclosed to TriZetto pursuant to the Agreement in
compliance with the Health Insurance Portability and Accountability
Act of 1996, Public Law 104-191 ("HIPAA") and regulations promulgated
thereunder by the U.S. Department of Health and Human Services (the
"HIPAA Regulations") and other applicable laws.
C. The purpose of this Addendum is to satisfy certain standards and
requirements of HIPAA and the Privacy Rule (defined below), including,
but not limited to, Title 45, Sections 164.502(e) and 164.504(e) of
the Code of Federal Regulations ("CFR") and contained in this
Addendum.
In consideration of the mutual promises below and the exchange of information
pursuant to this Addendum, the parties agree as follows:
1. DEFINITIONS.
a. "DESIGNATED RECORD SET" shall have the meaning given to such term
under the Privacy Rule, including, but not limited to, 45 CFR Section 164.501.
b. "PRIVACY RULE" shall mean the HIPAA Regulation that is codified at 45
CFR Parts 160 and 164.
c. "PROTECTED HEALTH INFORMATION" OR "PHI" means any information, whether
oral or recorded in any form or medium: (i) that relates to the past, present or
future physical or mental condition of an individual; the provision of health
care to an individual; or the past, present or future payment for the provision
of health care to an individual; and (ii) that identifies the individual or with
respect to which there is a reasonable basis to believe the information can be
used to identify the individual, and shall have the meaning given to such term
under the Privacy Rule, including, but not limited to, 45 CFR Section 164.501.
d. "PROTECTED INFORMATION" shall mean PHI provided by Client to TriZetto
or created or received by TriZetto on Client's behalf.
2. OBLIGATIONS OF TRIZETTO.
a. PERMITTED USES. TriZetto shall not use Protected Information except
for the purpose of performing TriZetto's obligations under the Agreement and as
permitted under the Agreement and Addendum. TriZetto shall not use Protected
Information in any manner that would constitute a violation of the Privacy Rule
if so used by Client, except that TriZetto may use Protected Information: (i)
for the proper management and administration of TriZetto; or (ii) to carry out
the legal responsibilities of TriZetto.
b. PERMITTED DISCLOSURES. TriZetto may disclose Protected Information
where such disclosure would not constitute a violation of the Privacy Rule if
disclosed by Client and such disclosure is: (i) necessary to perform its
obligations under the Agreement; or (ii) for TriZetto's proper management and
administration. TriZetto may also disclose Protected Information as required by
law.
c. APPROPRIATE SAFEGUARDS. TriZetto shall implement appropriate
safeguards as are necessary to prevent the use or disclosure of Protected
Information otherwise than as permitted by the Agreement and Addendum.
d. REPORTING OF IMPROPER USE OR DISCLOSURE. TriZetto shall report to
Client any use or disclosure of Protected Information otherwise than as provided
for by the Agreement and this Addendum upon becoming aware of such use or
disclosure.
e. TRIZETTO'S AGENTS. TriZetto shall ensure that any agents, including
subcontractors, to whom it provides Protected Information agree to the same
restrictions and conditions that apply to TriZetto with respect to such
Protected Information.
f. ACCESS TO PROTECTED INFORMATION. TriZetto shall make Protected
Information maintained by TriZetto or its agents or subcontractors in Designated
Record Sets available to Client for inspection and copying to enable Client to
fulfill its obligations under the Privacy Rule, including, but not limited to,
45 CFR Section 164.524.
g. AMENDMENT OF PHI. In response to a request from Client for an
amendment of Protected Information or a record about an individual contained in
a Designated Record Set, TriZetto or its agents or subcontractors shall make
such Protected Information available to Client for amendment and incorporate any
such amendment to enable Client to fulfill its obligations under the Privacy
Rule, including, but not limited to, 45 CFR Section 164.526. Any denial of
amendment of Protected Information maintained by TriZetto or its agents or
subcontractors shall be the responsibility of Client.
h. ACCOUNTING RIGHTS. In response to a request from Client for an
accounting of disclosures of Protected Information, TriZetto and its agents or
subcontractors shall make available to Client the information required to
provide an accounting of disclosures to enable
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Client to fulfill its obligations under the Privacy Rule, including, but not
limited to, 45 CFR Section 164.528. In the event that the request for an
accounting is delivered directly to TriZetto or its agents or subcontractors,
TriZetto shall forward such request to Client in writing. It shall be Client's
responsibility to prepare and deliver any such accounting requested. TriZetto
shall not disclose any Protected Information except as set forth in Sections
2(b) of this Addendum.
i. GOVERNMENTAL ACCESS TO RECORDS. TriZetto shall make its internal
practices, books and records relating to the use and disclosure of Protected
Information available to the Secretary of the U.S. Department of Health and
Human Services (the "Secretary") for purposes of determining TriZetto's
compliance with the Privacy Rule.
3. OBLIGATIONS OF CLIENT. Client shall be responsible for using appropriate
safeguards to maintain and ensure the confidentiality, privacy and security of
PHI transmitted to TriZetto pursuant to this Agreement, in accordance with the
standards and requirements of the Privacy Rule, until such PHI is received by
TriZetto.
4. TERMINATION.
a. MATERIAL BREACH. A breach by TriZetto of any material provision of
this Addendum shall constitute a material breach of the Agreement and shall
provide grounds for termination of the Agreement by Client in accordance with
the terms of the Agreement.
b. REASONABLE STEPS TO CURE BREACH. If Client knows of a pattern of
activity or practice of TriZetto that constitutes a material breach or violation
of TriZetto's obligations under the provisions of this Addendum or another
arrangement and does not terminate this Agreement pursuant to Section 4(a), then
Client shall take reasonable steps to cure such breach or end such violation, as
applicable. If Client's efforts to cure such breach or end such violation are
unsuccessful, Client shall either: (i) terminate the Agreement, if feasible; or
(ii) if termination of the Agreement is not feasible, Client shall report
TriZetto's breach or violation to the Secretary.
c. EFFECT OF TERMINATION. Upon termination of this Agreement for any
reason, TriZetto shall return or destroy all Protected Information that TriZetto
or its agents or subcontractors still maintain in any form, and shall retain no
copies of such Protected Information. If return or destruction is not feasible,
TriZetto shall continue to extend the protections of this Addendum to such
Protected Information, and limit further use of such Protected Information to
those purposes that make the return or destruction of such Protected Information
infeasible.
5. AMENDMENT TO COMPLY WITH LAW. The parties acknowledge that state and
federal laws relating to data security and privacy are rapidly evolving and that
amendment of this Agreement may be required to provide for procedures to ensure
compliance with such developments. The parties specifically agree to take such
action as is necessary to implement the standards and requirements of HIPAA, the
Privacy Rule and other applicable laws relating to the security or
confidentiality of PHI. The parties understand and agree that Client must
receive satisfactory written assurance from TriZetto that TriZetto will
adequately safeguard all Protected Information. Upon the request of either
party, the other party agrees to promptly enter into
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negotiations concerning the terms of an amendment to this Addendum embodying
written assurances consistent with the standards and requirements of HIPAA, the
Privacy Rule or other applicable laws.
6. NO THIRD PARTY BENEFICIARIES. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer, upon any
person other than Client, TriZetto and their respective successors or assigns,
any rights, remedies, obligations or liabilities whatsoever.
7. EFFECT ON AGREEMENT. Except as specifically required to implement the
purposes of this Addendum, or to the extent inconsistent with this Addendum, all
other terms of the Agreement shall remain in force and effect.
8. INTERPRETATION. The provisions of this Addendum shall prevail over any
provisions in the Agreement that may conflict or appear inconsistent with any
provision in this Addendum. This Addendum and the Agreement shall be interpreted
as broadly as necessary to implement and comply with HIPAA and the Privacy Rule.
The parties agree that any ambiguity in this Addendum shall be resolved in favor
of a meaning that complies and is consistent with HIPAA and the Privacy Rule.
IN WITNESS WHEREOF, the parties hereto have duly executed this Addendum as
of the Addendum Effective Date.
CLIENT TRIZETTO
APS HEALTHCARE BETHESDA, INC. THE TRIZETTO GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
Print Name: Print Name:
-------------------------- --------------------------
Title: Senior Vice President and CFO Title: VP and General Counsel
------------------------------- -------------------------------
Date: Date: 3-15-02
-------------------------------- --------------------------------
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