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EXHIBIT 10.17
MASTER AGREEMENT
BETWEEN
MPOWER SOLUTIONS INC.
AND
PROVIDER SERVICES INCORPORATED
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MASTER AGREEMENT
THIS MASTER AGREEMENT (the "Agreement") effective Feb. 20 , 1998 (the "Effective
Date"), between MPOWER SOLUTIONS INC., a Delaware corporation with its principal
place of business located at 0000 Xxxxx Xxxxx, X.X., Xxxxx 000, Xxxxxxxxxxx, Xxx
Xxxxxx 00000 ("MPOWER") and Provider Services Incorporated, a Washington
corporation with its principal place of business located at 000 Xxxxx 000xx
Xxxxxx, Xxxxx 000, Xxxxxxx Xxx, Xxxxxxxxxx 00000 ("Customer") sets forth the
promises of the parties with respect to the products and services of MPOWER
which are described in this Agreement.
WHEREAS, MPOWER is in the business of providing automated managed health care
information software and services to businesses providing managed health care
and insurance services, and desires to provide such services and software to
Customer, subject to the terms hereof; and
WHEREAS, Customer is in the business of providing managed health care and
insurance services to its customers and desires to use the software and services
provided by MPOWER, subject to the terms hereof.
NOW THEREFORE, in consideration of the mutual promises made, the terms and
conditions hereunder described and other valuable consideration, the parties
agree as follows:
I. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
A. CPI
"CPI" shall mean the Consumer Price Index for All Urban Consumers, U.S.
City Average, for All Items (1982-1984=100), as published by the Bureau
of Labor Statistics of the U.S. Department of Labor. If the Bureau of
Labor Statistics ceases to publish or substantially changes the content,
calculation or format of the CPI, the parties will substitute another
comparable index published by a mutually agreeable source; provided,
however, that if the change is merely to redefine the base period to
some other period, the parties will continue to use the affected index
but will convert either the current or prior level of such index to the
same basis as the other by using an appropriate conversion factor.
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B. Documentation
"Documentation" shall mean the standard operational instructions,
manuals and related material regarding MPOWER Products (as defined
below) which MPOWER will deliver to Customer as set out in the
Attachments to this Agreement.
C. "MPOWER Products" shall mean those products which MPOWER will deliver to
Customer as set out in the Attachments to this Agreement.
D. Release
"Release" shall mean a set of computer programs and or associated
Documentation regarding an MPOWER Product which MPOWER makes available
for use by its customers who are covered under warranty or a maintenance
agreement regarding such MPOWER Product. MPOWER reserves the right to
charge an additional license fee for any optional modules which MPOWER
reasonably determines contains significant additional functionality.
Such significant additional functionality shall mean (a) new modules or
subsystems that are not a mere enhancement nor extension of existing
functionality, which enhancements and extensions are covered under
maintenance agreements, or (b) different hardware, operating system
platforms or databases. The major modules and/or functionality initially
covered under a given MPOWER Product are listed in an Exhibit to the
applicable Attachment to this Agreement.
E. Site(s)
"Site(s)" shall mean the physical location(s) at which Customer conducts
its business.
F. Live Production Environment
A live production environment ("Live Production Environment") is defined
whereby MPOWER(TM) is managing on-line the enrollment and processing of
subscribers or members, and, at a minimum, one line of business.
G. Licensed Plan(s)
A "Licensed Plan" ("Licensed Plans") shall mean a health benefit plan
which is either enabled by or regulated by the State(s) in which
Customer or a Plan Sponsor is operating, or which is enabled by Federal
legislation or regulations and is regulated by a Federal agency or under
the terms of the enabling Federal legislation, whether or not the health
benefit plan is also regulated by the State(s) in which the Customer or
Plan Sponsor is operating.
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H. Life (Lives)
"Life" ("Lives") means an individual who is currently enrolled with a
Licensed Plan entitled to receive Covered Services or who has been
enrolled in such Licensed Plan at some time during the then-previous
twelve (12) months, whether or not such covered member has presented a
valid claim to such Licensed Plan ("Enrollee").
I. Covered Services
"Covered Services" shall mean those healthcare benefits that an Enrollee
is entitled to receive from a Participating Provider pursuant to the
applicable Enrollee Group Benefits Agreement.
J. Participating Provider
"Participating Provider" means a Provider that has entered into an
Agreement with Customer or Customer's customer to provide Covered
Services to Enrollees.
K. Group Benefits Agreement
"Group Benefits Agreement" means the document distributed by-Licensed
Plan to its Enrollees describing all Covered Services in the Licensed
Plan.
L. Work Order
"Work Order" shall mean a document that is separately executed by both
parties, that (a) describes a scope of services that Customer wishes
MPOWER to perform for Customer, (b) authorizes MPOWER to perform
services for Customer, (c) obligates MPOWER to perform such services and
(d) obligates Customer to pay for such services, all under the terms of
that separate document, and Which document, when executed, is
incorporated and made part of this Agreement.
M. Derivative Work
"Derivative Work" shall mean any computer program, application,
interface or related documentation that is based on an MPOWER Product,
or any component part thereof, that is used or intended to be used as a
commercial software product or as a competitive product to MPOWER.
N. Source Code
"Source Code" shall mean the commonly accepted source code of a computer
program describing in a formal language certain logic functions, from
which
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source code a computer program is compiled or interpreted to perform
certain functions in a computer.
O. Object Code
Object Code" shall mean the commonly accepted object code of a computer
program, which is that version of the computer program logic that has
been translated from the Source Code into instructions that can be run
directly within a computer hi a predefined operating system environment.
P. Plan Sponsor
"Plan Sponsor" shall mean the health plan, organization or legal person
that offers a Licensed Plan either directly or through another
organization or legal entity to Enrollees.
II. CONFIDENTIAL AND PROPRIETARY INFORMATION
MPOWER, on behalf of itself, its employees, agents, vendors, successors,
and assigns, agrees to keep in confidence all data relating to
Customer's business to which MPOWER may have access as a result of
performing its obligations under this Agreement and the terms of this
Agreement.
MPOWER asserts and Customer acknowledges that all MPOWER Products, the
Documentation and the Releases, and all information, data, designs,
MPOWER Product structural definitions of any system setups, benefit
plans; provider contracts, fee groups, ad hoc reports, letter formats,
sample letter content, business process workflow diagrams, and any other
structural templates and other similar information provided by,
developed or reviewed by or in conjunction with MPOWER, and used by
MPOWER in assisting Customer in the installation, implementation or
ongoing use of the MPOWER Product, and methodologies related thereto
("Proprietary Information") are the exclusive property of MPOWER or
MPOWER's suppliers and that the Proprietary Information is confidential,
has tangible value and includes trade secret information of MPOWER
and/or MPOWER's suppliers. MPOWER and/or MPOWER's suppliers shall retain
all rights to the Proprietary Information, including all copyright
rights therein, except to the extent to which MPOWER grants rights to
Customer to use the Proprietary Information pursuant to this Agreement.
Customer may not create Derivative Works based upon the Proprietary
Information in whole or in part. All improvements, enhancements and
modifications to the Proprietary Information shall be owned exclusively
by MPOWER or MPOWER's suppliers. Without MPOWER's prior written consent,
Customer shall not decompile, disassemble or reverse engineer any
Proprietary Information.
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Customer agrees not to sell, lease, assign or otherwise transfer,
disclose or make available, in whole or in part, any portion of the
Proprietary Information or the terms of this Agreement and Customer
shall prevent disclosure of any part of the Proprietary Information or
the terms of this Agreement to any third party for any reason (except
for disclosure or access to Customer's employees, contracted entities,
or Customer's customers which is necessary for Customer to be able to
use the Proprietary Information in accordance with this Agreement).
Customer agrees to notify those employees, contracted entities or
customers to whom Customer gives access to the Proprietary Information
of the restrictions contained in this Section II and to ensure their
compliance with such restrictions.
The duties and obligations which are included in this Section II shall
survive any termination of this Agreement and/or Customer's right and
license to use any MPOWER Product.
If Customer desires to disclose any Proprietary Information to any third
party or to permit any third party to have access to any Proprietary
Information, such third parry must have a legitimate need to have access
to such Proprietary Information (consistent with the purpose[s] for
which such disclosure was made to Customer) and, prior to any such
disclosure or access, Customer and such third party must enter into a
nondisclosure agreement with MPOWER in substantially the form set out in
the Addendum which is attached to this Master Agreement and made a part
hereof. In no event shall Customer disclose any Proprietary Information
to any competitor of MPOWER.
Notwithstanding the above, Customer and MPOWER acknowledge that the
MPOWER Product structural definitions of any system setups, benefit
plan, provider contracts, fee groups, ad hoc. reports, letter formats,
sample letter content, workflow diagram of Customer business processes,
and any other structural templates, that have been provided, developed,
reviewed or verified in whole or in part by or with the support of
MPOWER, its employees or agents, do not constitute Proprietary
Information of Customer within the meaning of this Section II; provided.
however, that specific provider and benefit contract rates, the names,
demographic information, contractual relationships, and medical
information of any group, member, provider or other entity with a
contractual relationship with Customer shall be considered Proprietary
Information of Customer or of such other entity contracted with
Customer, unless such information is available through public sources or
through publicly available filings with any insurance or health care
regulatory agency or with any industry accreditation or reporting body.
Further notwithstanding the above, Customer and MPOWER acknowledge that
Customer may create and distribute reports and data from its licensed
use of the MPOWER Products in the normal course of its business to its
customers, to
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health care providers, Enrollees, employers or Plan Sponsors, government
agencies and others with a legitimate purpose in the conduct of the
Customer's business and the data processed by the licensed MPOWER
Products, and that such reports and distributed dam do not constitute
Derivative Works, unless they are used to create commercial software
products for reuse and/or license to other parties.
III. COPYING
Customer, for each licensed instance of the MPOWER Product being used in
a Live Production Environment, may make one (1) copy of each MPOWER
Product in machine-readable form in a test region for the purpose of
testing new releases or fixes and also one (1) copy of each MPOWER
Product in machine-readable form for backup purposes only. Customer
agrees that upon copying any MPOWER Product, Customer shall place a
label on the outside of each copy medium showing the program name,
version number and any/all copyright and proprietary notices in the same
form as contained on the original copy.
In addition, Customer may make automated backup copies of its production
and testing regions for operational backup purposes without applying the
above labels, provided that such operational backup copies are
maintained with the acceptable industry standard security measures and
not made available to outside parties except for the case of disaster
recovery purposes, in which case the disaster recovery agent will be
bound to all the confidentiality and Proprietary Information
restrictions to which Customer is bound hereunder, and further that no
such disaster recovery agent may be a competitor of MPOWER.
IV. SOURCE CODE ESCROW
At the request of Customer, MPOWER and Customer will enter into an
agreement with MPOWER's escrow agent ("Custodian") for the depositing of
the MPOWER Products' Source Code ("Source Code Copy"). [The current
Custodian is NORWEST Bank.] MPOWER shall notify Customer at least ten
(10) business days prior to a change in the entity identified as the
Custodian. Subject to Customer's payment of all fees due under this
Agreement in accordance with the applicable payment terms, the Source
Code Copy so deposited will be maintained during the period Customer
shall use and purchase, and MPOWER shall provide, software maintenance
services for the particular MPOWER Product. The Source Code Copy will be
updated by MPOWER upon each new Release of the particular MPOWER
Product.
The parties agree that the Source Code Copy shall be held by the
Custodian for delivery to Customer under the conditions that this
Agreement is terminated as a result of a material breach of the terms of
this Agreement by MPOWER or MPOWER files for bankruptcy under Chapter 7,
and its business is not continued
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by virtue of a merger, consolidation, the sale of all or substantially
all of its assets, or through some other transaction by another
corporation or entity, and the Custodian of the Source Code has received
from Customer or from MPOWER, or from a court of competent jurisdiction:
(i) written notification of any such event or condition; (ii) demand
that a copy of the Source Code Copy be mailed to Customer; (iii) written
undertaking from Customer, which shall be legally binding, that the copy
of the Source Code Copy to be supplied to Customer will be used only for
Customer's maintenance of the MPOWER Products at a specified location
and will be promptly returned to the Custodian at the expiration of the
period during which Customer, under its agreement with MPOWER, has the
right to use the MPOWER Products, and that the copy of the Source Code
and the information and material contained therein shall be held
confidentially by Customer, its employees and agents who are involved in
the use and technical maintenance of the MPOWER Products, and shall not,
under any circumstances, be disclosed or made available to any other
person or entity; and (iv) specific instructions from Customer for the
delivery of a copy of the Source Code Copy, with a copy of such
instructions to MPOWER. Customer will pay the costs and expenses of the
Custodian in carrying out the requirements of this Section.
In addition, if Customer uses the MPOWER Product Source Code, it will
only be for the purposes for which the Object Code is licensed under
this Agreement and not for re-license, reverse engineering or to create
a derivative product. The Confidential and Proprietary Information
provisions of Section II apply also to the Source Code.
V. TERMINATION
Should Customer fail to pay any sum due and payable under this
Agreement, MPOWER shall notify Customer in writing of such failure to
pay. Customer shall then have thirty (30) days from the delivery of
MPOWER's written notice to pay such amount(s). The foregoing sentence in
no way relieves Customer from its obligation to pay any and all late
chargers which may become due as set forth in Section VI below. If
payment is not made within such thirty (30) days, MPOWER shall have the
immediate right to discontinue any and all services under this
Agreement. Furthermore, if payment is not made within Sixty (60) days
from the delivery of MPOWER's written notice, MPOWER shall have the
immediate right to terminate this Agreement.
Should either party commit a material breach of its obligations under
this Agreement, other than failing to pay money, the non-breaching party
may notify the breaching parry in writing, setting out the breach, and
the breaching party shall have sixty (60) days to remedy such breach. If
the breaching party fails to remedy the breach during this sixty
(60)-day period, or, with respect to those breaches which cannot
reasonably be remedied within sixty (60) days, if the breaching party
fails to proceed promptly after being given such notice to
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commence remedying the breach and thereafter to proceed to remedy the
same, the other party shall have the fight to terminate this Agreement,
provided such party gives the breaching party thirty (30) days' prior
written notice to that effect. Notwithstanding the foregoing, either
party shall have the fight to immediately terminate this Agreement upon
any breach by the other of its obligations under Section II above.
Termination of this Agreement shall be without prejudice to all accrued
fights and remedies either party may have and shall not affect any
continuing rights and obligations of the parties under this Agreement.
Upon the termination of this Agreement and/or any Attachment to this
Agreement, Customer shall return to MPOWER all Proprietary Information
regarding the MPOWER Product whose license is being terminated, within
thirty (30) days after such termination and MPOWER shall return to
Customer any proprietary information obtained in the performance of this
Agreement within thirty (30) days after such termination.
VI. INVOICES AND CHARGES
Unless a specific payment date is set out in an Attachment to this
Agreement, Customer agrees to remit all payments under this Agreement so
that MPOWER shall receive such payments no later than thirty (30) days
from the date of MPOWER's invoice. Customer also agrees that MPOWER
shall have the right to charge interest charges of one and one-half
percent (1.5%) of the outstanding balance per month, or the highest
amount allowed by law, whichever is less, on any and all late payments,
and Customer agrees to pay such charges. All prices mentioned in this
Agreement are in U.S. Dollars. The parties agree that the prices set out
in this Agreement do not include any sales, use or gross receipts taxes,
any duties, any similar assessments, or any other tax imposed on any
party by virtue of this Agreement, all of which, excluding only taxes
based on MPOWER's income, shall be the sole liability of, and shall be
paid solely by, Customer. Exhibit A to Attachment 1 of this Agreement
provides a best efforts explanation of the currently known and
applicable state and local taxes, duties and any similar assessments
that are expected to apply to currently anticipated products and
services under the Attachment 1 .to this Agreement.
VII. FORCE MAJEURE
Neither party shall be liable to the other for failing to fulfill any
obligation under this Agreement if such failure is caused by an event
which is beyond such party's reasonable control and which is not caused
by such party's fault or negligence, including without limitation, acts
of God, acts of war, fires, strikes, lightning, floods, epidemics, civil
unrest, power shortages, equipment failure, delays in
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transportation, or either party's inability to obtain necessary labor,
material or components due to muses beyond such party's reasonable
control.
VIII. LIMITATION OF LIABILITY
CUSTOMER AGREES THAT MPOWER SHALL HAVE NO LIABILITY TO CUSTOMER FOR
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF MPOWER IS ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR LOSS OF USE OR COMMERCIAL
LOSS (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND/OR PROFITS),
HOWEVER OCCASIONED AND WHATEVER THE FORM OF ACTION, FOR ACTUAL OR
IMPUTED NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHERWISE.
FURTHERMORE, CUSTOMER AGREES THAT IN NO EVENT SHALL MPOWER BE LIABLE FOR
DIRECT DAMAGES IN EXCESS OF:
A. ALL LICENSE FEES CUSTOMER SHALL HAVE PAID MPOWER FOR THE PARTICULAR
MPOWER PRODUCT WHICH IS THE SUBJECT OF CUSTOMER'S CLAIM, SHOULD
CUSTOMER RAISE A CLAIM REGARDING SUCH MPOWER PRODUCT DURING THE
INITIAL TWELVE (12) MONTHS OF THE SUBJECT ATTACHMENT; AND
B. SEVENTY-FIVE PERCENT (75%) OF ALL LICENSE FEES CUSTOMER SHALL HAVE
PAID MPOWER FOR THE PARTICULAR MPOWER PRODUCT WHICH IS THE SUBJECT
OF CUSTOMER'S CLAIM, SHOULD CUSTOMER RAISE A CLAIM REGARDING SUCH
MPOWER PRODUCT DURING THE SECOND TWELVE (12) MONTHS OF THE SUBJECT
ATTACHMENT; AND
C. FIFTY PERCENT (50%) OF ALL LICENSE FEES CUSTOMER SHALL HAVE PAID
MPOWER FOR THE PARTICULAR MPOWER PRODUCT WHICH IS THE SUBJECT OF
CUSTOMER'S CLAIM, SHOULD CUSTOMER RAISE A CLAIM REGARDING SUCH MPOWER
PRODUCT SUBSEQUENT TO THE INITIAL TWENTY-FOUR (24) MONTHS OF THE
SUBJECT ATTACHMENT.
The parties agree that no action, regardless of form, which may arise
out of the transactions under this Agreement may be brought by either
party more than one (1) year after the cause of action is known, or
ought reasonably to have been known, to the party bringing the action;
provided, however, that this one (1)-year limitation on actions shall
not apply to any claim of MPOWER based upon Customer's failure to pay
any amount owed under this Agreement.
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IX INFRINGEMENT
MPOWER agrees to defend, indemnify and hold Customer harmless against
any, and all claims that any MPOWER Product infringes a U.S. Letter
Patent, copyright, trade secret or the proprietary rights of others,
provided that MPOWER shall have received timely written notice of any
such claim and that MPOWER shall have sole control of the defense of
such claim and all negotiations for the settlement or compromise of such
claim.
As of the date first written above, MPOWER warrants that it is not aware
of any infringement, and has not been notified by any third party that
it may be infringing, any U.S. Letter Patent, copyright, trade secret or
the proprietary rights of others.
If use of an MPOWER Product by Customer is enjoined, or becomes, or, in
MPOWER's sole opinion, is likely to become, the subject of a claim of
infringement, MPOWER will, at its option and expense, either:
1. procure for Customer the right to continue using the MPOWER Product
in question; or
2. replace or modify the same so that it is functionally equivalent
[i.e. the MPOWER Product will achieve the same or similar business
logic result] (or contains more functionality) and non-infringing.
Notwithstanding the foregoing, if MPOWER determines that neither of the
alternatives set forth above is reasonably available, MPOWER will refund
to Customer any unamortized portion of the infringing MPOWER Product's
license fee which has then been paid by Customer. Amortization shall be
based upon a seven (7)-year life of the infringing MPOWER Product,
beginning on the date the infringing MPOWER Product was licensed by
Customer from MPOWER. Should such refund occur, Customer agrees to
return the infringing MPOWER Product to MPOWER.
Should any refund described above occur, the license for the infringing
MPOWER Product shall be terminated and MPOWER, its affiliates,
subsidiaries, assigns and successor corporations shall be released from
any and all liability arising from any and all claims, losses,
liabilities, damages, costs or deficiencies which are then-existing or
which may arise in the future with regard to such infringing MPOWER
Product(s) for which MPOWER has refunded fees pursuant to this Section
IX.
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Notwithstanding anything contained herein to the contrary, MPOWER shall
have no liability for any loss, cost, claim or expense caused by:
1. alteration of any MPOWER Product provided hereunder by any party
other than MPOWER;
2. any loss, expense or liability resulting from any infringement which
is a consequence of MPOWER's compliance with designs or code
submitted to MPOWER by Customer;
3. the use of any MPOWER Product in combination with products not
licensed to customer by MPOWER;
4. continuation of the allegedly infringing activity by Customer after
Customer is notified in writing thereof and after the conclusion of a
reasonable grace period afforded Customer in the notice to migrate
from the infringing activity to an alternate solution; or
5. Customer's use of an MPOWER Product other than in compliance with the
terms and conditions of this Agreement.
The foregoing remedy set forth in this Section IX represents the
exclusive remedy of Customer and MPOWER's sole liability with regard to
any claim that an MPOWER Product infringes the rights of others.
X. RESOLUTION OF DISPUTES
If any dispute shall arise between the parties under this Agreement, the
parties shall make every effort to amicably resolve the dispute pursuant
to this Section X. The following procedures shall be adhered to in order
to expeditiously resolve any disputes arising during the term of this
Agreement.
The party invoking the procedures of this Section X shall provide
written notice to the other party and within five (5) business days
following the other party's receipt of such notice, the parties'
implementation team leaders shall attempt to resolve such dispute. If
the parties' team leaders do not resolve such dispute within seven (7)
business days following the date of the non-invoking party's receipt of
notice hereunder, either party hereto shall have the right to refer such
dispute for "Executive Review" as provided below.
"Executive Review" shall refer to the dispute resolution process which
shall be conducted as follows: within fifteen (15) days of any party's
request for Executive Review, each such party shall have designated an
executive-level employee of such party and such designated executive
shall have met, either in
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person or via telephone, with the other party's executive-level designee
to attempt to resolve such dispute. If said executive-level designees
are unable to resolve the dispute within ten (10) business days of their
first telephone or in-person meeting pursuant to this paragraph, either
party may request that the dispute be referred to a second level of
Executive Review. Within ten (10) days of any party's request for such
second level of Executive Review, the Chief Executive Officers of both
parties hereto shall meet, in person or via telephone, to attempt to
settle such dispute. Notwithstanding anything in this Agreement to the
contrary, should either party feel the dispute cannot be amicably
resolved after having negotiated in good faith to resolve such dispute
pursuant to the foregoing provisions of this Section, such party shall
have the right to terminate such negotiations. Nothing in this Section
shall require either party to engage in negotiations to resolve a
dispute for a period of more than forty-five (45) days.
If the matter has not been resolved pursuant to the aforesaid Executive
Review procedure within forty-five (45) days of the commencement of such
procedure (which period may be extended by mutual agreement), the
controversy shall be settled by arbitration in accordance with the
American Arbitration Association. (the "Association) under the
Commercial Arbitration Rules of the Association there in effect, by an
arbitrator knowledgeable in the computer area. The arbitrator shall be
selected by mutual agreement of MPOWER and Customer. If MPOWER and
Customer can not agree upon an arbitrator, an arbitrator shall be
appointed by the Court with jurisdiction over the dispute. The
arbitration shall be governed by the United States Arbitration Act, 9
U.S.C. Sec. 1-16, and judgment upon the award by the arbitrator may be
entered by any court having jurisdiction thereof. The place of
arbitration shall be in the jurisdiction in which the principal place of
business of the party not filing arbitration is located (i.e.,
Albuquerque, New Mexico for MPOWER and King County, Washington for
Customer). Each party shall pay its own costs and expenses.
XI. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective successors and (to the extent specified
in any assignments) assigns. Customer shall not assign or otherwise
transfer this Agreement without the prior written consent of MPOWER.
Customer, however, may assign this Agreement to any subsidiary of
Customer in which Customer owns an equity position of 51% or more, by
giving thirty (30) days notice to MPOWER.
XII OMNIBUS RECONCILIATION ACT COMPLIANCE
As applicable under the Omnibus Reconciliation Act of 1980, until the
expiration of four (4) years after the furnishing of services under this
Agreement, MPOWER
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shall, upon receipt of written request, and if then required to make
such information available under the then. existing law, make available
to the Secretary of the United States Department of Health and Human
Services ("Secretary"), the Comptroller General, or any of their duly
authorized representatives, this Agreement, books, documents, and/or
records of MPOWER that are necessary to certify the nature and extent of
products and services delivered under this Agreement and costs
associated therewith. Furthermore, if MPOWER carries out any of the
duties of this Agreement through a subcontract with a value or cost of
Ten Thousand Dollars ($10,000.00) or more over a twelve (12)-month
period, such subcontract will contain a clause to the effect that, until
the expiration of four (4) years after the furnishing of such services
under such subcontract, the subcontractor shall, upon receipt of written
request and if then required to make such information available under
the then-existing law, make available to the Secretary, Comptroller
General, or any of their duly authorized representatives, the
subcontract, books, documents, and/or records of such subcontractor that
are necessary to verify the nature and extent of such costs.
XIII. RELATIONSHIP MANAGEMENT
A. Meetings. MPOWER and Customer agree to regularly discuss business and
relationship strategies affecting both parties. MPOWER and Customer
further agree to have regularly scheduled communications to summarize
current activities, performance results, error corrections and work
efforts, as well as the future planned activities.
B. Release Discussions. MPOWER agrees to discuss with Customer its
planned future Releases and share with Customer at least sixty (60)
to ninety (90) days in advance of a projected future Release its then
current Release priorities, release notes and expectations regarding
new or expanded functionality to be included in such future Release.
C. Liaison. During the term of this Agreement, each party will provide a
liaison who (i) will have overall management responsibility for the
performance by the party hereunder, (ii) will have primary
operational responsibility, and (iii) will serve as the party's
primary liaison with the other party with respect to performance
under this Agreement.
XIV. MISCELLANEOUS
A. Invalidity. If any of the provisions, or portions thereof, of this
Agreement are deemed to be invalid under any applicable statute or
rule of law, they are to that extent to be deemed omitted, and the
parties agree to negotiate in good faith to bring such provisions, or
portions thereof, into compliance.
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B. Headings. The headings of Sections in this Agreement and in the
Attachments are included for convenience only and shall not be
considered by either party in construing the meaning of this
Agreement or any Attachment.
C. Notices. Any notice given under this Agreement shall be in writing
and shall be deemed to be delivered either:
i. when it is delivered in person; or
ii. five (5) days after it is deposited in the United States Postal
Services certified mail with return receipt requested, postage
prepaid.
All notices remitted to MPOWER shall be remitted to the attention of:
President and Chief Executive Officer. All notices remitted to Customer
shall be remitted to the attention of: President and Chief Executive
Officer.
D. Waiver. Neither party shall be deemed to have waived any term or
provision of this Agreement, nor consented to any breach of this
Agreement, unless such party shall waive such term or provision, or
shall consent to such breach, in writing. Any such written waiver
and/or consent must be signed by the party which is waiving such term
or provision or is consenting to a breach. Either party's consenting
to a waiver, or a breach, by the other, whether express or implied,
shall not constitute consent or waiver of any other different or
subsequent breach by the other.
E. Governing Law. This Agreement and all Attachments hereto shall be
governed by and construed according to the laws of the State of New
Mexico.
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The parties have each read this Agreement and agree to be bound by all of its
provisions, and further agree that it constitutes the complete and exclusive
statement of the agreement between then, and supersedes any and all prior
agreements and understandings between them pertaining to the subject matter of
this Agreement and takes precedence over the provisions of any purchase orders
submitted to MPOWER by Customer. This Agreement may be amended only in writing
signed by both of the parties.
Provider Services, Inc. MPOWER SOLUTIONS INC.
-------------------------------- ("MPOWER")
/s/ Xxxxxx X. Xxxx /s/ Xxxx X. Xxxxxxx
-------------------------------- --------------------------------
/s/ Xxxxxx X. Xxxx /s/ Xxxx X. Xxxxxxx
-------------------------------- --------------------------------
NAME PRINTED NAME PRINTED
President Senior Vice President
-------------------------------- --------------------------------
TITLE TITLE
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17
ADDENDUM TO MASTER AGREEMENT
NONDISCLOSURE AGREEMENT FOR PROPRIETARY INFORMATION
In consideration of Provider Services Incorporated, located at 000 Xxxxx 000xx
Xxxxxx, Xxxxx 000, Xxxxxxx Xxx, Xxxxxxxxxx 00000, ("Customer") disclosing
certain confidential and proprietary information relating to the MPOWER(TM)
Managed Care Information System (and/or other MPOWER Product involved) and
information, data, designs, documentation and methodologies related thereto
(collectively, "Proprietary Information") to ___________________________,
located at ___________________, ("Third Party") for the sole purpose of allowing
Third Party to facilitate Customer's use of the Proprietary Information, Third
Party agrees to the following:
Third Party acknowledges that the Proprietary Information is the exclusive
property of MPOWER SOLUTIONS INC., a Delaware corporation, located at 0000
Xxxxx Xxxxx Xxxxx XX, Xxxxxxxxxxx, Xxx Xxxxxx ("MPOWER") and that such
Proprietary Information is confidential, has tangible value and includes trade
secret information of MPOWER. MPOWER shall retain all fights to the Proprietary
Information, including all copyright rights therein, except to the extent to
which Third Party is allowed to use the Proprietary Information pursuant to this
Nondisclosure Agreement. All improvements, enhancements and modifications to the
Proprietary Information shall be owned exclusively by MPOWER.
Third Party agrees not to sell, lease, assign or otherwise transfer, disclose or
make available, in whole or in part, any portion of the Proprietary Information
and Third Party shall prevent disclosure of any part of the Proprietary
Information to any other third party for any reason (except for disclosure or
access to Third Party's and Customer's employees which is necessary for Third
Party to be able to use the Proprietary Information in accordance with this
Nondisclosure Agreement). Third Party agrees to notify its employees to whom
Third Party gives access to the Proprietary Information of the restrictions
contained in this Nondisclosure Agreement and to ensure their compliance with
such restrictions.
Third Party agrees to return all Proprietary Information promptly to Customer or
MPOWER upon the earlier of (i) MPOWER's or Customer's request or (ii) completion
of Third Party's assignment for Customer. Third Party agrees that it shall not
use, and it shall not permit the use of, the Proprietary Information for any
purpose other than as expressly authorized in this Nondisclosure Agreement.
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18
This Nondisclosure Agreement shall be governed by the laws of the Stare of
Washington. If any provision of this Nondisclosure Agreement is invalid under
any applicable statute, it is to be deemed omitted. If any action is instituted
to enforce or interpret the terms of this Nondisclosure Agreement, MPOWER shall
be entitled to reasonable attorney's fees and expenses in addition to any other
entitled relief. This Nondisclosure Agreement shall be effective as of the date
the Proprietary Information is first disclosed to Third Party.
---------------------------------
("Third Party")
---------------------------------
Signature of Authorized Signatory
---------------------------------
Name Printed
---------------------------------
Title
---------------------------------
Date
In consideration of MPOWER's approval of the disclosure of Proprietary
Information to Third Party, Customer agrees to use its best efforts to ensure
the adherence by Third Party of all the terms of this Nondisclosure Agreement,
and shall support MPOWER in pursuing its remedies in the event of any breach by
Third Party of this Nondisclosure Agreement.
---------------------------------
Customer
---------------------------------
Signature of Authorized Signatory
---------------------------------
Name Printed
---------------------------------
Title
---------------------------------
Date
Page 18 of 40
19
ATTACHMENT 1
I. DEFINITIONS
Except as set forth in this Section I of this Attachment, all
capitalized terms used in this Attachment shall have the same meaning as
set forth in the Master Agreement.
A. "Master Agreement" shall mean the agreement to which this Attachment 1 is
attached.
B. Agreement
"Agreement" shall mean the Master Agreement and all Addenda, Exhibits
and Attachments thereto.
C. MPOWER(TM)
"MPOWER(TM)" shall mean the soft, rare product marketed by MPOWER which
is being licensed by Customer under this Attachment and the Master
Agreement. The high level modules that are included in MPOWER(TM) as of
the date of this Attachment are listed in Exhibit F hereto.
II. GRANT OF LICENSE
In consideration of Customer's paying the Initial License Fee (as
hereinafter defined) and, when due, the Maintenance Fee, in accordance
with Section VIII of this Attachment, MPOWER grants Customer a
non-exclusive, nontransferable (except as allowed in Section XI of the
Master Agreement) and annually self-renewing license to operate a
single, Object Code instance version of MPOWER(TM) on a Windows NT
platform for a Live Production Environment for up to an aggregate of
[*] Lives under the Licensed Plans ("Initial License").
Customer may extend the license for such single, Object Code instance of
MPOWER(TM) ("License Extension(s)") for additional Lives by paying
MPOWER the fees for additional Lives defined in Section VIII below, and
abiding by the terms therein stipulated, and by providing the number of
such additional Lives in writing to MPOWER prior to Customer's first use
of MPOWER(TM) on behalf of such additional Lives.
Customer may copy MPOWER(TM) and/or the Documentation as allowed under
Section III of the Master Agreement. Furthermore, Customer may copy the
* Confidential Treatment Requested
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20
Documentation in order to supply a copy of the Documentation to each end
user of MPOWER at each Site. Customer agrees that any and all copies of
MPOWER and/or the Documentation made by Customer shall include any/all
copyright and proprietary notices in the same form as contained on the
original copy. Except as allowed in Section III of the Master Agreement
and this paragraph, Customer may not otherwise make copies of
MPOWER(TM)" or the Documentation or any part thereof without the prior
written consent of MPOWER. Customer agrees there shall be no other use
of MPOWER(TM) or the Documentation without the prior written consent of
MPOWER. except as allowed in Section II of the Master Agreement.
In order to ensure that MPOWER(TM) is being used in conformity with the
license being granted under this Attachment, MPOWER Shall have the right
to conduct audits (either on-site or remotely, at MPOWER's option) of
Customer's use of MPOWER(TM) at periodic intervals. MPOWER agrees that
any such on-site audit shall be scheduled in advance and at a time so as
not to unduly interfere with Customer's business operations. Customer
agrees that any audit revealing unauthorized use of MPOWER(TM) will
result in Customer's being liable for the payment of additional fees to
MPOWER equal to MPOWER's fees as stated in Section VIII A of this
Attachment.
III. DELIVERY AND MEDIA-
Promptly after the full execution of this Attachment, MPOWER will
deliver to Customer:
A. one (1) copy of the then-current Release of MPOWER(TM) in Object Code
form; and
B. one (1) set of the then-current version of the Documentation in
electronic form.
IV. WARRANTY
MPOWER represents and warrants to Customer that MPOWER(TM) will function
in accordance with the Documentation in all ways which materially affect
the performance of MPOWER(TM). This warranty is contingent upon
Customer's using: 1) certain prerequisite hardware and software, a list
of which has been provided to Customer by MPOWER (Attachment I) for the
initial NT Release; and 2) the most recent Release of MPOWER(TM),
provided such Release has been available for Customer's use for thirty
(30) days, or more. If Customer wishes to use certain third party
software that is similar to but not the MPOWER defined "prerequisite
software" to perform the functions required by such "prerequisite
software", MPOWER and Customer agree to negotiate in good faith for
MPOWER to certify
Page 20 of 40
21
whether such third party software will qualify as "prerequisite
software" which is a contingency to the warranties herein.
THE WARRANTY SET FORTH IN THIS SECTION IV CONSTITUTES THE ONLY WARRANTY
PROVIDED BY MPOWER REGARDING MPOWER(TM) AND SUCH WARRANTY IS IN LIEU OF
ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED.
MPOWER HEREBY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
V. SOFTWARE MAINTENANCE SERVICES
In consideration of payment of the annual Maintenance Fee(s) set forth
in Section VIII B of this Attachment, Customer agrees to purchase, and
MPOWER agrees to provide Customer on an annually renewable basis with
software maintenance services for MPOWER(TM) as follows (provided
Customer allows MPOWER, at MPOWER's request, dial-up access to
MPOWER(TM)):
A. any and all Releases regarding MPOWER(TM) issued by MPOWER;
B. any and all updates to the Documentation issued by MPOWER; and
C. remote diagnostic support (including dial-up capabilities) regarding
MPOWER(TM) to include error analysis and, where possible, correction
services, twenty-four (24) hours per day, seven (7) days per week.
Any on-site assistance which Customer may request and which is
provided by MPOWER, which, in MPOWER's reasonable opinion, is not
necessary to determine the nature and resolution of any problems
Customer may have with MPOWER(TM) shall be provided by MPOWER at its
then-current rates. If Customer notifies MPOWER that it suspects a
material error in the program logic of MPOWER(TM) or in the
Documentation, MPOWER shall make all reasonable efforts to confirm
the existence of the error and correct it. If the parties mutually
determine that no such error exists, Customer agrees to pay MPOWER
for its services at MPOWER's hourly rates then in effect and to
reimburse MPOWER for any and all reasonable travel and living
expenses incurred by MPOWER in rendering such services. MPOWER will
use its Severity Designations in effect from time to time to provide
remote diagnostic support. The current Severity Designations and
attendant response times are given in Exhibit G to this Attachment.
For purposes of this subparagraph, MPOWER agrees to set the hourly
rate at $125.00 per hour for the first twelve months from the date
first written above, with increases for the subsequent two years not
to exceed the CPI. Prior to the end of this three year period,
CUSTOMER and
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22
MPOWER shall negotiate in good faith the hourly rate to apply to
additional years.
D. Notwithstanding the foregoing, should Customer be utilizing any
Release of MPOWER(TM) other than the then-most-recent Release, or the
Release prior to the then-most-current Release, provided such Release
has been available for Customer's use for a period of six (6) months
or longer, MPOWER reserves the right, at its sole option, to
terminate its obligations to provide maintenance services under this
Section V at any time upon giving thirty (30) days' prior written
notice to Customer. If such a condition exists, MPOWER and Customer
agree to negotiate in good faith to define reasonable terms,
conditions and fees for MPOWER to provide Customer with maintenance
services for such then non-current Release.
MPOWER's providing Customer with maintenance services as described in
this Section V shall automatically continue, on an annual basis, unless
either party shall give written notice to the other that it desires not
to renew such maintenance services. The parties agree that such written
notice shall be remitted for receipt by the other no less than ninety
(90) days prior to the end of the then-current annual maintenance
period.
Attached as Exhibit H hereto is a list of requested enhancements to
MPOWER(TM) made by Customer. MPOWER agrees to add the items in this list
to the queue of enhancements for inclusion in future Releases, which
requested enhancements will be handled by MPOWER according to MPOWER's
development methodology and protocols and the terms of this Agreement
regarding future Releases. Items numbered 4 (UB-92 Requirements) and 6
(Referral/Authorizations) are considered the highest priority by
Customer and MPOWER states that these items have been added to the
priority list for the next Release, which is currently scheduled for the
end of the second quarter of 1998. Item number 7 (Original Date Stamp on
Claim) is recognized to be a critical enhancement for the processing of
Medicare claims and MPOWER agrees to add it to the priority list for
either the next Release or the second Release subsequent to the
effective date of this Agreement. All other enhancements indicated in
Exhibit H which were promised in the MPOWER response to the CUSTOMER
Request for Information or which relate to functionality that was
indicated within the MPOWER response to the CUSTOMER Request for
Information which require enhancement to accomplish will be added to the
MPOWER priority list for no later than the second Release subsequent to
the effective date of this Agreement. Collectively these enhancements
identified herein are considered to be material terms of the Agreement.
VI. IMPLEMENTATION AND CONVERSION SERVICES
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23
MPOWER agrees to provide implementation services ("Implementation
Services") to assist Customer in implementing MPOWER(TM) at the Site(s).
These implementation services shall comprise: 1) analysis of the
Site's(s') business requirements; 2) assistance in the user set up
definitions and build; 3) testing of MPOWER; 4) pre/post activation
support for end users; 4) initial training services up to five (5) days;
and 5) project management. MPOWER shall charge Customer as set out in
Section VIII C below for all such Implementation Services requested by
Customer.
MPOWER agrees to provide conversion services ("Conversion Services") to
Customer to convert its current data fries from its existing software
system to the MPOWER(TM) database. MPOWER shall charge Customer as set
out in Section VIII C below for all such Conversion Services requested
by Customer.
MPOWER reserves the right to subcontract any Implementation Services
responsibilities it may accept under this Agreement. Customer shall have
the right to approve MPOWER's subcontractors, which approval shall not
be unreasonably withheld. If Customer objects to certain subcontractors
for a stated good cause, MPOWER and Customer agree to seek a mutually
agreeable resolution to Customer's objection.
VII. TRAINING SERVICES
MPOWER will provide Customer, at MPOWER's then-current fees, with
training sessions regarding MPOWER(TM) to a reasonable number of
Customer's personnel. All such training shall be in accordance with
MPOWER's published class-offering schedules and provided that adequate
classroom space exists at the time of Customer's request. For purposes
of this section, MPOWER agrees to set the Customer's per diem training
rate at $1,000.00 per day for the first twelve months from the date
first written above, with increases for the subsequent two years not to
exceed the CPI. Prior to the end of this three year period, CUSTOMER and
MPOWER shall negotiate in good faith the Customer's per diem rate to
apply to additional years.
VIII. FEES
A. MPOWER(TM) License Fees.
1. Fee for the Initial License.
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Customer agrees to pay MPOWER a license fee ("Initial License
Fee") equal to [*] Dollars [$[*]] for the master license granted
in Section II of this Attachment for up to [*] Lives ("Initial
License"). Customer agrees this entire Initial License Fee is
due to MPOWER on the full execution of this Attachment and
payable according to the schedule shown in Exhibit C hereto,
subject to the Money Back Guarantee. Upon execution of this
Agreement, Customer will deposit the Initial License Fee with a
mutually acceptable escrow agent ("Escrow Agent") and the
Initial License Fee will be released from the Escrow Agent to
MPOWER upon Acceptance (as hereinafter defined).
2. Fees for License Extensions.
Customer may during the term of this Agreement, provided
Customer is current with all Maintenance Fees, exercise an
incremental license for an additional [*] ([*]) Lives
("License Extension") up to a total of [four hundred thousand]
([*]) Lives by paying to MPOWER an additional license fee
("License Extension Fee") of [*] Dollars ($[*]).
The Initial License Fee and the License Extension Fee(s) may be
referred to as the License Fee(s).
The License Extension Fees will be billed and paid in accordance
with the terms and conditions outlined in this Agreement.
B. Annual Maintenance Fees.
Customer agrees to pay to MPOWER for the software maintenance
services described above a software maintenance fee
("Maintenance Fee") equal to [*] percent ([*]%) of the
aggregate of the Initial License Fee and all License Fee
Extensions paid or payable by Customer to MPOWER.
The annual Maintenance Fee is due and payable as follows: the
first annual Maintenance Fee shall be due and payable forty (40)
days after the date that Customer first begin to use MPOWER(TM)
in a Live Production Environment or six (6) months from the full
execution of this Attachment, whichever occurs first.
Each subsequent annual Maintenance Fee shall be billed and due
annually, based on the anniversary date of the first annual
Maintenance Fee due
* Confidential Treatment Requested
Page 24 of 40
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date. MPOWER will invoice Customer on an annual basis for the
maintenance fee. Customer agrees to pay such invoices within
thirty (30) days after Customer's receipt of the invoice.
Maintenance Fees Payment Schedule is outlined in Exhibit D to
this Attachment.
C. Implementation and Conversion Fees.
The fixed fee for the initial Implementation Services shall
equal to [*] Dollars [*] ("Implementation Fee") and shall, cover
the scope of services identified in an applicable Work Order
prior to commencement .
Such fixed fee shall be due upon the full execution of this
Attachment and payable over [*] [*] [*] installments
beginning in the month that the initial implementation is
commenced, pursuant to the aforementioned Work Order, subject to
the Money Back Guarantee.
The fixed fee for the Conversion Services shall equal to [*]
Dollars $[*] ("Conversion Fee") and shall be due upon the full
execution of this Attachment and payable over [*] [*] [*]
installments beginning in the month that the initial
installation is commenced, subject to the Money Back Guarantee,
and shall cover the scope of services identified in an
applicable Work Order prior to commencement
The Implementation Fee and Conversion Fee Payment Schedules for
1998 are outlined in Exhibit E.
D. Travel and out of pocket expenses.
The fees set out above do not include travel and other
out-of-pocket expenses which may be incurred by MPOWER in the
course of delivering the products and services described in this
Attachment. MPOWER shall use all its reasonable efforts to keep
these travel and other out-of-pocket expenses to a minimum.
MPOWER will invoice Customer for MPOWER's travel and out of
pocket expenses on a monthly basis, as they are incurred, and
Customer agrees to pay such invoices within thirty (30) days
after receipt of the invoice.
MPOWER agrees to the following travel expense guidelines. MPOWER
and Customer agree to an annual review of travel expense
guidelines.
* Confidential Treatment Requested
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MPOWER will use best effort in managing to the following expense
guidelines, as follows:
1. purchase of airline tickets with a minimum of seven (7) day
advance purchase required, unless otherwise specified by
Customer;
2. hotel lodging rate not to exceed the rates of a business
class hotel, and the rate does not include resort, local,
county or city applicable taxes,
3. daily food per diem not to exceed thirty five dollars,
4. car rental at the current economy rate except if the total
number of MPOWER employees equal or exceeds three (3) for
each visit.
E. Other Services
Customer may request and MPOWER may perform other services
("Other Services") for Customer, which services shall be
described in a Work Order, which shall be considered an addendum
to this Agreement and covered under the terms of this Agreement,
unless stated otherwise in the applicable Work Order.
F. [*]
MPOWER agrees that if a successful Live Production Environment
and Acceptance is not achieved based on the good faith effort of
both parties and based upon a mutually agreed to Implementation
Services and Conversion Services schedule and plan, that
Customer may request that the Agreement be terminated in
accordance with the procedures set out in Section V
(Termination) and Section X (Dispute Resolution) of the Master
Agreement. If the Agreement is terminated for this reason, the
[*].
IX. THIRD PARTY PRODUCTS
Customer has the option to utilize Third Party Products with MPOWER(TM)
as outlined in Exhibit .
XII. ADDITIONAL TERMS AND CONDITIONS
* Confidential Treatment Requested
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In addition to the terms and conditions of this Attachment, the parties
agree that all the terms and conditions of the Master Agreement shall
also apply to Customer's use of MPOWER(TM). Should any terms or
conditions of this Attachment and the Master Agreement conflict, the
terms and conditions of this Attachment shall take precedence.
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The parties have each read this Attachment and agree to be bound by all
of its provisions. The parties further agree that this Attachment
(including its Exhibits) and the Master Agreement constitute the
complete and exclusive statement of the agreement between the parties
regarding MPOWER(TM) and supersedes any and all prior agreements and
understandings between them pertaining to MPOWER(TM) and takes
precedence over the provisions of any purchase orders submitted to
MPOWER by Customer. This Attachment may be amended only in writing
signed by both parties.
CUSTOMER PROVIDE SERVICES, INC. MPOWER SOLUTIONS INC.
By: /s/ XXXXXX X. XXXX By: /s/ XXXX X. XXXXXXX
--------------------------------- ---------------------------------
Signature of Authorized Signatory Signature of Authorized Signatory
XXXXXX X. XXXX XXXX X. XXXXXXX
------------------------------------ ------------------------------------
Name Printout Name Printout
President Senior Vice President
------------------------------------ ------------------------------------
Title Title
2/20/98
---------------------------------- ----------------------------------
Date Date
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EXHIBIT A
KPMG Peat Marwick Advice on Applicable State and Local Taxes
As of the date of this Agreement, KPMG Peat Marwick, LLP, MPOWER's tax advisor
and public auditor has provided excerpts from applicable tax guides to MPOWER,
which MPOWER has forwarded to Customer, and provided the following verbal
indications of applicable state and local taxes in Washington State for the
parties in this transaction, as of the date of this Agreement. The taxes will be
added to the fees assessed Customer in accordance with the terms of this
Agreement.
- There will be no New Mexico gross receipts tax assessed on either the
professional services rendered or the software or the maintenance
services, which are considered delivered in Washington State.
- If any training is conducted in New Mexico, the fees will be subject
to gross receipts tax (approximately 5.8125%).
- Washington State will assess Business and Occupancy (B & O) tax, but
not sales tax, on all professional services, including conversion
costs.
- Washington State will assess both B & O tax and sales tax on MPOWER's
software and third party software, and the annual maintenance fees
(since they include enhancements and upgrades of the software).
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EXHIBIT B
PROPOSAL FOR EDI INTERFACE ENGINE
MPOWER currently provides interfaces to provider based systems through
an interface engine ("Interface Engine"). MPOWER currently has the right
to sublicense our integration partner HUBLink's HUBLink Integrator as
an Interface Engine to enable connectivity and message exchange between
applications without custom programming.
HUBLink Integrator supports industry standards such as HL7 for ADT and
patient/member registration, billing, scheduling and clinical decision
support (lab, radiology and pharmacy results and orders). In addition,
HUBLink and MPOWER have developed an industry standard X.12 EDI
interface that provides support for HCFA 1500, UB92 and other electronic
claim and certification processing.
HUBLink Integrator is licensed as a component of the MPOWER system that
enables easy participation in an enterprise-wide delivery system. In
addition, HUBLink Integrator may be used to facilitate message brokering
and distribution across all systems and has the scalability and
throughput to function as the heart of a diversified message brokering
architecture.
MPOWER may in the future use and/or sub-license a different interface
Engine. A preliminary estimate of the cost to Customer for an Interface
Engine is given below. Any acquisition of an Interface Engine to be used
with the MPOWER Product shall be governed by a separate agreement.
Preliminary Pricing for an Interface Engine (per server)
Interface Engine (per server) (Preliminary Estimate) [*]
Installation [*]
Estimated Annual Software Maintenance (Preliminary Estimate) [*]% annually
* Confidential Treatment Requested
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EXHIBIT C
MPOWER(TM) License Fee Payment Schedule for the License Fees. Refer to
Section VII A for MPOWER(TM) License terms and conditions.
EXPECTED PERCENTAGE AMOUNT
PAYMENT TRIGGERING EVENT TIMEFRAME DUE DUE
------------------------ --------- ---------- ------
Contract Execution [*] [*] [*]
Escrow established for the Initial Into Escrow
License Fee
Customer Setup commences either on [*] N/A
NT Platform or remotely on an
MPOWER UNIX Server
Acceptance Test on Remote UNIX [*] N/A
Platform or Begin Acceptance Test on
NT Platform, whichever occurs first
Completion of Acceptance Test on NT [*] N/A
Platform or Live Production
Environment on NT Platform,
whichever occurs first
40 Days after commencement of Live [*] Release
Production Environment on NT [*]
Platform ("Acceptance") from Escrow
Optional License Extension Indeterminate [*] [*]
Future (if and (Optional) (Optional)
when business
need dictates)
NOTE: If a successful Live Production Environment and Acceptance is not
achieved based on the good faith efforts of both parties, both parties
may mutually terminate the Agreement and the [*].
NOTE: Customer may [*].
* Confidential Treatment Requested
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EXHIBIT D
MPOWER Annual Maintenance Fee Payment Schedule.
MPOWER billing and Customer paying of Annual Maintenance Fees is outlined in
Section VIII B. Refer to Section VIII B for on-going and MPOWER Annual
Maintenance Fee terms and conditions. Based on Initial License Fee only.
PAYMENT ESTIMATED ESTIMATED
TRIGGERING EVENT TIMEFRAME PERCENTAGE DUE AMOUNT DUE
---------------- --------- ------------------------- ----------
40 days after [*] [*]% of First Year Annual [*]
commencement of Maintenance Fee
Live Production
Environment on
NT Platform
("Acceptance")
First and [*] [*]% of Annual Maintenance [*]% of Total
Subsequent Fee License Fee
Anniversaries of
Thereafter
Live Production
Environment
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EXHIBIT E
MPOWER Initial Implementation Fee and Conversion Fee Payment Schedules
MPOWER billing and Customer paying of Implementation Fees and Conversion
Fees are outlined in Section VIII C. Refer to Section VIII C.
for Terms and Conditions. Initial Implementation Fee is $[*].
Conversion Fee is $[*].
PAYMENT ESTIMATED ESTIMATED
TRIGGERING EVENT TIMEFRAME PERCENTAGE DUE AMOUNT DUE
Commencement of [*] [*] Implementation:
Setup Activities for $[*]
Initial Conversion: $[*]
Implementation
Services
2nd Month of Initial [*] [*] Implementation
Implementation: $[*]
Services Conversion: $[*]
3rd Month of Initial [*] [*] Implementation:
Implementation $[*]
Services Conversion: $[*]
NOTE: If a successful Live Production Environment and Acceptance is not
achieved based on the good faith efforts of both parties, Customer may
request that both parties mutually terminate the Agreement, and if the
Agreement is so terminated, [*].
* Confidential Treatment Requested
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EXHIBIT F
Modules Included in MPOWER(TM)
All modules are included by MPOWER and comprise MPOWER(TM) as of the
date of this Attachment:
- Set-ups
- Group Enrollment & Contracting
- Premium Billing & Accounts Receivable
- Member/Subscriber Enrollment
- Provider Contracting
- Capitation
- Claims Adjudication for UB92/HCFA 1500 Claims
- Certifications/Authorizations
- Customer Service
- Letter Generation
- Medicare Risk
- Medicaid Processing
- Ad Hoc Reporting
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EXHIBIT G
SEVERITY DEFINITIONS AND RESOLUTION PROCESS
- SEVERITY 1.
The problem causes complete loss of service in the production and
staging environment and work cannot reasonably continue. The problem or
defect has one or more of the following characteristics:
[ ] > Data corruption. Physical or logical data is unavailable or
incorrect.
Examples: Block format corruption, invalid indices, corruption of
meta-data, incorrect results.
[ ] > Critical functionality is not available.
[ ] > System hangs. The process hangs indefinitely or there is severe
performance degradation, causing unreasonable waits for resources
or response, as if the system is hanging.
[ ] > The entire MPOWER application crashes repeatedly.
[ ] > Database process or background processes fall and continue to
fail after restart attempts.
[ ] > Potential for above occurrences is defined imminent.
RESOLUTION OF SEVERITY 1: Until the issue is resolved MPOWER Solutions
will work on Severity 1 around the clock (7x24). As a result of the
severity, the customer must provide MPOWER with a point of contact
during the 7x24 period. The customer's point of contact will assist the
MPOWER customer support and development staff in gathering data, testing
fixes in the customer's testing region, and applying fixes to the
customer production environment.
- SEVERITY 2:
Problem or product defect causes a severe impact on the customer's
business regardless of customer environment. No workaround is available,
however operations can continue in a restricted fashion. The problem or
defect has one or more of the following characteristics:
[ ] > Business Impact Examples: The customer can handle current
volume, but will not be able to handle quarter close; At close,
customer finds totals wrong, but close is not for a few weeks.
[ ] > Internal software error, causing the application to fall to run
to completion, or return wrong results, or software error
severely degrades performance.
[ ] > Some important functionality is unavailable, yet the system can
continue to operate in a restricted fashion.
[ ] > Potential for above occurrences is defined imminent.
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RESOLUTION OF SEVERITY 2: MPOWER Solutions will work on Severity 2 bug
based on customer assigned priority. Severity 2 fixes will be added in
the next scheduled maintenance or patch release.
- SEVERITY 3.
Problem or product defect causes minimal impact on the Customer's
business. The impact of the problem or defect is minor or an
inconvenience, such as a manual bypass to restore product functionality.
The problem or defect has one or more of the following characteristics:
[ ] > A software error for which there is an acceptable workaround.
[ ] > Software error minimally degrades performance.
[ ] > Software error or incorrect behavior has minor impact the
operation of the system.
RESOLUTION OF SEVERITY 3: Fixes for severity 3 bugs will be added to the
priority list for the next major scheduled release of the product. The
order of priority for resolving severity 3 issues will be assigned
jointly by the Customer and MPOWER.
- SEVERITY 4.
The problem or product defect causes NO impact on the Customer's
business. The problem or defect is a minor error, incorrect behavior, or
a documentation error that in no way impedes the operation of a system.
Resolution of Severity 4: Fixes for severity 4 bugs will be added to the
priority list for the next major scheduled release of the product. The
order of priority for resolving severity 4 issues will be assigned
jointly by the Customer and MPOWER.
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EXHIBIT H
PSI REQUESTED CUSTOMER ENHANCEMENTS
1. Bar Coding Capabilities/Document Control Tracking (priority_ for business
flow)
Ability for system to accept a bar code number from the claim form.
Bar code number would contain the document control number for tracking
and filing purposes.
The bar code number would be used for filing under a document imaging
system.
PSI will need to be able to capture a 15 digit document control number
to identify the following:
- Julian date for claim received at PSI
- IPA identifier
- Plan identifier
- Line of business
- Type of claim
2. Provider File
Ability to capture notes by provider (under provider file)
Termination dates for providers. Very important, we do not want to be
assigning members to or paying capitation and claim on a terminated
provider.
Add Provider fax number and e-mail address to provider file.
3. Percent of Premium Calculation
Due to the expected growth of the PSI business, it is imperative that
the system be able to calculate percent of premium. The current manual
calculation outside the system will not accommodate the growth
expectations.
4. UB-92 Requirements (priority _to meet delegated requirement)
Must capture the following data in order to meet the strict reporting
requirements of the Plans, HCFA, and the State of Washington MAA:
- Principal ICD-9-CM diagnosis code and nine additional
secondary ICD- 9-CM diagnosis codes.
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- Principal ICD-9-CM procedure code and 5 additional secondary ICD-9- CM
procedure codes.
DRG codes.
DRG Grouper type and version, should be date of service sensitive.
Ability to track DRG codes and grouper version to Plan/line of
business.
Newborn birth weight.
Type of xxxx
Admit/Discharge date
Admit/Discharge hour
Attending physician name
Capture revenue codes and CPT codes together (Medicare and
Washington State Medicaid requirement).
Process CPT code modifiers on the UB-92 (new 1998 requirement for
Medicare)
5. Separate screens for UB-92 (inpatient and outpatient) and HCFA-1500
6. Referral/Authorizations
Ability to track appeals and grievances against a referral.
Track referral turn around times by:
- First date stamp
- Date entered into MPower
- Date deferred
- Date notes received on deferred referral
- Date reviewed again on deferred referral
- Date approved or denied
Ability to capture if the specialist has referred on for additional
services
Negotiated rates.
If referral is elective or emergent.
One screen.
7. Original Stamp Date on Claim
Necessity to capture an "original stamp date" or 'original receipt date"
which can be different from the document filing stamp date that is
contained in the Julian Date sub-field portion of the Claim Number
field. Since PSI is fully delegated by HMO insurance companies, claims
received by the upstream insurance company must be honored for
calculating the interest' due for Medicare claims received from
non-contracted providers that are paid more slowly than Medicare
regulations permit.
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Reporting needs to calculate the time elapsed from "original receipt
date" to the "document filing stamp date", which is the date that the
downstream MSO has received the claim.
Dates that claim is entered, set-to-pay and paid are already captured in
the system as well as the document filing stamp date (within claim
number scheme)
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ATTACHMENT I
Pre-Requisite Hardware and Software
for the Initial Release of MPOWER(TM) on an NT Server
Products required:
For the NT Server are
1.) IBM's Transaction Server for Windows NT (CICS operating system)
version 4.02
2.) MicroFocus's COBOL version 4.0.32.
3.) IBM's DB2 Universal Developers Edition for NT version 5.0
For an NT Client (PC running either Win95 or NT - 32bit OS):
1.) MultiSoft's WCL Toolkit version 5.0 32bit - WCL is the
communication interface product that passes data from a 3270
emulator to VB.
2.) Wall Data's Rumba for the Mainframe Win95/NT Client version
5.1uol - Rumba provides 3270-compatable connectivity to a host
computer. (Version 5.2 is scheduled for release mid-1st quarter
which we will be upgrading to)
3.) IBM's DB2 Client Setup Version 5.0 - Allows for ODBC connectivity
to back end databases.
For the client to communicate with the server:
Communication protocol is via TCP/IP, so the clients need to networked,
32 bit OS, PCs. The server machine should have at least the hardware
recommended by Microsoft for running the NT 4.0 Server operating system
and should also be attached to the network.
As MPOWER finalizes the testing of the MPOWER NT system, MPOWER will be firming
up installation, implementation, and requirements guides.
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