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EXHIBIT 10.10
MPOWER SOLUTIONS, INC.
ADMINISTRATIVE SERVICES AGREEMENT
THIS MASTER AGREEMENT (the "Agreement"), effective March 29, 1999 (the
"Effective Date"), is made and entered into by and between MPOWER SOLUTIONS,
INC., a Delaware corporation with its principal place of business located at
0000 X. Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("MPOWER") and
AMERICAN MEDICAL PATHWAYS, INC., a Delaware corporation and wholly-owned
subsidiary of American Medical Response, Inc. ("AMK"), a Delaware corporation,
with its principal place of business located at 0000 Xxxxx Xxxxxx Xxxx, Xxxxxx,
XX 00000 ("Customer") and sets forth the promises of the parties with respect to
the products and services of MPOWER which are described in this Agreement, with
reference to the following facts:
WHEREAS, MPOWER is in the business of providing automated managed health care
information software and third-party administrative services of medical
insurance programs 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 provides medical transportation services and network
management functions to managed care health plans;
WHEREAS, Customer desires to retain MPOWER, and MPOWER desires to be so
retained, to provide third-party-administrative services to Customer in
connection with Customer's contracts to provide medical transportation services
to various managed care health plans in a multi-state region, in accordance with
the terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual promises made, the terms and
conditions hereunder described and other valuable consideration, the parties
agree as follows:
I. DEFINITIONS
1. Administrative Manual means a manual of the policies and procedures of
a Contracted Health Plan that will be jointly developed and followed by
Customer and the Contracted Health Plan with respect to administration
of the applicable Health Plan Agreement. The Administrative Manual(s)
are hereby incorporated by reference into this Agreement.
2. Contracted Health Plan means a health maintenance organization or
health plan with which Customer has contracted to provide medical
transportation services.
3. Health Plan Agreement means the contract between Customer and a
Contracted Health Plan pursuant to which Customer provides medical
transportation services to Members of a Contracted Health Plan.
4. Medical Necessity means services that are covered as basic covered
benefits under the applicable Membership Agreement and are appropriate
and necessary for the symptoms or treatment of a medical condition.
Whether a covered service is Medically Necessary shall be determined
based on criteria set forth in the applicable Administrative Manual.
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5. Member means an individual or his or her dependents, as the case may
be, who is entitled to receive health care services from a Contracted
Health Plan pursuant to that individual's Membership Agreement.
6. Membership Agreement means the agreement between a Contracting Health
Plan and an individual or group pursuant to which a Member receives,
among other things, medical transportation services.
II. RESPONSIBILITIES OF MPOWER
1. SERVICES TO BE PROVIDED.
A. SERVICES. MPOWER shall provide (i) claims processing services
in connection with the medical transportation services
provided by Customer pursuant to its Health Plan Agreements;
(ii) medical review services associated with such claims
processing; (iii) receipt of inquiries concerning eligibility,
benefits, and claims status; and (iv) related reports required
to be provided by Customer pursuant to its Health Plan
Agreements. Such services shall be provided in accordance with
this Agreement and the requirements of the applicable
Administrative Manual. Customer shall consult with MPOWER in
connection with developing the portions of each Administrative
Manual applicable to claims processing, and MPOWER shall have
the opportunity to appoint a representative to participate on
the team established by Customer to develop each
Administrative Manual. Customer shall also provide MPOWER
promptly with all information from Health Plan Agreements and
Member Agreements that is necessary for MPOWER to perform its
obligations under this Agreement.
MPOWER shall cooperate with and assist Customer in
establishing and providing effective communication links and
working relationships with the Contracted Health Plans and
other program administrators retained by Customer with respect
to administration of other aspects of Customer's Health Plan
Agreements. The key assumptions used to establish services to
be provided by MPOWER and compensation hereunder are more
particularly described on Exhibit A, attached hereto and made
a part of this Agreement.
This Agreement shall apply to all Health Plan Agreements, both
current and those that will be entered into by Customer during
the term of this Agreement.
B. CLAIMS PROCESSING. MPOWER shall promptly process all claims in
accordance with the terms of the applicable Membership
Agreement, Health Plan Agreement, and Administrative Manual,
which process shall include, without limitation, the
following:
1. Receive and date stamp all claims, indicating the
date of receipt of each claim, in the case of paper
claims, and the date of transmission of each claim to
MPOWER, in the case of claims electronically
submitted to MPOWER.
2. Verify Member eligibility.
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3. Determine the Medical Necessity of medical transportation
services in accordance with the Medical Necessity standards
set forth in the applicable Administrative Manual. Any claim
that would be denied on the basis of Medical Necessity shall
be referred to the Contracted Health Plan prior to denial.
Except as otherwise provided in the applicable Administrative
Manual, (a) the Contracted Health Plan, or its designee, shall
be solely responsible for notifying the Member of the denial
of any claim; and (b) MPOWER shall not contact the Member with
respect to any denial of claims. If the Contracted Health
Plan approves the claim, Customer shall notify MPOWER of the
approval, and MPOWER shall promptly pay the claim.
Notwithstanding the foregoing, if Customer's referral
authorization is included in the claims submission, then the
Medical Necessity of the claims will be deemed to be
determined, and further review will not be required.
4. Deny claims that are not covered benefits for reasons other
than Medical Necessity and notify the Contracted Health Plan,
as required, of the Member's right to appeal such denial in
accordance with the Contracted Health Plan's appeal process.
5. Calculate and promptly pay to the appropriate transportation
or other network provider the amount to be paid as covered
benefits in accordance with the applicable network provider
agreement and Membership Agreement. Unless a claim is
disputed, MPOWER shall make payment on the claim within the
time frame required by applicable state or federal law or
regulation or such other period of time as set forth in the
applicable Administrative Manual and Membership Agreement.
6. Calculate and notify provider via statement of remittance for
Member liability only as provided in the Health Plan
Agreements.
7. The specific time limits for performing the functions set
forth in this Section II.1.B shall be specified in the
applicable Administrative Manual.
2. IMPLEMENTATION. MPOWER shall take all actions necessary to establish
all administrative and other connections and arrangements necessary for
the transfer of data and processing of claims, including, without
limitation, the establishment and maintenance of electronic data
interface or electronic data transfer capabilities for the electronic
transfer of encounter and other data related to claims. processing in a
timely manner. MPOWER and Customer shall agree on an implementation
project plan and schedule, which shall be set forth on Exhibit B,
attached to this Agreement and made a part hereof. The implementation
project plan and schedule xxxx identify the steps necessary to achieve
implementation of this Agreement, the responsibilities of the
respective parties, and the timeframe for completion of each step.
Provided that Customer completes any requirements it has within the
implementation plan in a timely manner, the plan shall result in
completion of the implementation process in accordance with the
implementation table set forth on Exhibit A of this Agreement. MPOWER
agrees that it will be ready for implementation of this Agreement in
connection with the first Health Plan Agreement by [*].
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In the event Customer enters into Health Plan Agreements with
additional Contracted Health Plans, MPOWER shall cooperate diligently
with Customer to implement services in connection with such Health Plan
Agreements. In consideration for such implementation, Customer shall
pay MPOWER for MPOWER's costs for such implementation based on mutually
agreed upon work orders. One half of the estimated amount of such costs
shall be paid to MPOWER prior to commencement of such implementation
and the balance shall be paid upon successful completion of
implementation.
3. QUALIFICATIONS AND SERVICE LEVEL REQUIREMENTS. Consistent, high quality
service to Customer, policyholders, Contracted Health Plans, and
providers is an essential requirement. MPOWER will meet the following
qualifications and service level commitments.
A. On or before [*], MPOWER shall file initial applications to
obtain all applicable licenses/certifications required for
MPOWER to perform its obligations hereunder, including without
limitation, licensure as a third party administrator and
utilization review agent, if applicable, and MPOWER shall
obtain such licenses/certifications. Thereafter, MPOWER shall
at all times during the term of this Agreement remain
appropriately licensed in each state in which MPOWER performs
services hereunder.
B. Subject to Section 3.A above, MPOWER shall remain in
compliance with all applicable local, state, and federal laws,
rules and regulations relating to the services provided by
MPOWER hereunder, including without limitation, fulfillment of
third party administrator financial obligations pertaining to
payment of penalties for late claims, interest, or other
penalties, as well as any claim reserves or other funding
requirements.
C. MPOWER will maintain compliance with all Customer requirements
pertaining to claims processing procedures, including without
limitation, those requirements set forth in the Administrative
Manual. The parties will establish procedures regarding
handling and disbursement of funds as part of the
implementation process, to be finalized prior to [*].
D. MPOWER shall meet or exceed the performance standards set
forth herein relating to claims processing, including but not
limited to claims turnaround time, payment accuracy, and
reporting.
E. MPOWER will establish and maintain throughout the life of the
Agreement a dedicated staff of personnel responsible for
servicing Customer's individual business.
F. MPOWER will maintain backup tapes of all programs, data,
and/or any other information used in the administration of
claims.
G. MPOWER represents and warrants that all hardware/software
required to perform MPOWER's obligations hereunder is Year
2000 compatible and that the information and services to be
provided by MPOWER will not be impaired, disrupted, or
interrupted, in whole or in part, by deficiencies or
inaccuracies related to the processing and display of
date/time data (including, but not limited to, century
recognition, calculations that
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accommodate the same century and multi-century formulas and
date values, and interface values that reflect the century)
from, into, and between the 20th and 21st centuries, and the
years 1999 and 2000, and leap year calculations. In the event
that Customer becomes aware that MPOWER(R) has not processed
data containing any dates correctly, Customer shall
immediately notify MPOWER of this fact, and MPOWER agrees to
correct or replace MPOWER(R) to eliminate the problem.
4. PERFORMANCE STANDARDS AND ASSOCIATED FINANCIAL PENALTIES.
A. MPOWER shall meet the following performance goals in
connection with the following performance standards:
1. Claims Processing Accuracy. Not less than [*] percent
([*]%) of the claims submitted to MPOWER will be
accurately adjudicated in accordance with the
applicable Administrative Manual, the Network
Provider Agreement and the applicable Membership
Agreement. The performance assessment for claims
adjudication accuracy shall be based on audits
performed by Customer.
2. Timing of Claims Payments. Not less than [*] percent
([*]%) of all claims shall be processed within thirty
(30) calendar days of receipt.
3. Accuracy of Claims Payments. Not less than [*]
percent ([*]%) of the claims submitted to MPOWER
shall be priced in accordance with Customer's
instructions regarding pricing.
4. Written inquiry response time. Not less than [*]
percent ([*]%) of Member's written questions
regarding medical transportation services will be
responded to within five (5) working days after
receipt of such inquiry, Not less than [*]
percent ([*]%) of Member's written requests regarding
medical transportation services will be responded to
within seven (7) working days after receipt of such
inquiry. MPOWER shall report all written inquiries to
Customer on a monthly basis in a format mutually
acceptable to the parties and to the Contracted
Health Plans. In addition, MPOWER shall report all
phone and written complaints and grievances to
Customer within two (2) business days of receipt.
5. Telephone inquiry response time. Not less than [*]
percent ([*]%) of all incoming phone calls shall be
responded to within a time not to exceed twenty (20)
seconds. No telephone inquiries during normal
business hours from Members or Contracted Health Plan
inquiries regarding denials or disputes will be
blocked due to MPOWER's failure to maintain its
system.
6. Abandoned Call Rate. MPOWER's abandoned call rate
shall not exceed [*] percent ([*]%) on not less than
[*] percent ([*]%) of business days.
B. The parties acknowledge that Customer may be subject to
penalties for failure to meet each performance goals set forth
above at least [*] percent ([*]%) of the time during each
calendar quarter. In connection with the assessment of
MPOWER's performance of these
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goals, MPOWER. may be audited by Customer, by a Contracted
Health Plan, or by an independent auditor on behalf of
Customer and/or a Contracted Health Plan. MPOWER shall be
responsible for, and shall reimburse Customer for, penalties
incurred by Customer under any Health Plan Agreement
(including Administrative Manual) due to MPOWER's failure to
meet each performance goals set forth above [*] percent ([*]%)
of the time during each calendar quarter. Such penalties shall
be paid by MPOWER, to Customer within thirty (30) days after
notification by Customer of the amount of such penalty(ies).
Penalties for specific Contracted Health Plans are more fully
described in Exhibit A hereof and subsequent exhibits
addressing scope of services for each Contracted Health Plan.
5. REPORTING.
A. MPOWER shall accurately measure and report service levels to
Customer. MPOWER, shall provide to Customer (or directly to
the Contracted Health Plans, if so directed by Customer)
reports containing information required by Customer and the
applicable Contracted Health Plan, in accordance with the
applicable Administrative Manual or Contracted Health Plan
Amendment. Such reports must be sent via magnetic tape,
electronic transmission, or diskette (or hard copy, if
requested by a Contracted Health Plan) in a standard format
established by Customer and the Contracted Health Plans, for
each encounter that Member receives during the previous month.
Such information shall be complete and accurate and shall be
provided to Customer (or to a Contracted Health Plan directly,
if so directed by Customer) by the fifteenth (15th) day of the
month, or if the fifteenth (15th) day falls on a weekend or a
holiday, as of the next business day thereafter. However, for
a period, not to exceed nine months, the California Department
of Corporations shall require for all California Contracted
Health Plans weekly reporting. Such encounter data reporting
shall be segregated by Contracted Health Plan. MPOWER shall
promptly provide Customer (or the Contracted Health Plan, as
appropriate) with all corrections and revisions of such
encounter data. Encounter data shall include, at a minimum,
those data elements identified on the HCFA 1500, or its
successor form.
B. MPOWER shall provide to Customer reports related to the
performance of each standard set forth in Paragraph II.4.A
above in the format identified in the applicable
Administrative Manual. Such reports shall be provided on a
monthly or quarterly basis, as determined by Customer and the
applicable Contracted Health Plan, and shall be segregated by
Contracted Health Plan.
C. Upon request, MPOWER shall provide to Customer, or shall
assist Customer to prepare, quality reports in a format
identified in the applicable Administrative Manual. Such
reports shall be prepared at least quarterly and shall be
segregated by Contacted Health Plan.
6. AUDITS. Customer and the Contracted Health Plans shall have the right
to audit MPOWER at any time in connection with MPOWER's performance
pursuant to this Agreement. MPOWER will provide Customer and the
Contracted Health Plans, or their designees, with access at any time to
all of MPOWER's books, records, and systems prepared, maintained, and
utilized in connection with the performance of MPOWER's obligations
pursuant to this Agreement, in every format utilized by MPOWER.
Customer and the Contracted Health Plans, or their designees, shall
have
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access to MPOWER's personnel during normal business hours, and such
personnel shall cooperate fully with Customer and the Contracted Health
Plans or their designees in the performance of such audits. Customer
shall have the right to copy any and all books and records associated
with MPOWER's services provided to Customer hereunder. Customer agrees
that it will use its best commercially reasonable efforts not to
disrupt the business of MPOWER during the performance of such audits.
7. KEY PERSONNEL. MPOWER will identify and commit key personnel to the
implementation and management of services to be provided under this
Agreement. Any staffing changes involving key personnel will be
discussed in advance between Customer and MPOWER.
8. CONFIDENTIALITY. MPOWER shall maintain the confidentiality of all
Customer and Contracted Health Plan data, including, but not limited
to, contracts, provider information, strategic objectives, enrollment,
financial information, etc. Except as described below, MPOWER shall not
disclose the details of Customer's or any Contracted Health Plan
program experience, including such information as price, claims
history, profit/loss, etc., to any third party. Except as described
below, MPOWER shall maintain the confidentiality of all Customer and
Contracted Health Plan policyholder data, including any medical records
information, operative reports, fee schedule information, and the like.
MPOWER shall disclose information described in this Section only: (a)
in response to a court order; (b) for an examination conducted by the
applicable Office of the Insurance Commissioner; (c) for an audit or
investigation conducted under the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1001, et seq.); (d) to or at the request of
Customer; or (e), with respect to individual patient information, with
the written consent of the insured or certificate holder (or a
designated legal representative) to which the information applies.
MPOWER shall obtain a confidentiality agreement protecting Customer's
confidential information from any subcontractor in a form satisfactory
to Customer.
MPOWER and Customer mutually covenant to keep confidential any
proprietary or confidential information of the other party, and to
implement safeguards designed to prevent disclosure of any proprietary
or confidential information of either party to a third party without
the express written consent of the other party. Such information shall
include internal business practices, business records, trade secrets,
contracts, the terms of this Agreement, or business methods, in any
form whatsoever. MPOWER and Customer further mutually covenant that the
proprietary confidential information of the other will be disclosed
only to such of its employees and representatives as have a need for
such information in furtherance of the purpose contemplated by this
Agreement and, in any case, will be responsible for breaches of this
Section by such employees and representatives. Upon request, the party
receiving such information shall either return or destroy confidential
information, as directed by the disclosing party.
9. TRAINING. MPOWER shall complete any necessary training of Customer
staff and/or staff from other administrators with whom Customer has
contracted for specific services. Customer shall provide training to
MPOWER staff regarding (a) pertinent portions of the applicable
Membership Agreements, including without limitation covered benefits
for medical transportation services, (b) applicable portions of the
Administrative Manuals pertaining to MPOWER's obligations
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hereunder; and (c) any special processes, procedures, or benefits
applicable to a specific Contracted Health Plan that are necessary in
order for MPOWER to satisfy its obligations under this Agreement.
MPOWER. shall make available staff members designated as key contacts
for all administrators and Contracted Health Plans to attend sessions
conducted by Customer for product training, provider issues resolution
or training, and to help build effective working relationships among
administrators and Contracted Health Plans. Such sessions shall be
sponsored by Customer and scheduled as far in advance as possible.
III. PRICE AND PAYMENT
1. PRICE. The fees for the services of MPOWER pursuant to this Agreement
are identified on Exhibit A. These fees cover those services provided
by MPOWER pursuant to this Agreement and are based on the key
assumptions identified on Exhibit A, as well as the cost of toll-free
telephone lines and supplies. In the event of the addition of new
Contracted Health Plans, the encounter pricing set forth on Exhibit A
shall remain applicable to services provided in connection with such
new Contracted Health Plans, except that if the requirements for such
services are materially greater or less than the assumptions set forth
on Exhibit A, the per encounter charge may be changed accordingly upon
mutual agreement of the parties. Notwithstanding the foregoing, the
parties acknowledge that the price set forth in Exhibit A is not
contingent upon the continuation of any specific Health Plan Agreement
between Customer and a Contracted Health Plan.
2. PAYMENT. On or before the fifteenth (15th) day of each month, MPOWER
shall provide Customer with a report of the aggregate number of
encounters processed by MPOWER during the previous month. Customer will
pay MPOWER the applicable tiered encounter fee for such encounters on
or before the last day of the month during which such report was
received by Customer. Customer's obligation to pay MPOWER hereunder
shall be subject to Customer's right to audit MPOWER's books and
records to verify encounters processed by MPOWER in connection with
this Agreement. Customer shall be entitled to offset and withhold from
MPOWER any amounts due Customer for penalties or otherwise.
3. CHARGES. Customer agrees that MPOWER shall have the right to charge
interest 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 (except to the extent that such amounts are
reasonably disputed by Customer), 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.
IV. INDEMNIFICATION
1. Customer agrees to defend, indemnify, and hold harmless MPOWER, and its
parent and subsidiaries, and their officers, directors, agents, and
employees, from and against any claim, expenses (including reasonable
attorney fees and litigation costs), losses, lawsuits, damages, fines,
penalties, or other liability to any third party, including
participating providers, nonparticipating providers, and Customer's
insureds, arising out of or related to any negligent, wrongful, or
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unauthorized act or omission of Customer or act or omission of MPOWER
expressly required by Customer. MPOWER acknowledges its responsibility
to notify Customer if the officers or directors of MPOWER has knowledge
that direction provided by Customer is negligent, wrongful, or
unauthorized.
2. MPOWER agrees to defend, indemnify, and hold harmless Customer, the
Contracted Health Plans, their respective parents, subsidiaries and
affiliates, and their officers, directors, agents, and employees, from
and against any claim, expenses (including reasonable attorney fees and
litigation costs), losses, lawsuits, damages, fines, penalties, or
other liability to any third party, arising out of or related to any
negligent, wrongful, or unauthorized act or omission of MPOWER.
Customer acknowledges its responsibility to notify MPOWER if the
officers or directors of Customer has knowledge that any action on the
part of MPOWER is negligent, wrongful, or unauthorized.
3. Each party will promptly notify the other if it becomes aware Of any
lawsuit, insurance department complaint, or demand by an attorney,
which may affect the other; provided, however, that the failure to give
such notice will not relieve any such other party from liability under
this Article IV with respect to such lawsuit, insurance department
complaint or attorney demand, except to the extent that such other
party has been actually prejudiced as a result of such failure.
Customer shall be fully responsible for defending lawsuits based solely
on claims arising under the provisions of its policies. MPOWER shall be
fully responsible for defending lawsuits based solely on allegations of
MPOWER's own misconduct. If either party is named as a defendant in a
lawsuit for any matter for which the other party is responsible under
this provision, the other party shall be responsible for defending such
matter. Responsibilities under this provision includes liability for
judgments, reasonable attorney fees, costs, penalties, and fines.
4. Notwithstanding other provisions of this Article IV, the duty of either
party to notify the other, defend, indemnify, or hold harmless under
this Article shall not arise unless and until such claim, expense,
loss, damage, fine, penalty, or other liability to any third party
shall exceed $25,000.
V. DISPUTE RESOLUTION
1. NOTIFICATION AND RESOLUTION OF COMPLAINTS. MPOWER shall notify Customer
within forty-eight (48) hours of receipt of any complaint received from
a Member, a Member's representative, a Contracted Health Plan (if such
complaint involves administrative services rendered by MPOWER pursuant
to this Agreement) or a provider of medical transportation services in
connection with services rendered by MPOWER hereunder. MPOWER agrees to
cooperate fully with Customer and with the applicable Contracted Health
Plan in resolving any Member or provider complaint regarding services
provided by MPOWER in connection with this Agreement, in accordance
with the dispute resolution procedure set forth in the applicable
Membership Agreement, Administrative Manual or provider agreements, as
appropriate. In addition, MPOWER agrees to be joined in any dispute
between Customer and a Contracted Health Plan involving administrative
services rendered by MPOWER pursuant to this Agreement, and to
cooperate fully in the resolution of such dispute in accordance with
the dispute resolution procedure set forth in the applicable Health
Plan Agreement.
2. DISPUTE BETWEEN THE PARTIES. If any dispute shall arise between the
parties in connection with this Agreement that is unrelated to a
Member, provider, or Contracted Health Plan
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complaint, the parties shall make every effort to amicably resolve the
dispute pursuant to this Section V.2. The following procedures shall be
adhered to in order to expeditiously resolve any disputes arising
during the term of this Agreement.
A. The party invoking the procedures of this Section V.2 shall
provide written notice to the other party. Each party shall
designate an individual empowered to bind the organization to
a negotiated resolution of the dispute. Unless the dispute is
resolved with fewer meetings, these parties shall meet and
confer at least two (2) times within forty-five (45) days to
attempt to reach such resolution. If the matter has not been
resolved informally within such forty-five (45) days (which
period may be extended by mutual agreement), the dispute shall
be settled by binding arbitration, in accordance with the
provisions of Sections B through G of this Section V.2.
B. Either party may commence arbitration by sending a written
demand for arbitration to the other party, setting forth the
nature of the controversy, the dollar amount involved, if any,
and the remedies sought, and attaching a copy of this Article
V to the demand. The parties shall attempt to agree upon
either one or three (3) arbitrators, as they jointly deem
appropriate. If the parties fail to agree upon the appropriate
number of arbitrators and the identity of the arbitrator(s)
within ten (10) days after the demand for arbitration is
mailed, then the parties stipulate to arbitration before three
(3) neutral arbitrators sitting on the JAMS/Endispute ("JAMS")
panel administered by the Denver, Colorado, JAMS office. Each
party shall select one such arbitrator from the panel, and the
third arbitrator shall be selected by the first two so
selected. All three arbitrators shall be neutrals, and no
arbitrator shall have a conflict of interest unless waived by
both parties.
C. The parties shall share all costs of arbitration.
D. The arbitrator(s) shall apply the substantive law of Colorado.
The parties shall have the rights of discovery as provided for
any judicial proceeding. The Colorado evidence code shall
apply to testimony and documents submitted to the
arbitrator(s).
E. Arbitration shall take place in Denver, Colorado unless the
parties otherwise agree. As soon as reasonably practicable,
the arbitrator(s) shall conduct a hearing on the dispute or
matter to be resolved. As soon as reasonably practicable
thereafter, the arbitrator(s) shall arrive at a final
decision, which shall be reduced to writing, signed by the
arbitrator(s) and mailed to each of the parties and their
legal counsel.
F. All decisions of the arbitrator(s) shall be final, binding and
conclusive on the parties and shall constitute the only method
of resolving disputes or matters subject to arbitration under
this Agreement. The arbitrator(s) or a court of appropriate
jurisdiction may issue a writ of execution to enforce the
arbitrator's judgment. Judgment may be entered upon such a
decision in accordance with applicable law in any court having
jurisdiction.
G. Notwithstanding the foregoing, because time is of the essence
of this Agreement, the parties specifically reserve the right
to seek a judicial temporary restraining order, preliminary
injunction, or other similar short term equitable relief, and
grant the
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arbitrator(s) the right to make a final determination of the
parties' rights, including whether to make permanent or
dissolve such court order.
VI. TERM AND TERMINATION
1. TERM. The initial term of this Agreement shall commence on the
Effective Date hereof and shall continue for a period of [*] ([*])
years unless sooner terminated in accordance with this Article VI.
Thereafter, this Agreement shall automatically renew for consecutive
one (1) year periods.
2. DELAYS IN IMPLEMENTATION. In the event this Agreement is not
implemented in accordance with the implementation schedule set forth on
Exhibit A as to any service area noted in such schedule, and such delay
is caused by the acts or omissions of MPOWER (except as such acts or
omissions were directed by Customer), MPOWER shall be liable for any
damages incurred by Customer as a result of such delay, including such
damages payable by Customer to a Contracted Health Plan under the
applicable Health Plan Agreement in connection with such delay in
implementation. MPOWER shall continue implementation of the remaining
service areas in accordance with the implementation schedule. If the
delayed service area is not implemented within ninety (90) days of the
scheduled implementation date, such delay by MPOWER shall be deemed to
be a material breach of this Agreement. This section shall not apply to
any delays in implementation resulting from the actions of Customer or
the applicable Contracted Health Plan.
3. TERMINATION WITHOUT CAUSE. This Agreement may be terminated without
cause by either party by providing one hundred twenty (120) days prior
written notice to the other party; provided, however, that if MPOWER
terminates this Agreement pursuant to this Section, Customer shall have
the right to exercise the option set forth on Attachment A-2 of Exhibit
A of this Agreement, regardless of when during the term of this
Agreement such termination occurs.
4. TERMINATION FOR CAUSE. This Agreement may be terminated immediately
upon written notice thereof given by either party if any one oft he
following occurs, but in no event shall such termination relieve either
party from any of its obligations incurred at the time of termination
under this Agreement.
A. Except as provided in Section 4.B below, either party may
terminate this Agreement upon failure of the other party to
cure non-compliance with any material provision of this
Agreement within thirty (30) days after the terminating party
gives written notice of such non-compliance to the other
party, unless cure of the non-compliance cannot be reasonably
completed within thirty (30) days, in which case such cure
shall be commenced within such thirty (30) day period and
diligently pursued to completion, which completion shall occur
no later than forty-five (45) days after the initial notice of
termination. Any such termination shall be effective as of the
date of expiration of the applicable cure period.
B. In the event of breach by MPOWER, Customer may terminate this
Agreement in whole or in part (i.e., only as to specific
service areas or Contracted Health Plans).
5. IMMEDIATE TERMINATION.
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A. Subject to Section II.3.A hereof, this Agreement shall
automatically terminate if MPOWER fails to maintain applicable
licensure as a third party administrator and/or such other
licenses or certifications required for MPOWER to perform its
obligations hereunder.
B. In the event of any material adverse change in MPOWER's
insurance coverage, Customer may immediately terminate this
Agreement.
C. In the event of termination of a Health Plan Agreement for any
reason, Customer may terminate this Agreement in whole or in
part effective on the date of termination of the Health Plan
Agreement. Customer shall provide MPOWER with not less than
forty-five (45) days notice of such termination.
D. This Agreement may be terminated if either party becomes
insolvent, or is adjudicated as bankrupt, or its business
comes into possession or control, even temporarily, of any
trustee in bankruptcy, or a receiver is appointed for it, or
it makes a general assignment for the benefit of creditors,
and no interest in this Agreement shall be deemed an asset of
creditors. No interest in this Agreement shall be deemed an
asset or liability of either party, nor shall any interest in
this Agreement pass by operation of law without the consent of
both parties.
6. EFFECT OF TERMINATION. Upon termination of this Agreement for any
reason, the Agreement shall be of no further force or effect, except as to the
rights and obligations of the parties arising out of transactions occurring
prior to the effective date of termination. MPOWER shall cooperate fully with
Customer and all Contracted Health Plans to ensure a smooth transition of
administrative functions assumed by MPOWER hereunder to Customer or directly to
another administrative services vendor. Such cooperation shall include but not
be limited to the following:
A. MPOWER shall continue to pay claims incurred during the term
of this Agreement unless directed by Customer to transfer such
functions to Customer or directly to the new administrative
services vendor.
B. MPOWER. shall transfer, as soon as possible, both
electronically and on diskette, all data, records, and other
information connected with claims processing and other
services provided by MPOWER to Customer or directly to the new
administrative services vendor.
C. MPOWER shall provide a final accounting of claims processed
within thirty (30) days after the end of the month in which
this Agreement was terminated.
VII. GENERAL PROVISIONS
1. OPTION TO LICENSE SOFTWARE. MPOWER hereby grants Customer an option to
license the MPOWER(R)software system in accordance with Attachment A-2
of Exhibit A of this Agreement. Customer may exercise such option only
after completion of the first two (2) years of the initial term this
Agreement, unless MPOWER terminates this Agreement without cause in
accordance with Section VI.3 hereof, in which case, Customer may
exercise this option at that time, regardless of when such termination
occurs. In the event Customer exercises the option pursuant to this
Section, this Agreement shall terminate upon Acceptance of the software
by Customer, as defined in Paragraph 5 of Attachment A-2 of Exhibit A
of this Agreement.
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2. COVENANT NOT TO HIRE. During the life of the Agreement between
Customer and MPOWER, and for a period of one (1) year after termination
of the Agreement by either party for any reason, both parties agree not
to knowingly hire, directly or indirectly, for the purpose of
performing or assisting others in the performance of, any service or
function provided pursuant to this Agreement, who was an employee of
the other party during the life of this Agreement without the prior
written consent of the other party. "Knowingly" as used in the
preceding sentence is intended to refer to the actual knowledge of the
officers and senior management of the parties hereto. This covenant
applies to both parties and to any of their affiliated companies,
including, but not limited to, a parent or subsidiary company. Both
parties agree that calculating damages that a breach of this section
would cause is difficult and agree to liquidated damages in the mount
of [*] Dollars ($[*]) per breach. Injunctive relief shall also be
available to the parties.
3. SUBCONTRACTING. All services proposed by MPOWER will be performed by a
combination of its own staff and designated subcontractor(s). All
subcontractors operating on behalf of MPOWER will be subject to the
terms and. conditions of this Agreement. Customer shall have the fight
to approve all subcontractors prior to their contracting with MPOWER.
4. CUSTOMER SATISFACTION SURVEYS. Customer may periodically conduct
"customer" satisfaction surveys of policyholders, Contracted Health
Plans, and providers with whom Customer has contracted. MPOWER agrees
to record all interactions with these parties and provide those
records, including the callers' telephone numbers, to Customer as
requested. MPOWER will provide other reasonable support to Customer's
customer satisfaction survey activities as requested.
5. INSURANCE. Each party shall obtain and carry general liability
insurance, including errors and omissions coverage, in a form and with
an insurer acceptable to the other, with limits of at least $1,000,000
per occurrence and $3,000,000 in the aggregate. Within sixty (60) days
of execution of this Agreement, each party shall deliver to the other a
certificate of notice which provides that, should either party
discontinue its errors and omissions coverage, the other will be
notified by the errors and omissions carrier. In the event any such
coverage is provided on a claims made basis, such coverage shall be
manufactured (or such party shall procure equivalent tail coverage) for
a period of five (5) years after the termination hereof.
6. BUSINESS RELATIONSHIP. The business relationship of MPOWER to Customer
hereunder is that of an independent contractor and not as partner,
joint venture, employee, or agent.
7. NO ADVERTISING. MPOWER shall not engage in any marketing or advertising
of any Customer products or services without the express written
consent of Customer.
8. NOTICE. Any notice required or permitted hereunder shall be deemed
served if personally delivered or mailed by registered or certified
mail, return receipt requested, postage prepaid, and properly addressed
to the respective party to whom such notice relates at the address set
forth below, or at such other address as shall be specified by notice
given in the manner herein provided.
Notice to Customer: AMERICAN MEDICAL PATHWAYS
* Confidential Treatment Requested
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0000 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Attn: President and Chief Operating Officer
With a copy to: AMERICAN MEDICAL RESPONSE
0000 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Attn: President and Chief Operating Officer
Notice to MPOWER: MPOWER SOLUTIONS, INC.
0000 X. Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Executive Officer
9. PARTIES BOUND. This Agreement shall be binding upon and shall inure to
the benefit of the parties And their respective successors and
permitted assigns. Neither party shall assign or otherwise transfer
this Agreement without the prior written consent of the other party;
provided, however, that either party may assign this Agreement to any
subsidiary of such party (or in the case of Customer any subsidiary of
AMR) in which such party owns an equity position of fifty one percent
(51%) or more, by giving thirty (30) days' prior written notice to the
other party, provided that any such assignee has at least the financial
and other capabilities to perform hereunder as the original parties
hereto.
10. AMENDMENT. This Agreement may be amended at any time but only by the
written agreement of the parties.
11. SEVERABILITY. The invalidity or unenforceability of any term or
provision hereof shall in no way affect the validity or enforceability
of any other term or provision of this Agreement.
12. GOVERNING LAW. This Agreement and the rights, obligations, and remedies
of the parties hereunder shall b e governed by the laws of the state of
Colorado.
13. HEADINGS. The table of contents and headings to the various paragraphs
of this Agreement have been inserted for convenient reference only and
shall not modify, define, limit, or expand the express provisions of
this Agreement.
14. AUTHORIZATION FOR AGREEMENT. The execution and performance of this
Agreement by the parties has been duly authorized by all necessary
laws, resolutions, or corporate action, and this Agreement constitutes
a valid and enforceable obligation of the parties in accordance with
its terms.
15. FORCE MAJEURE. No party shall be liable for any failure to perform its
obligations under this Agreement, including without limitation
compliance with the performance standards set forth in Section II.4, to
the extent that such failure results from any act of God, riot, war,
civil unrest, natural disaster or labor dispute.
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15
16. ENTIRE AGREEMENT. This Agreement, including exhibits and
attachments, contains the entire agreement between the
parties, and this Agreement may not be modified or terminated
except as expressly provided herein or by an agreement in
writing signed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the day and year first set forth above.
AMERICAN MEDICAL PATHWAYS, INC. MPOWER SOLUTIONS, INC.
[ILLEGIBLE] ["MPOWER"]
/s/ XXXXXX X. XXXXXX /s/ XXXX X. XXXXXXX
------------------------------ ---------------------------------
SIGNATURE SIGNATURE
XXXXXX X. XXXXXX XXXX X. XXXXXXX
------------------------------ ---------------------------------
NAME PRINTED NAME PRINTED
VP & CEO, PATHWAYS SENIOR VICE PRESIDENT
------------------------------ ---------------------------------
TITLE TITLE
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EXHIBIT A
SCOPE OF SERVICES
IN CONNECTION WITH
KAISER FOUNDATION HEALTH PLANS
STATEMENT OF WORK
ELIGIBILITY
KEY ASSUMPTIONS:
o A full eligibility data load will be provided to MPOWER from Customer
and Kaiser Foundation Health Plans ("Kaiser") in a format agreed to
between Customer and Kaiser, which shall be in the MPOWER-specific
electronic format
o Customer and the Contracted Health Plan will provide eligibility on an
agreed to monthly date and be loaded by MPOWER within 24 hours of
receipt with each new eligibility load representing the current
"eligible population"
o No retroactive enrollments and disenrollments
o No reconciliation of monthly eligibility
o No retroactive claim adjustments
IMPLEMENTATION SCHEDULE
LIVES ENCOUNTERS ENCOUNTERS
PHASE REGION (000,000) (YEARLY) (MONTHLY) LIVE DATE
----- ------ --------- ---------- ---------- ---------
1 Rocky Mountain Division* [* * * *
2 Southern CA * * * *
3 AMR Other * * * *
4 K.C. * * * *
5 Northern CA * * * *
6 Oregon, Hawaii, WA * * * *
7 Georgia, N.C. * * * *
8 Maryland, Ohio, Wash D.C., VA * * * *
9 NY, MA, VT, CT * * * *]
--------- ---------- ---------
Total [* * *]
*The financial provisions connected with this service area will be implemented
on June 1, 1999.
* Confidential Treatment Requested
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CAPITATION/FUND POOL MANAGEMENT/FINANCIAL
KEY ASSUMPTIONS:
o Set-up and maintain fund pools applicable to Kaiser satellite
locations
o Load and maintain provider and vendor data for 100 network
providers
o Set-up and maintain roll-up hierarchy of Customer transports
by division
o Set-up and maintain roll-up hierarchy of transports by Kaiser
satellite
o Provide 1099s for up to 100 non-Customer network providers
o Perform fee-for-service claims payments and issue remittance
advice with checks to providers (100 checks/me.)
AUTHORIZATIONS/CLAIMS
KEY ASSUMPTIONS:
o 56% of claims will require medical necessity checking (60%
submitted electronically)
o 44% will auto-adjudicate according to role set (85% submitted
electronically)
o Encounter volume breakdown according to Attachment A
o Denials are disbursed to Providers and Kaiser for distribution
o Customer Service is limited to 100 Providers and
Customer/Contracted Health Plan staff
o No EOBs are submitted to members
o Claims are submitted in standard HCFA 1500 or UB92 format
o Maintenance of out of network providers will be limited to 500
providers
o Customer service calls to Contracted Health
Plans/Customer/contracted providers will be limited to 2% of
the volume attributed to Medical Necessity claims. Excess
Customer services requirements shall be managed by Customer
o Medical necessity checking will be limited to Contracted
Health Plan approved protocol compliance and subject to
"prudent person" rule, if applicable
REPORTING
o Provide encounter data reporting electronically
o Limited to reports which are included in standard MPOWER
system format, and as agreed to by the Contracted Health Plan
PRICING ASSUMPTIONS
The following assumptions have been made within the generic pricing model.
1. IMPLEMENTATION - Implementation has been scoped on the basis of a
standard implementation without consideration for custom reporting or
custom interfaces. These customizations would be provided on a time and
materials basis (based on mutually agreed upon scope-of-work orders) or
could be quoted fixed fee if a detailed specification is available.
2. VOLUMES - are based on attached estimated encounter volumes.
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3. Encounter Tiers - were scoped based on anticipated roll-out of the
Kaiser contract and reflect higher fees in the earlier stages of the
contract.
4. Travel & Expenses - Any travel which is required to AMERICAN MEDICAL
PATHWAYS client sites is not included.
5. Training - of AMERICAN MEDICAL PATHWAYS staff in MPOWER system
operations is not included. However, MPOWER shall be financially
responsible for training the individual responsible for providing such
training to AMERICAN MEDICAL PATHWAYS.
6. Dedicated Telecommunications - between MPOWER Denver Operations and
AMERICAN MEDICAL PATHWAYS is included.
7. Location - Computer Operations will be housed in MPOWER facilities with
claims processing staff located in Federal Way, WA and Jacksonville,
FL.
PENALTIES
In accordance with Section II.4.B of this Agreement, MPOWER is responsible for
reimbursing Customer for penalties incurred by Customer due to MPOWER's failure
to meet the performance goals set forth in Section II.4.A of this Agreement.
Such penalty shall be equal to [*] percent ([*]%) of the administrative fees set
forth in Article II hereof in connection with the particular service area(s) (as
defined in the applicable Health Plan Agreement) that has been deemed not to
have met the performance goals set forth in Section II.4 of this Agreement.
* Confidential Treatment Requested
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19
PRICING MODEL
The pricing model is broken down into two components.
1. Fixed infrastructure.
2. Monthly encounter processing.
FIXED INFRASTRUCTURE
The benefit of the MPOWER outsourcing project is the ability of Customer to
bring a fully implemented turnkey system operation in-house at the end of the
processing contract. As such, MPOWER has broken out fixed fee infrastructure
costs as follows:
o Operations Hardware/Software
o MPOWER System Software
o Implementation Services
A description of the hardware and software system is more specifically described
in Attachment A-1, attached to this Exhibit A and made a part of this Agreement.
The cost for these fixed infrastructure fees is $778,000. Software for on-site
Customer workstations will be approximately an additional cost of
$[*]/workstation. Customer shall pay MPOWER [*] Dollars ($[*]) upon execution of
this Agreement, [*] percent ([*]%) of the remaining balance within forty-five
(45) days after execution of this Agreement, and the remaining [*] percent
([*]%) of the balance plus additional costs for workstations upon completion of
initial implementation. If this Agreement is terminated by Customer for cause
prior to completion of implementation, MPOWER shall refund to Customer the
greater of: (a) any amounts not spent by MPOWER on its actual costs of
implementation or (b) [*] percent ([*]%) of the fee paid to MPOWER up until the
effective date of termination.
MONTHLY ENCOUNTER PRICING
TIERS
(MONTHLY)
ENCOUNTERS $/ENCOUNTER
---------- -----------
0 - 9999 $[*]
10000 - 19999 $[*]
20000 - 34999 $[*]
35000+ $[*]
The foregoing encounter numbers include all encounters from all Contracted
Health Plans aggregated.
* Confidential Treatment Requested
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ATTACHMENT A-1
DESCRIPTION OF HARDWARE AND SOFTWARE
IBM KS-6000, Model J-50
MPOWER(R) Managed Care Software Application
IBM Transaction Server
IBM Universal Data Base (UDB)
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ATTACHMENT A-2
TERMS OF LICENSE AGREEMENT
Upon exercise of the Option, the terms of the license agreement ("Agreement")
between MPOWER SOLUTIONS, INC. ("MPOWER") and AMERICAN MEDICAL PATHWAYS, INC.
("AMP") shall be as follows:
1. The software to be licensed by AMP from MPOWER ("the Software") is the
MPOWER Managed Care Software Application.
2. The license to be granted by MPOWER to AMP ("the License") is a
perpetual, nonexclusive, nontransferable (except to affiliates and
successors), license to utilize the Software at all locations and for
any number of stations and/or users.
3. The License shall be of the then latest existing version of the
Software. The License shall include all documentation related to the
Software.
4. The fee for the License (the "License Fee") shall be the lesser of (i)
$[*], or (ii) the then-existing fee for the Software charged by MPOWER
to its best customers, after giving effect to the rate of discount
given by MPOWER to its best customers, less the sum of $[*].
5. The License Fee shall be payable as follows. [*] percent ([*]%) thereof
at execution of a formal License Agreement. [*] percent ([*]%) thereof
upon installation. The remaining [*] percent ([*]%) upon Acceptance,
which shall be defined as sixty (60) days' continuous performance of
the Software in AMP's live environment in accordance with its
specifications and with acceptable system up-time and acceptable system
response time.
6. Support, maintenance, updates and enhancements ("maintenance and
support") shall be provided by MPOWER, at the option of AMP, for up to
five years after Acceptance. The annual fee therefor for the first two
(2) years after Acceptance shall be [*] percent [*]% of the License
Fee. The annual fee for years three (3), four (4) and five (5) after
Acceptance shall be [*] percent ([*]%) plus an amount equal to the
Consumer Price Index ("CPI") in the Denver Colorado Area as published
by the United States Department of Labor, Bureau of Labor Statistics on
the day preceding the first day of each such year.
7. At its option, from time to time during the maintenance and support
period described In paragraph 6 above AMP may obtain additional
Operational Systems Management Services from MPOWER. The fee therefor
shall be the sum of [*] Dollars ($[*]) per month.
8. The License shall be granted to AMP and the maintenance and support
shall be provided to AMP pursuant to a formal license agreement, i.e.
the Agreement referred to above, and upon exercise of the option both
MPOWER and AMP agree to negotiate in good faith toward the drafting,
mutual acceptance and execution of such an Agreement at the earliest
practicable time.
9. The Agreement shall provide at least the following warranties by MPOWER
to AMP: a) that the Software is Year 2000 compliant; b) that the
License does not infringe the patent, copyright, or other legal rights
of any third party; and c) that MPOWER has not and will not introduce
any virus, time-bomb, etc. into the Software.
* Confidential Treatment Requested
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10. If the Agreement limits the liability of MPOWER as to incidental and
consequential damages, such limitation shall not apply to damages
caused by breach of any warranty of MPOWER under the Agreement, nor to
damages due to the Set, are or to the acts or omissions of MPOWER.
11. If the Agreement limits the liability of MPOWER to a maximum dollar
amount, such amount shall not be less than the License Fee.
12. The License Fee shall not include the costs of installation,
implementation nor reasonable training of AMP personnel. Further,
reasonable out-of-pocket travel expenses of MPOWER shall be payable in
addition to the License Fee.
13. The Agreement shall provide for settlement of disputes by arbitration
in Denver, Colorado, and that the Agreement shall be governed by the
internal laws of the state of California.
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EXHIBIT B
IMPLEMENTATION PLAN
NEW ACCOUNT IMPLEMENTATION WORKPLAN SCHEDULE
The following attachment provides a sample implementation plan, indicating key
activities and milestones to be accomplished during the implementation process.
This schedule normally covers a period of ninety (90) days from contract
signing. MPOWER and Customer will work in conjunction with the first Contracted
Health Plan to expedite the standard timeframe, in support of a [*] initial live
date for the first service area (Rocky Mountain Division).
* Confidential Treatment Requested
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%
ID TASK NAME COMPLETE DURATION START* FINISH
-- --------- -------- -------- ------ ------
1 x [*]
2 x
3 x
4 x
5 x
6 x
7 x
8 x
9 x
10 x
11 x
12 x
13 x
14 x
15 x
16 x
17 x
18 x
19 x
20 x
21 x
22 x
23 x
24 x
25
26
27
28
29
30
31
32
33
34
35
36
37
38
* Confidential Treatment Requested
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%
ID TASK NAME COMPLETE DURATION START* FINISH
-- --------- -------- -------- ------ ------
39 [*]
40
41
42
43
44
45
46
47 x
48
49
50
51
52
53
54
55 x
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
* Confidential Treatment Requested
-25-
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%
ID TASK NAME COMPLETE DURATION START* FINISH
-- --------- -------- -------- ------ ------
79 [*]
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
* Confidential Treatment Requested
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%
ID TASK NAME COMPLETE DURATION START* FINISH
-- --------- -------- -------- ------ ------
119 [*]
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
* Confidential Treatment Requested
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%
ID TASK NAME COMPLETE DURATION START* FINISH
-- --------- -------- -------- ------ ------
159 [*]
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
* Confidential Treatment Requested
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%
ID TASK NAME COMPLETE DURATION START* FINISH
-- --------- -------- -------- ------ ------
199 [*]
200
201
202
203
204
205
206
207
208
209
210
211
* Tasks may not be started earlier than this date
* Confidential Treatment Requested
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NON-DISCLOSURE AGREEMENT ("AGREEMENT")
This Agreement is entered into as of ,19__, by and between MPOWER Solutions
Inc., a Delaware corporation ("MPOWER"), with its principal place of business at
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 and___________
____________________________________ ("Consultant") with its principal place of
business located at ____________________________________________________________
__________________________________________________________________________
WHEREAS, each party wishes to disclose and to receive from the other party
certain proprietary information for the purpose of _____________________________
________________________________________________________________________________
_______________________
WHEREAS, the parties wish to protect certain confidential information winch may
be disclosed between them.
NOW THEREFORE, in consideration of access to said information the parties hereto
agree that for a period of three (3) years from the date of this Agreement,
neither party shall copy, reproduce or disclose any information it receives from
the other that is marked "Confidential" to any other person, farm, or
corporation, or use such data for its own benefit, except as provided herein,
and shall use the same degree of care to avoid publication or use of such
information as each employs with respect to its own information of like
importance which it does not desire to have published or disseminated.
Information disclosed orally shall be confirmed in writing within thirty (30)
days to be deemed Confidential hereunder. Within thirty (30) days of receipt of
written request from the other party, each party agrees to return to the other
party, and to delete from any of its electronic storage devices, all
Confidential information received from the other, in whatever form.
The parties hereto agree that information shall not be deemed proprietary and
each party shall have no obligation with respect to any information which
(i) is or falls into the public domain through no wrongful act of the
receiving party;
(ii) is rightfully received from a third party without restriction and
without breach of this Agreement;
(iii) is approved for release by written authorization of the disclosing
party;
(iv) is disclosed pursuant to the requirement of a governmental agency or
operation of law; or
(v) has been previously and independently developed by the receiving party.
Nothing contained in this Agreement shall be construed as granting, conferring,
or implying any rights by license or otherwise.
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
caused this Agreement to be executed as of the date first written above.
MPOWER SOLUTIONS INC. CONSULTANT
By: By:
---------------------------------- ------------------------------------
(Authorized Signature) (Authorized Signature)
Title: Title:
------------------------------- ----------------------------------
Date: Date:
-------------------------------- -----------------------------------
