Exhibit
10.7
REMOTE
RESOURCING AGREEMENT
This
Remote Resourcing Agreement (the “Agreement”) is entered into effective
May 13, 2005 (the “Effective Date”) by and between Healthaxis, Ltd,
a Texas limited partnership, having offices at 0000 X. X’Xxxxxx Xxxx., Xxxxx
000, Xxxxxx, Xxxxx 00000 (“Healthaxis”), and Healthcare BPO Partners,
L.P., a Texas limited partnership corporation having offices at
________________________ (“TakCo”).
R E C I T A L
S:
WHEREAS,
Healthaxis Inc., the parent company of Healthaxis, and Sharad Tak and/or an
entity owned 100% by Sharad Tak (collectively, “Tak”), the principal
shareholder of TakCo, have previously entered into that certain Stock and Warrant
Purchase Agreement dated February 23, 2005 (the “Purchase Agreement”)
pursuant to which Tak is making a substantial investment in Healthaxis; and
WHEREAS,
it is a condition precedent of the closing of the investment transaction
contemplated by the Purchase Agreement that Healthaxis and TakCo enter into this
Agreement pursuant to which TakCo shall provide to Healthaxis and its
affiliates certain remote resources as more particularly described herein.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and of other good and valid consideration, the receipt and sufficiency
of which are hereby acknowledged, Healthaxis and TakCo (collectively, the “Parties”,
and each, a “Party”) hereby agree as follows:
1.
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BACKGROUND
AND OBJECTIVES
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Healthaxis
desires to take advantage when possible of lower cost remote resources,
scalability, redundancy and capacity that TakCo can provide by virtue of TakCo’s
existing and future operations in India.
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First,
Healthaxis desires to have TakCo establish an additional data capture processing
center in India using lower cost resources than are available at its existing
processing centers in Jamaica and Utah. The TakCo India production center will
use the same Healthaxis proprietary technology and production processes and
procedures as the other Healthaxis production centers use, and is intended to
provide scalability and redundancy for this business process.
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Second,
Healthaxis will seek to maximize its use of the TakCo data capture processing center in
India.
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Third,
Healthaxis desires to transfer certain technical, development and support
functions to lower cost remote resources in India.
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Fourth,
Healthaxis desires to transfer its Texas data center and certain technical and
support functions associated therewith to a lower cost facility in the United
States owned and operated by or on behalf of TakCo.
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In
all cases, it is the intention of the Parties that TakCo will provide dedicated
remote personnel and the related physical plant and resources that support the
remote functions, and that Healthaxis will manage and direct the remote
personnel. The Parties shall work together to evolve this agreement to
maintain Services competitive with opportunities that are otherwise available to
Healthaxis in the global market in terms of cost, service level commitments,
quality, productivity, and turn around times.
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The
provisions of this Article 1 are intended to be a general introduction to this
Agreement and are not intended to expand the scope of the Parties’ obligations
or alter the plain meaning of this Agreement’s terms and conditions as
set forth hereinafter. However, to the extent the terms and conditions of this
Agreement are unclear or ambiguous, such terms and conditions are to be
construed so as to be consistent with the background and objectives set forth
in this Article 1.
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2.
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DEFINITIONS
AND DOCUMENTS
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As
used in this Agreement:
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“Affiliate” means,
generally, with respect to any Entity, any other Entity Controlling, Controlled by
or under common Control with such Entity.
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“Agreement” shall
have the meaning given such term in the preamble to this Agreement.
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“Charges” means
the amounts set forth in this Agreement as charges for the Services.
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“Critical
Support Personnel” means those TakCo Personnel identified in Schedule A
as critical to the ongoing success of TakCo’s delivery of the remote
resources to Healthaxis.
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“Data
Center” shall mean the Healthaxis data center in Texas as of the Effective
Date and the TakCo data center in Virginia following the migration of data center
services to TakCo.
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“Developed
Materials” shall mean all Materials developed by TakCo employees in performing
its data capture and applications development and maintenance obligations under
this Agreement.
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“Effective
Date” shall have the meaning given such term in the preamble to this Agreement.
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“Entity” means
a corporation, partnership, joint venture, trust, limited liability company,
association, or other organization or legal entity.
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“Equipment” means
all mainframe, midrange, distributed, network, telecommunications and related
computing equipment procured, provided, operated, supported or used by TakCo or
Healthaxis and required for TakCo to perform the Services.
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“Healthaxis
Data” means any data or tangible information of Healthaxis or any
Healthaxis Affiliate or customer that is provided by Healthaxis or any such
Affiliate to TakCo for use in the performance of its obligations under this
Agreement, including data and information with respect to the businesses,
customers, operations, facilities, products, consumer markets, assets and finances
of Healthaxis or any Affiliate. Examples of Healthaxis Data include any of the
foregoing that are service level measurements, Healthaxis asset information,
charges hereunder, and Healthaxis customer data, including all healthcare claims
data from any source. Service level measurements and charges hereunder are
also the Confidential Information of TakCo.
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“Healthaxis
Equipment” means Equipment owned by or leased to Healthaxis or a Healthaxis
Affiliate that is used in connection with the Services. Unless otherwise
agreed, Healthaxis Equipment shall include the RS/6000 AIX system in India and
all Equipment necessary for the performance of the data center Services in
Virginia other than uninterruptible power supply and physical security.
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“Healthaxis
Licensed Materials” means Third Party Software and other Materials that are
proprietary to third parties to which Healthaxis has obtained a license pursuant to
a written agreement with such third party.
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“Healthaxis
Owned Materials” shall mean: (a) the Materials owned by Healthaxis as of the
Effective Date, and all enhancements and derivative works of such Materials,
including United States and foreign intellectual property rights, including
copyrights, in such Materials, and (b) the intellectual property rights,
including copyrights, in the Developed Materials.
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“Healthaxis
Owned Software” means Software owned by Healthaxis as of the Effective Date,
and all intellectual property rights, including copyrights, in enhancements and
derivative works of such Software, including United States and foreign
intellectual property rights, including copyrights, in such Software, and the
Developed Materials that consist of Software.
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“Healthaxis
Personnel” means the employees, agents, contractors or representatives of
Healthaxis.
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“Healthaxis
Project Executive” shall have the meaning given such term in Section 10.1.
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“Healthaxis
Software” means Software that is either: (a) Healthaxis Licensed Materials;
or (b) Healthaxis Owned Materials.
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“Healthaxis
Third Party Contractors” shall have the meaning given such term in Section 9.2.
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“Laws” mean
all federal, state and local laws, statutes, regulations, rules, executive
orders, supervisory requirements, directives, interpretive letters and other
official releases of or by any government.
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“Losses” mean
all losses, liabilities, damages and claims (including taxes), and all related costs
and expenses (including reasonable legal fees and disbursements and reasonable
costs of investigation, litigation, settlement, judgment, interest and penalties).
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“Malicious
Code” means (i) any code, program, or sub-program whose knowing or intended
purpose is to damage or interfere with the operation of the computer system
containing the code, program or sub-program, or to intentionally halt, disable
or interfere with the operation of the Software, code, program, or sub-program,
itself, or (ii) any device, method, or token whose knowing or intended purpose
is to permit any person to circumvent the normal security of the Software or
the system containing the code.
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“Materials” means,
collectively, Software, literary works, other works of authorship, specifications,
design documents and analyses, programs, program listings, programming tools,
documentation, reports, drawings and similar work product.
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“New
Services” means services, functions and responsibilities that are not described
on Schedule B or otherwise initially provided for in this Agreement.
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“Performance
Standards” means, individually and collectively, the Service Levels and the
other quantitative and qualitative performance standards and commitments for the
Services contained in Schedule C.
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“Personnel” means,
with respect to an Entity, the employees, agents, contractors and representatives
of such Entity.
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“Policy
and Procedures Manuals” means the then current versions of any Healthaxis
documentation that sets forth the policies, procedures, processes, methods and
other requirements for performing the Services designated as such and provided
in writing to TakCo.
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“Proprietary
Information” shall have the meaning given such term in Section 13.3.
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“Required
Consents” means: (a) the consents (if any) required to be obtained (i) to
grant TakCo the right to use and/or access the Healthaxis Owned Software and
Third Party Software in connection with providing the Services or (ii) to
assign or transfer to Healthaxis all intellectual property rights, including the
copyright, in any Developed Materials; and (b) all other consents required from
third parties in connection with TakCo’s provision of the Services.
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“Service
Taxes” means all sales, lease, service, value-added, use, personal property,
excise, consumption, and other taxes or duties that are assessed against either
Party on the provision of the Services as a whole, or on any particular
Service received by Healthaxis from TakCo.
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“Services” means,
collectively the services, functions and responsibilities set forth in Article 4
and Schedule B as they may be supplemented, enhanced, modified or replaced by
mutual agreement during the Term in accordance with this Agreement.
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“Service
Levels” means the quantitative performance standards for the Services set forth
in Schedule C.
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“Service
Level Credits” shall have the meaning given such term in Section 7.2 andSchedule C.
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“Software” means
both the source code and object code of software programs (including compilers,
database management software, applications software, system software, utilities
and other software programs), and all associated documentation and programmers
notes, and all versions, upgrades and enhancements to the same.
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“Staffing
Plan” shall have the meaning given such term in Section 8.7.
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“TakCo
Facilities” means the facilities owned or leased by TakCo at which the
Services are performed.
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“TakCo
Personnel” means Personnel of TakCo who are dedicated to Healthaxis to perform
any Services under this Agreement.
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“TakCo
Project Executive” shall have the meaning given such term in Section 8.2 and
shall describe the TakCo representative responsible for both the day-to-day
relationship with Healthaxis, as well as the delivery of the Services to Healthaxis.
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“Key
TakCo Personnel” means the TakCo Personnel filling the positions designated
in Schedule A as Key TakCo Personnel.
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“Term” means
the five (5) year period that commences as of 12:00:01 a.m., EST, on the
Effective Date and continues, unless this Agreement is terminated as provided
herein or extended as provided in Sections 3.2 or 20.5, in which case the Term
shall end at 12:00 midnight on the effective date of such termination or the date
to which this Agreement is extended.
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“Third
Party Contracts” means all written third party agreements with TakCo that are
necessary to provide the Services from time to time, including, but not limited
to, licenses to Third Party Software, facilities leases, employment agreements,
data and communications service provider agreements.
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“Third
Party Software” means all Software products (and all modifications,
replacements, upgrades, enhancements, documentation, materials and media related
thereto) that are owned by third parties and used by TakCo to provide the Services.
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“Transfer
Assistance Services” means the reasonable termination/expiration assistance
requested by Healthaxis to allow the Services to continue without material
interruption or material adverse effect, and to facilitate the orderly transfer of
the Services to Healthaxis or its designee, as such assistance is further described inSection 4.2.
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“Workstations” means
the personal data processing and computer equipment used by TakCo Personnel to
perform the Services, together with the LAN, WAN up to but excluding the router at
the Data Center and associated infrastructure necessary to support performance of
the Services.
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The
terms defined in this Article include the plural as well as the singular.
Unless otherwise expressly stated, the words “herein,” “hereof,” and
“hereunder” and other words of similar import refer to this Agreement as
a whole and not to any particular Article, Section, subsection or other
subdivision. Article, Section, subsection and Schedule references refer to
articles, sections and subsections of, and schedules to,
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this
Agreement. The words “include” and “including” shall not be
construed as terms of limitation. The words “day,” “month,” and
“year” mean, respectively, calendar day, calendar month and calendar
year, and the words “writing” or “written” mean preserved or
presented in retrievable or reproducible written form. Except as provided in
this Agreement, “writing” or “written” may mean electronic
(including e-mail transmissions where receipt is acknowledged by the recipient,
but excluding voice mail) or hard copy, including by facsimile (with
acknowledgment of receipt from the recipient’s facsimile machine), unless
otherwise stated. Other terms used in this Agreement are defined in the context
in which they are used and shall have the meanings there indicated.
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2.3
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AssociatedContract
Documents
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This
Agreement includes each of the following schedules and their attached exhibits,
all of which are attached to this Agreement and incorporated into this Agreement
by this reference:
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A |
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Key
TakCo Positions and Critical Support Personnel |
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C |
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Service
Levels and Performance Credits |
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F |
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Healthaxis
Equipment, Healthaxis Owned Materials and Healthaxis Licensed Materials |
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This
Agreement shall begin on the Effective Date and continue throughout the Term,
unless terminated earlier or extended in accordance with this Agreement.
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By
giving prior written notice to the other Party not less than 6 months prior to the
expiration date of the initial Term, either Party shall have the right, and the
other party shall have the obligation, to negotiate in good faith during a
period of sixty (60) days the terms and conditions upon which the term of the
Agreement may be extended for a period of five (5) years following the expiration
date of the initial Term. If the Parties are unable to reach agreement upon renewal
terms and conditions during the sixty-day negotiation period, the Agreement
will expire at the end of the initial Term.
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(a) |
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Description.
Commencing on the Effective Date, TakCo and Healthaxis shall jointly develop
and implement a transition plan and schedule pursuant to which the functions
described in Schedule B as currently performed by Healthaxis Personnel will be
transitioned to the dedicated TakCo Personnel. As the designated functions are
transitioned, the TakCo Personnel shall thereafter provide the Services to
Healthaxis in accordance with this Agreement. The Services shall consist of
the services, functions and responsibilities as set forth in this Agreement,
and in all cases to be performed in accordance with the Policy and
Procedures Manuals. Changes to the Policy and Procedures Manuals following the
Effective Date shall be subject to an equitable adjustment to the Staffing Plan or
the Charges. |
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Healthaxis shall
provide the Healthaxis Equipment, Healthaxis Licensed Materials and Healthaxis
Owned Materials. TakCo shall provide the Workstations, the facilities in India
and Virginia. The Parties shall mutually agree on the provision of any other
facilities, Equipment, Third Party Software and other resources necessary for
TakCo to provide the Services. Any changes to the specifications for
facilities, Equipment, Third Party Software or other resources to be used by TakCo
to perform the Service required by Healthaxis shall be subject to an equitable
adjustment to the Charges. |
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(b) |
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Exclusivity.
Subject to Section 11.6 and so long as Healthaxis has not partially terminated
this Agreement under Section 20.2 hereof regarding the applicable Services,
during the Term (i) TakCo shall be the exclusive provider of data capture Services
to be performed outside the United States (excepting the existing data capture
facility in Jamaica) to Healthaxis, and (ii) Healthaxis will not enter into
discussions or agreements with any third parties that would be inconsistent
with its obligation to migrate the data center Services or the technical and
professional resource Services to TakCo. Otherwise, this Agreement shall not be
construed as a requirements contract and this Agreement shall not be
interpreted to prevent Healthaxis from obtaining from third parties, or
providing to itself, any or all of the services described in this Agreement. |
4.2
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Transfer
Assistance Services
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(a) |
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Availability.
TakCo shall provide to Healthaxis or Healthaxis’s designee the Transfer
Assistance Services in this Agreement. |
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(i) |
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TakCo
shall provide such Transfer Assistance Services to Healthaxis or its designee (i)
commencing up to six (6) months prior to the expiration of the Term (including
any renewal Term) or on such earlier date as Healthaxis may request and
continuing for up to six (6) months following the effective date of the
expiration of the Term (as such effective date may be extended pursuant toSection 3.2), (ii) commencing upon any notice of termination of the Term with
respect to all or any portion of the Services, and continuing for up to six
(6) months following the effective date of such termination (as such effective
date may be extended pursuant to Section 20.4), (iii) commencing upon notice of
termination of any portion of the Services no longer required by Healthaxis and
continuing for up to six (6) months following the effective date of such
termination (as such effective date may be extended pursuant to Section 20.4). |
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(ii) |
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TakCo
shall provide Transfer Assistance Services to Healthaxis or its designee
regardless of the reason for the expiration or termination of the Term; provided
that if the Agreement is terminated by TakCo under Section 20.1(b) or (c) for
Healthaxis’s default, TakCo may require Healthaxis to (i) pay in advance
for Transfer Assistance Services provided or performed under this Section 4.2,
(ii) pay all outstanding undisputed Charges, and (iii) establish an escrow
account based on mutually agreed terms to ensure payment of future Charges. |
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(iii) |
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To
the extent Healthaxis requests Transfer Assistance Services, such Services shall be
provided subject to and in accordance with the terms and conditions of this
Agreement. TakCo shall perform the Transfer Assistance Services with at least
the same degree of accuracy, quality, completeness, timeliness, responsiveness
and cost-effectiveness as it provided and was required to provide for the same
or similar Services during the Term. The quality and level of performance of
the Services provided by TakCo following the expiration or termination of the
Term with respect to all or part of the Services or TakCo’s receipt of a
notice of termination or non-renewal shall not be materially degraded or
deficient in any respect. |
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(b) |
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Scope
of Service. As part of the Transfer Assistance Services, TakCo will timely
transfer the control and responsibility for all Services, including documentation,
software support and data management functions, previously performed by or for
TakCo to Healthaxis and/or Healthaxis’ designees. Additionally, TakCo shall
provide any and all reasonable assistance requested by Healthaxis to allow: |
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(i) |
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the
systems associated with the Services to operate efficiently; |
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(ii) |
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the
Services to continue without material interruption or material adverse effect; and |
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(iii) |
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the
orderly transfer of the Services to Healthaxis and/or its designee(s). |
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The
Transfer Assistance Services shall consist of the Services, functions and
responsibilities set forth in this Agreement and all similar services requested
from time to time by Healthaxis.
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In
addition to the initial six (6) month post-termination period specified inSection 4.2(a)(i) above, at Healthaxis’ written request (which must be given
at least 180 days prior to the expiration or termination date), and provided
that Healthaxis is pursuing a migration of some or all of the Services to
itself or a third party, TakCo shall provide to Healthaxis such Services for an
additional period not to exceed six (6) months from the end of such initial
six (6) month period. To the extent Healthaxis requests such Services, Healthaxis
will continue to pay TakCo the Charges.
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Unless
otherwise agreed in writing, if Healthaxis requests that TakCo provide or
perform Transfer Assistance Services in accordance with this Agreement, Healthaxis
will pay TakCo the rates and charges specified in Schedule D (or if no charge
is specified in Schedule D, then a reasonable charge) for TakCo Personnel or
resources required to perform such Transfer Assistance Services. If Transfer
Assistance Services require additional resources beyond those being used to
provide the Services, Healthaxis will pay TakCo for such usage as a New Service.
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(c) |
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Survival
of Terms. This Section 4.2 shall survive termination/expiration of the Term. |
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Healthaxis
is responsible for obtaining all Required Consents. TakCo will cooperate with
and assist Healthaxis in obtaining all Required Consents that may become
necessary from time to time in connection with TakCo’s performance of the
Services or upon the expiration or termination of this Agreement in accordance with
Article 4.
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6.
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FACILITIES,
SOFTWARE, EQUIPMENT, CONTRACTS AND ASSETS ASSOCIATED WITH THE PROVISION OF SERVICES
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(a) |
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Service
Facilities. The Services shall be provided at or from the production and data
center locations owned or leased by TakCo as described in Schedule E, or any
other service location as may be agreed upon by TakCo and Healthaxis from time
to time. |
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(b) |
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Facilities
Requirements. Each TakCo Facility shall meet the minimum security and other
standards as specified in Schedule E. Except with respect to management,
administrators and supervisors, TakCo shall not collocate the TakCo personnel
utilized for performance of the Services with other TakCo personnel performing
services for third parties. |
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(c) |
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Furniture,
Fixtures and Equipment. Except as may be expressly provided in this Agreement,
TakCo shall be responsible for providing all furniture, fixtures, office
equipment, Workstations and facilities management and support services at the
TakCo Facilities needed by TakCo or TakCo Personnel to provide the Services.
Material upgrades, improvements, replacements and additions to such Workstations
shall be subject to an equitable adjustment to the Charges. |
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(d) |
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Other
TakCo Responsibilities Regarding Facilities. TakCo shall be responsible for site
management, site administration and similar services regarding TakCo Personnel
located at the TakCo Facilities, and provide all necessary emergency power supply
and uninterrupted power supply services and all necessary Workstations at TakCo
Facilities. |
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(e) |
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Employee
Services. TakCo shall be responsible for all employee services and the physical
security of the facilities used by TakCo Personnel assigned to Healthaxis to
perform the Services. |
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(f) |
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Facilities
Compliance. TakCo shall provide TakCo Facilities compliant with all applicable
Indian laws, rules, codes, regulations and standards. |
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(g) |
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Healthaxis
Assets at TakCo Facilities. All Healthaxis Equipment, Healthaxis Owned Materials
and Healthaxis Licensed Materials located at TakCo Facilities to enable TakCo
Personnel to perform the Services shall be secured at the TakCo Facilities
and safeguarded in accordance with the Agreement. As of the Effective Date,
Healthaxis shall provide the Equipment, Healthaxis Owned Materials and Healthaxis
Licensed Materials identified in Schedule F. Upon termination or expiration of
this Agreement, or at anytime upon request from Healthaxis, TakCo shall return
such Healthaxis Materials and Healthaxis Equipment in the same condition as the
condition in which the same were first located at TakCo Facilities, reasonable
wear and tear excepted. |
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(a) |
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TakCo
Personnel shall not use Software other than Healthaxis Software or Third Party
Software specifically designated by Healthaxis on their Workstations to perform
TakCo’s obligations under this Agreement. |
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(b) |
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TakCo
shall be responsible for: |
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(i) |
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the
support, administration, operation and maintenance of all Third Party Software to
be used by TakCo on the Workstations in performing the Services, including
payment of required license and maintenance fees. Any changes to the Third Party
Software required by Healthaxis for use in performing the Services shall be
subject to an equitable adjustment in the Charges; and |
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(ii) |
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the
compliance with and performance of all operational and administrative obligations
specified in such licenses and agreements, including nondisclosure obligations.
If any of these are Healthaxis licenses or agreements, this obligation shall be
limited to performance of operational and administrative obligations provided in
writing to TakCo. |
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(c) |
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Healthaxis
shall be responsible for: |
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(i) |
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the
support, administration, operation and maintenance of all Third Party Software to
be used on the servers in India or the Equipment in Virginia by TakCo on the
Workstations in performing the Services, including payment of required license and
maintenance fees; and |
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(ii) |
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the
compliance with and performance of all operational and administrative obligations
specified in such licenses and agreements to the extent applicable to the
Services, including nondisclosure obligations provided in writing to TakCo. |
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(a) |
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TakCo
Personnel shall not use any Equipment other than Workstations specified by
Healthaxis or other Equipment provided by Healthaxis to perform the Services
without the prior written consent of Healthaxis. |
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(b) |
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With
respect to the Healthaxis Equipment to be placed at the TakCo Facilities,
TakCo shall be responsible for cooperating, assisting and advising Healthaxis
in connection with the relocation, testing, installation, rollout, use, support,
management, administration, operation and maintenance of the Healthaxis Equipment
according to an agreed services implementation plan and the Policy and Procedures
Manuals. |
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6.4
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Third
Party Contracts
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TakCo
shall be responsible for the evaluation, procurement, use, support, management,
administration, operation and maintenance of all Third Party Contracts, and the
performance, availability, reliability, compatibility and interoperability of Third
Party Contracts and the services and products provided thereunder, and for
performance of any operational, administrative or contractual obligations imposed
on TakCo under Third Party Contracts necessary to perform TakCo’s
responsibilities hereunder, including, but not limited to, the facilities leases,
maintenance on Workstations, licenses to Software provided by TakCo and
installed on the Workstations, connectivity and telecom agreements, but excluding
Third Party Contracts relating to Healthaxis’ performance of its
responsibilities hereunder, including maintenance on Healthaxis Equipment,
Healthaxis owned Materials or Healthaxis Licensed Materials.
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6.5
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License
to Healthaxis Software and Materials
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As
of the Effective Date, Healthaxis hereby grants to TakCo a non-exclusive, fully
paid-up, irrevocable license during the Term and any Transfer Assistance
Services period to use the Healthaxis Owned Software and Healthaxis Owned
Materials and to prepare derivative works of the same as part of the Services, in
each case solely at the TakCo Facilities, for the express and sole purpose of
providing the Services and any requested Transfer Assistance Services. Healthaxis
Owned Software and Healthaxis Owned Materials shall remain the property of
Healthaxis. TakCo shall not use any Healthaxis Owned Software or Healthaxis
Owned Materials for the benefit of any person or Entity other than Healthaxis.
Except as otherwise requested or approved by Healthaxis, TakCo and its
Subcontractors shall cease all use of Healthaxis Owned Software and Healthaxis
Owned Materials (except as may be provided in Article 14 of this Agreement) upon
the later of the end of the Term or any Transfer Assistance Services period and
shall deliver all source code and documentation relating to such Software upon the
later of the completion of the Term or any Transfer Assistance Services period.
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6.6
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Access
to Third Party Software and Maintenance
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During
the Term, and subject to obtaining any Required Consents, Healthaxis shall grant
to TakCo, for the sole purpose of performing the Services during the Term and
any Transfer Assistance Services period, any rights that may be necessary for
TakCo to access and use Third Party Software and related Healthaxis Third Party
Contracts that Healthaxis has with respect to such Third Party Software and
Third-Party Contracts. TakCo shall comply with the duties, including use
restrictions and those of nondisclosure, imposed on Healthaxis by such licenses
and agreements made available to TakCo in writing. Except as otherwise requested
or approved by Healthaxis (or the relevant licensor), TakCo shall cease all use
of such Third-Party Software and Third-Party Contracts on the later of the end of
the Term or Transfer Assistance Services period and shall return any and all such
Software (including the source code, programmers notes and documentation
pertaining thereto) to Healthaxis and/or any third-party licensor, if and as
applicable.
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Healthaxis
and TakCo shall promptly inform the other Party of any breach of, or misuse or
fraud in connection with, any Third-Party Contract(s), Equipment Lease or
Third-Party Software license of which it becomes aware and shall cooperate with the
other Party to prevent or stay any such breach, misuse or fraud.
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Except
as expressly provided in Section 18.2 of this Agreement, TakCo shall perform the
Services to enable Healthaxis to meet or exceed the Service Levels set forth inSchedule C.
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7.2
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Service
Level Credits
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TakCo
recognizes that its failure to perform the Services (e.g., failure to provide
back-up generator power, to have redundant telecommunications lines to the Data
Center or to provide TakCo personnel at the Indian facility) may prevent Healthaxis
from meeting the Service Levels may subject Healthaxis to contractual penalties
under agreements Healthaxis has with its customers. Accordingly, if TakCo fails
to adhere to the Policy and Procedures Manual or otherwise fails to perform
the Services other than the actions or omissions of Healthaxis or circumstances
that are excused as Force Majeure under Section 18.2, and as a direct result
Healthaxis fails to meet any Service Level for reasons then TakCo shall provide a
credit to Healthaxis calculated in accordance with Schedule C that in any event
will not exceed the actual amount of the credit, performance penalty or similar
amount or adjustment actually paid or provided by Healthaxis to the impacted
Healthaxis customer (“Service Level Credits”). To the extent new
customers are added by Healthaxis for which different Service Levels and Service
Level Credits will apply other than those specified as of the Effective Date,
Healthaxis will advise TakCo of all the specific Service Levels and Service Level
Credits for each such customer pursuant to agreed upon procedures. Any such
additions or modifications to the Service Levels or Service Level Credits shall be
subject to the mutual agreement of the Parties. To the extent Healthaxis
customers’ monetary remedies are limited to service level credits or performance
penalties in their contracts with Healthaxis for a given Service Level breach,
Service Level Credits under this Agreement shall be Healthaxis’ sole monetary
remedy for the breach of the Agreement by TakCo causing the Service Level failure.
|
| |
If
TakCo fails to provide Services and thereby prevents Healthaxis from meeting
the Service Levels, TakCo shall:
|
|
(i) |
|
promptly
investigate and report on the causes of the problem; |
|
(ii) |
|
provide
a Root Cause Analysis of such failure as soon as practicable after such failure; |
|
(iii) |
|
develop
and implement a plan to correct the problem and to begin performing the
Services to enable Healthaxis to meeting the Service Levels as soon as
practicable which may include an equitable adjustment to the Staffing Plan or
Charges; and |
|
(iv) |
|
advise
Healthaxis, as and to the extent reasonably requested by Healthaxis, of the
status of remedial efforts being undertaken with respect to such problem. |
| |
TakCo
shall use diligent efforts to complete the Root Cause Analysis within fifteen (15)
days.
|
7.4Measurement and Monitoring
| |
TakCo
shall implement measurement and monitoring tools and metrics, as well as
standard reporting procedures in accordance with the Policy and Procedures
Manual to measure and report against the applicable Service Levels. TakCo shall
utilize any tools and processes specified by Healthaxis to be used for change
control and problem management in the Policy and Procedures Manual.
|
|
(a) |
|
Approval
of Key TakCo Personnel.
|
|
(i) |
|
Before
assigning an individual to replace any of the Key TakCo Personnel, whether on
an initial assignment or a subsequent assignment, TakCo shall notify Healthaxis
of the proposed assignment, shall introduce the individual to appropriate
Healthaxis representatives, shall provide reasonable opportunity for Healthaxis
representatives to interview the individual, and shall provide Healthaxis with
a resume and such other information about the individual as may be reasonably
requested by Healthaxis. |
10
|
|
|
If Healthaxis
in good faith objects to the proposed assignment for a specified lawful reason,
the Parties shall attempt to resolve Healthaxis’s concerns on a mutually
agreeable basis. If the Parties have not been able to resolve Healthaxis’s
concerns within ten (10) business days, TakCo shall not assign the individual
to that position and shall propose to Healthaxis the assignment of another
individual of suitable ability and qualifications. |
|
(ii) |
|
The
Key TakCo Personnel that have been approved as of the Effective Date are listed inSchedule A. |
|
(iii) |
|
The
Parties may from time to time change the positions designated as Key TakCo
Personnel under this Agreement by mutual agreement of the Parties. |
|
(b) |
|
Continuity
of Key TakCo Personnel. TakCo shall cause each of the Key TakCo Personnel to
devote the necessary time and effort (which will likely fluctuate from time to
time) to the provision of the Services under this Agreement. TakCo shall not
transfer, reassign or remove any of the Key TakCo Personnel except where the Key
TakCo Personnel (i) voluntarily resigns from TakCo, (ii) is dismissed by TakCo
for violations of conditions of employment, (iii) fails to perform his or her
duties and responsibilities pursuant to this Agreement in TakCo’s
reasonable judgment or (iv) dies or is unable to work due to his or her illness or
disability or announce its intention to do so during the specified period without
Healthaxis’s prior approval, which approval shall not be unreasonably
withheld. TakCo shall transfer, reassign or remove one of its Key TakCo
Personnel only after (i) giving Healthaxis at least thirty (30) days’ prior
written notice of such action and (ii) complying with the requirement ofSection 8.1(a)(i) above and Section 8.4 below. |
8.2
|
|
TakCo
Project Executive
|
| |
TakCo
shall designate an “TakCo Project Executive” for Healthaxis. The TakCo
Project Executive shall:
|
|
(i) |
|
be
one of the Key TakCo Personnel; |
|
(ii) |
|
be
a full-time employee of TakCo; |
|
(iii) |
|
devote
sufficient time and effort to managing the Services provided to Healthaxis; |
|
(iv) |
|
serve
as the single point of accountability for the Services; and |
|
(v) |
|
have
day-to-day authority for ensuring customer satisfaction and achieving attainment
of all Service Levels and Performance Standards. |
8.3
|
|
TakCo
Personnel Are Not Healthaxis Employees
|
| |
The
Parties intend to create an independent contractor relationship and nothing in
this Agreement shall operate or be construed as making Healthaxis or TakCo
partners, joint venturers, principals, agents or employees of the other. No
officer, director, employee, agent, Affiliate, contractor or Subcontractor
retained by TakCo to perform work on Healthaxis’s behalf hereunder shall be
deemed to be an officer, director, employee, agent, Affiliate, contractor or
Subcontractor of Healthaxis. Notwithstanding Healthaxis’ rights hereunder,
TakCo, not Healthaxis, has the sole right, power, and authority over the
employment of the TakCo Personnel and the sole obligation to compensate such
TakCo Personnel for all work performed by them on Healthaxis’ behalf pursuant
to this Agreement.
|
11
8.4
|
|
Replacement,
Qualifications and Retention of TakCo Personnel
|
|
(a) |
|
TakCo
shall assign sufficient TakCo Personnel to provide the Services in accordance
with the Staffing Plan as it exists from time to time, and each such TakCo
Personnel shall meet the requirements and have the qualifications as reasonably
specified by Healthaxis. |
|
(b) |
|
In
the event that Healthaxis determines reasonably, lawfully and in good faith
that the continued assignment to Healthaxis of any TakCo Personnel (including
Key TakCo Personnel) is not in the best interests of Healthaxis, then Healthaxis
shall give TakCo written notice to that effect specifying the reason for its
position and requesting that such TakCo Personnel be removed from the account
and whether a replacement is being requested. Promptly after its receipt of such
a request by Healthaxis, TakCo shall have ten business days to investigate the
matters stated in the request and discuss its findings with Healthaxis. If TakCo
determines that Healthaxis’s request is reasonable, lawful and in good
faith, TakCo shall take appropriate action. If requested to do so by
Healthaxis, TakCo shall immediately remove the individual in question from all
Healthaxis activities pending completion of TakCo’s investigation and
discussions with Healthaxis. If, following discussions with TakCo, Healthaxis
still in good faith requests removal/replacement of such TakCo Personnel, TakCo
shall on two weeks advance notice remove the TakCo Personnel, and, then, if
requested, replace such TakCo Personnel with an individual of suitable ability
and qualifications in accordance with the Staffing Plan. |
| |
TakCo
agrees to follow the pre-employment and post-employment screening procedures
applicable to specific functions used by Healthaxis for its own employees
documented in the Policy and Procedures Manual.
|
| |
During
the Term and for a period of six (6) months following the expiration or
termination hereof (including any extended post-termination/expiration transition
period), TakCo will not solicit for employment directly, nor employ, any
current employee of Healthaxis involved in the performance of Healthaxis’s
obligations under this Agreement without the prior written consent of
Healthaxis. During the Term and for a period of six (6) months following the
expiration or termination hereof (including any extended
post-termination/expiration transition period), Healthaxis will not solicit for
employment directly, nor employ, any current employee of TakCo or its Affiliates
involved in the performance of TakCo’s obligations under this Agreement
without the prior written consent of TakCo. For purposes of this Section 8.6,
“current employee” shall be deemed to include an employee of the applicable
Entity who is then currently actively employed by the Entity or who was so
employed by the Entity within the previous six (6) month period.
|
12
8.7
|
|
Assignment
of Personnel
|
| |
TakCo
shall assign to the performance of its obligations under this Agreement the
number of TakCo Personnel specified in a detailed staffing schedule mutually
agreed by the Parties (the “Staffing Plan”). The Staffing Plan shall
be reviewed and updated weekly and shall be maintained in a manner that will permit
TakCo to assign to the Services an adequate number of staff to perform all of TakCo’s
obligations hereunder, including, without limitation, administration, management,
audit support, reporting and meetings requirements. Many of the functions may
require a number of Personnel that is variable in nature and therefore the Parties
shall develop policies and procedures to implement and maintain the Staffing
Plan on an ongoing basis. All changes to the Staffing Plan will be made by
mutual agreement of the Parties based on the expected volumes and business
requirements of Healthaxis. Additional requirements for staffing shall be included
in the Staffing Plan with as much notice as possible and at least reasonable
notice (generally at least thirty (30) days advance notice is preferred unless
otherwise agreed). Healthaxis will provide TakCo with as much notice as
possible and at least reasonable notice (generally at least thirty (30) days
advance notice is preferred unless otherwise agreed) of reductions in the
staffing requirements. Generally, all TakCo Personnel assigned to the Healthaxis
account will be fully dedicated to the Healthaxis account and may not be utilized
by TakCo on non-Healthaxis business; provided however, that it is understood and
agreed that the TakCo Project Executive and other TakCo employees who provide
administrative, management and other overhead functions on behalf of TakCo in
carrying out the obligations of TakCo in this Agreement as well as other TakCo
business are not dedicated or billable to Healthaxis.
|
8.8
|
|
Training.
Healthaxis will provide reasonable training for TakCo Personnel and at least to
the same extent Healthaxis provides training to its other employees based on
the function they perform.
|
9.
|
|
TAKCO
RESPONSIBILITIES
|
9.1
|
|
Policy
and Procedures Manuals
|
| |
TakCo
Personnel shall perform the Services in accordance with the Policy and
Procedures Manuals as specified by Healthaxis from time to time. In the event of
a conflict between the provisions of this Agreement and the Policy and
Procedures Manuals, the provisions of this Agreement shall control unless the
Parties expressly agree otherwise and such agreement is set forth in the
relevant portion of a Policy and Procedures Manual approved by Healthaxis and TakCo
in writing.
|
9.2
|
|
Cooperation
with Healthaxis Third-Party Contractors
|
| |
Subject
to Section 4.1(b), Healthaxis may hire contractors, subcontractors, consultants
and/or other third parties (“Healthaxis Third Party Contractors”) to
perform any tasks related to the Services or any New Services. TakCo Personnel
shall reasonably cooperate with and work in good faith with Healthaxis Third
Party Contractors as directed by Healthaxis, subject to reasonable protection of
TakCo’s Confidential Information and intellectual property and an equitable
adjustment in the Staffing Plan and Charges.
|
|
(a) |
|
Reports.
In addition to reports specified elsewhere in this Agreement, the Parties may
mutually agree on additional reports to be generated by TakCo and delivered to
Healthaxis on an ad hoc or periodic basis. |
|
(b) |
|
Back-Up
Documentation. As part of the Services, TakCo shall provide Healthaxis with
such documentation and other information available to TakCo as may be reasonably
requested by Healthaxis from time to time in order to verify the accuracy of
the reports provided by TakCo. In addition, each Party shall provide the other
Party with documentation and other information reasonably requested by Healthaxis
from time to time related to the Service Levels. |
13
|
(c) |
|
Correction
of Errors. As part of the Services, TakCo shall promptly correct any errors or
inaccuracies in or with respect to the reports, Healthaxis Data or other
deliverables provided to Healthaxis as part of the Services. |
| |
In
order to assist Healthaxis in its business planning, during the Term,
representatives of the senior management of TakCo and representatives of the
senior management of Healthaxis agree to meet in person or telephonically no less
frequently than monthly (provided that such parties shall meet in person no less
frequently than quarterly) (a) to discuss, prioritize and balance Healthaxis’s
needs and TakCo’s resources on the Healthaxis account, including, without
limitation, manpower and personnel resources, and (b) to discuss any other
matters arising under this Agreement. Such meetings will include review of
monthly reports, planned or anticipated activities and changes that might
materially and adversely affect performance, and such other matters as appropriate.
|
| |
TakCo
shall perform the Services in an accurate and timely manner, in accordance with
the Policy and Procedures Manuals.
|
| |
Healthaxis
shall have final authority to promulgate processes, procedures, manners and methods
to be used in performance of the Services and information technology architectures,
standards and plans used to provide or support the Services, and to modify or
grant waivers from such processes, procedures, manners, methods, architectures,
standards or plans, all in accordance with the Policy and Procedures Manuals.
TakCo shall (i) comply with and enforce the processes, procedures, manners,
methods, information technology architectures, standards and plans as specified by
Healthaxis from time to time and delivered to TakCo, provided any changes are
subject to an equitable adjustment to the Staffing Plan and Charges, (ii)
modify the Services as and to the extent necessary to conform to changes to the
same, subject to an equitable adjustment to the Staffing Plan and Charges, and
(iii) obtain Healthaxis’ prior approval for any deviations therefrom.
|
| |
TakCo
shall not make any changes to the Services except in accordance with an
agreed-upon change control procedures contained in the Policy and Procedures
Manuals.
|
|
(a) |
|
TakCo
Records. TakCo shall maintain records, documents and other information required
to meet Healthaxis’ audit rights under this Agreement, including, without
limitation, all information necessary to verify the accuracy of Charges to
Healthaxis included on any invoice provided to Healthaxis (“TakCo Records”).
TakCo shall retain TakCo Records in accordance with TakCo’s records
retention policy as it may be reasonably adjusted from time to time and
provided to Healthaxis in writing upon request; provided, however, that TakCo
shall at all times comply fully with the Policy and Procedures Manual regarding
records retention. |
|
(b) |
|
Operational
Audits. Upon thirty (30) days advance notice from Healthaxis no more than once
annually, TakCo shall provide to Healthaxis (and internal and external auditors,
inspectors, regulators and other representatives that Healthaxis may designate
from time to time) access at reasonable hours to TakCo Personnel, to the
TakCo Facilities at or from which Services are then being provided, and to
TakCo Records, all only to the extent relevant to the Services and TakCo’s
obligation under this Agreement. Such access shall be provided for the purpose
of performing audits and inspections of Healthaxis and its businesses and to
examine TakCo’s performance of the Services, including: (i) verifying the
integrity of Healthaxis Data; (ii) examining the systems that process, store,
support and transmit such data; (iii) examining the controls (e.g.,
organizational controls, input/output controls, system modification controls,
processing controls, |
14
|
|
|
system design
controls and access controls) and the security, back-up practices and
procedures; (iv) examining TakCo’s measurement, monitoring and management
tools; and (v) enabling Healthaxis to meet applicable legal, regulatory and
contractual requirements. As part of the Services, TakCo shall provide any
assistance reasonably requested by Healthaxis or its designee in conducting any
such audit. In addition, TakCo shall reasonably cooperate with Healthaxis by
providing similar records and information necessary for Healthaxis and its
principal officers to meet all applicable quarterly and annual public reporting
and attestation obligations. |
|
(i) |
|
Healthaxis
shall not be given access to the proprietary information of other TakCo
customers or to TakCo locations that are not related to Healthaxis or the
Services or to information that is not reasonably necessary to perform the audit. |
|
(ii) |
|
In
performing audits, Healthaxis shall endeavor to avoid unnecessary disruption of
TakCo’s operations and unnecessary interference with TakCo’s ability to
perform the Services in accordance with the Performance Standards. In the
event that Healthaxis disrupts TakCo’s operations or interferes with TakCo’s
ability to perform the Services, TakCo shall be excused for such disruption and
relieved of Service Levels. |
|
(iii) |
|
Following
any audit under this Section 9.7, Healthaxis shall conduct (in the case of
an internal audit), or request its external auditors or examiners to conduct,
an exit conference with TakCo to obtain factual concurrence with issues
identified in the review. |
|
(iv) |
|
Healthaxis
shall use reasonable efforts to conduct the audit efficiently and expeditiously
and at reasonable business hours. |
|
(e) |
|
TakCo
Response. TakCo and Healthaxis shall meet to review each audit report promptly
after the issuance thereof. TakCo will respond to each audit report in writing
within thirty (30) days from receipt of such report. TakCo and Healthaxis
shall develop and agree upon an action plan to promptly address and resolve any
deficiencies, concerns and/or recommendations in such audit report, and TakCo
shall undertake remedial action in accordance with such action plan and the
dates specified therein. |
|
(f) |
|
Response
to Government Audits. If an audit by a governmental body or regulatory authority
having jurisdiction over Healthaxis or TakCo results in a finding that TakCo or
Healthaxis is not in compliance with any generally accepted accounting
principle or other audit requirement or any rule, regulation or law relating to
the performance of its obligations under this Agreement, TakCo or Healthaxis, as
the case may be, shall, within the time period specified by such auditor,
address and resolve the deficiency(ies) identified by such governmental body or
regulatory authority. |
|
(a) |
|
Use
of Subcontractors. TakCo shall not subcontract any portion of its
responsibilities under this Agreement without Healthaxis’ prior written
approval, which may not be unreasonably withheld by Healthaxis. Prior to
entering into a subcontract with a third party for performance of any portion of
the Services, TakCo shall give Healthaxis reasonable prior written notice
specifying the components of the Services affected, the scope of the proposed
subcontract, and the identity and qualifications of the proposed Subcontractor
and other information Healthaxis may reasonably request in order to consider its
approval. |
|
(b) |
|
TakCo
Responsibility for Subcontractors. TakCo shall remain responsible for obligations
performed by approved Subcontractors and the conduct of Subcontractor personnel
to the same extent as if such obligations were performed by TakCo’s
employees. TakCo shall be Healthaxis’ sole point of contact regarding the
Services, including with respect to payment. |
15
9.9
|
|
Compliance
with Applicable Laws
|
| |
Healthaxis
shall have the right to notify TakCo of changes in Laws applicable to Healthaxis
that may impact the means or manner of providing the Services. TakCo shall
make all reasonable efforts required to implement any modifications to the
Services in accordance with the Policy and Procedures Manual prior to any
applicable deadline imposed by the regulatory or other governmental body having
jurisdiction for such requirement or change subject to an equitable adjustment
in the Staffing Plan and Charges.
|
10.
|
|
HEALTHAXIS
RESPONSIBILITIES
|
| |
In
addition to Healthaxis’ responsibilities as expressly set forth elsewhere in
this Agreement and in the Policy and Procedures Manuals, Healthaxis shall be
responsible for the following:
|
|
(a) |
|
Healthaxis
shall designate, prior to commencement of the Services by TakCo, one individual
to whom all TakCo communications concerning this Agreement may be addressed (the
“Healthaxis Project Executive”), who shall have the authority to act on
behalf of Healthaxis in all day-to-day matters pertaining to this Agreement.
Xxxx X. Xxxxxxxxx is hereby designated as the initial Healthaxis Project
Executive. Healthaxis may change the designated Healthaxis Project Executive
from time to time by providing written notice to TakCo. Additionally, Healthaxis
will have the option, but will not be obligated, to designate additional
representatives who will be authorized to make certain decisions (e.g., regarding
emergency maintenance, execution of decision or change requests, etc.) if the
Healthaxis Project Executive is not available. Furthermore, and notwithstanding
the forgoing, TakCo shall be entitled to act on Services requests made on the
authority of all Healthaxis executives or their designated project managers as
set forth in the Policy and Procedures Manuals. |
|
(b) |
|
Healthaxis
shall cooperate with TakCo by, among other things, promptly making available,
as reasonably requested by TakCo, management decisions, information, approvals
and acceptances so that TakCo may accomplish its obligations and
responsibilities hereunder. |
|
(a) |
|
In
consideration of TakCo’s performance of the Services, Healthaxis agrees to
pay TakCo the applicable Charges set forth in Schedule D. Healthaxis agrees
that TakCo shall be compensated on the basis provided in this Agreement for all
Services rendered. The rates provided in Schedule D are generally on a per person
per month (PPPM) basis. The PPPM rates include all direct labor, general and
administrative costs, benefits, Workstations, telecom and data communications up
to but excluding the router at the Data Center, physical space and facility,
depreciation, insurance and fees, office expenses and an overhead fee factor. The
PPPM Charges for Personnel assigned to the Healthaxis account for only a
portion of any given month will be prorated based on the number of business days
worked by that individual during the month in question. |
|
(b) |
|
Except
as may be otherwise agreed to in writing by the Parties under special
circumstances, Healthaxis shall not pay any amounts for the Services to TakCo in
addition to those set forth in this Article 11 or Schedule D. |
| |
TakCo
acknowledges that, except as expressly provided otherwise in this Agreement or
other instrument signed by an authorized representative of Healthaxis, incidental
expenses that TakCo incurs in performing the Services are included in TakCo’s
Charges and the PPPM rates set forth in this Agreement. Accordingly, such TakCo
expenses are not separately reimbursable by Healthaxis unless Healthaxis has
agreed in advance and in writing to reimburse TakCo for the expense.
|
16
| |
The
Parties’ respective responsibilities for taxes arising under or in connection
with this Agreement shall be as follows:
|
|
(a) |
|
Each
Party shall be responsible for any franchise or privilege taxes on its
business and for any taxes based on its net income or gross receipts. |
|
(b) |
|
Each
Party shall be responsible for any sales, lease, use, personal property or
other such taxes on Equipment, Software or property it owns or leases from a
third party. |
|
(c) |
|
TakCo
shall be responsible for all sales, service, value-added, lease, use, personal
property, excise, consumption and other taxes and duties payable by TakCo on any
goods or services acquired and used or consumed by TakCo in providing the
Services where the tax is imposed on TakCo’s acquisition or use of such
goods or services. |
|
(d) |
|
Healthaxis
shall be responsible for all sales, use, excise, value added, consumption,
service or other taxes assessed on the receipt of the Services as a whole, or
on any particular Service received by Healthaxis from TakCo. |
|
(e) |
|
The
Parties agree to cooperate reasonably with each other to enable each to
determine more accurately its own tax liability and to minimize such liability
to the extent legally permissible. TakCo’s invoices shall separately state the
Charges that are subject to taxation and the amount of taxes included therein.
Each Party will provide and make available to the other any resale
certificates, information regarding out-of-state or out-of-country sales or use of
equipment, materials or services, and other exemption certificates or information
reasonably requested by either Party. |
|
(f) |
|
Each
Party will promptly notify the other of, and reasonably coordinate with the
other, the response to and settlement of, any claim for taxes asserted by
applicable taxing authorities for which the other Party is responsible
hereunder. With respect to any claim arising out of a form or return signed by a
Party to this Agreement, such Party will have the right to elect to control the
response to and settlement of the claim, but the other Party will have all
rights to participate in the responses and settlements that are appropriate to
its potential responsibilities or liabilities. If either Party requests the
other to challenge the imposition of any tax, the requesting Party will
reimburse the other for the reasonable legal fees and expenses it incurs. A Party
will be entitled to a proportional share of any tax refunds or rebates granted
to the extent such refunds or rebates are of taxes that were paid by it. |
|
(g) |
|
Each
Party agrees that it will file appropriate tax returns, and pay applicable
taxes owed arising from or related to the Services in applicable jurisdictions. |
11.4
|
|
New
Services and Projects
|
|
(a) |
|
The
Parties may discuss and mutually agree the addition of New Services under this
Agreement. |
|
(b) |
|
Subject
to Section 4.1(b), Healthaxis may elect to, and reserves the right to, solicit
and receive bids from third parties to perform New Services. If Healthaxis
elects to use third parties to perform New Services, (i) such New Services
shall not be deemed Services under the provisions of this Agreement and (ii)
TakCo shall reasonably cooperate with such third parties in accordance with
Section 9.2 to the extent such cooperation does not impact TakCo’s ability to
provide the Services. |
17
| |
Any
periodic charges that may become due under this Agreement are to be computed on a
calendar month basis, and shall be prorated for any partial month on a calendar day
basis.
|
|
(a) |
|
The
pricing hereunder shall be subject to adjustment only in accordance with the
terms of this Agreement. |
|
(b) |
|
If
Healthaxis believes that Healthaxis could obtain services similar to the
Services at the time from unaffiliated third party providers in the global
marketplace at a significantly lower price, then Healthaxis and TakCo shall
work together in good faith to amend this Agreement to provide for the
establishment of additional offshore processing facilities, including additional
Indian facilities, at a reasonably competitive price (taking into account all
relevant factors, including TakCo’s unrecovered amortized start-up costs for
the Indian facility and transition expenses). |
12.
| |
INVOICING
AND PAYMENT
|
| |
TakCo
will invoice Healthaxis after the first day of each month during the Term for
amounts attributable to Services performed during the preceding month. The
invoice will state separately applicable taxes owed by Healthaxis, if any, by tax
jurisdiction. Healthaxis will pay all undisputed invoiced Charges (subject toSection 12.3) in United States Dollars, by electronic funds transfer to an account
designated by TakCo or by check sent to TakCo at ______within thirty (30) days after
the date of Healthaxis’ receipt of the invoice. Each invoice shall be
accompanied by such details of Charges as are necessary to meet Healthaxis’ requirements
under government accounting rules and regulations, to validate volumes and fees,
and to satisfy Healthaxis’ internal accounting requirements. TakCo shall
include the pricing methodologies, calculations and related data utilized to
establish the Charges.
|
| |
To
the extent a credit (including credits for past overcharges, etc.) may be due to
Healthaxis pursuant to this Agreement, TakCo shall provide Healthaxis with an
appropriate credit against amounts then due and owing.
|
| |
With
respect to any amount to be paid or reimbursed by Healthaxis hereunder, Healthaxis
may set off against such amount any amount that TakCo is obligated to pay
Healthaxis hereunder.
|
|
(a) |
|
Healthaxis
shall pay undisputed Charges when such payments are due under this Article 12
and Schedule D. If Healthaxis in good faith disputes whether TakCo
supplied staff to perform Services that are invoiced, whether the correct PPPM
rate is being applied, or has other disputes as to the amounts invoiced,
Healthaxis shall promptly notify TakCo in writing of any associated disputed
amount and the basis for Healthaxis’ dispute together with any appropriate
information supporting Healthaxis’ position. Healthaxis and TakCo shall
address disputes in accordance with the procedures set forth below and in Article 19. |
|
(b) |
|
Neither
the failure to dispute any Charges or amounts prior to payment nor the failure
to withhold any amount shall constitute, operate or be construed as a waiver
of any right Healthaxis may otherwise have to dispute any Charge or amount or
recover any amount previously paid. |
18
|
(c) |
|
The
parties will work together in good faith to resolve any disputed amount. If
such dispute is not resolved within thirty (30) days after the original payment
due date, the parties will resolve such dispute as provided in Section 19.
Once resolved, Healthaxis will pay any disputed amounts with interest within five
(5) days. |
|
(a) |
|
Invoices
not paid when due shall bear interest on the outstanding balance at the rate of
prime plus two percent (2.0%) per annum (unless restricted by law, in which case
interest shall accrue at the highest legal rate). |
|
(b) |
|
TakCo
shall not suspend or otherwise interrupt the provision of Services to
Healthaxis on the basis of Healthaxis’ withholding of amounts disputed in
good faith (which payment dispute shall be resolved pursuant to the dispute
resolution procedures in Section 12.3 and Section 19), unless authority to do so
is granted by Healthaxis in writing. TakCo may suspend performance under this
Agreement if Healthaxis is past due on payment of amounts other than those
disputed under Section 12.3 in good faith. If TakCo intends to suspend
performance, TakCo will provide Healthaxis with at least fifteen (15) days prior
written notice and an opportunity to cure before actually suspending Service. In
the event of a suspension of Service, TakCo shall resume performance as soon as
possible after the past due payment is made. |
| 13. | |
HEALTHAXIS
DATA AND OTHER PROPRIETARY INFORMATION
|
13.1
| |
Healthaxis
Ownership of Healthaxis Data
|
| |
Healthaxis
Data is and shall remain the property of Healthaxis and its customers, as applicable.
TakCo shall, at the times specified below, promptly deliver to Healthaxis in
the available format and on the media then used by TakCo to provide the
Services: (a) a copy of all Healthaxis Owned Materials and Healthaxis Data (or
such portions as shall be specified by Healthaxis) and (b) a copy of all Developed
Materials (or such portions as shall be specified by Healthaxis). Such deliveries
shall occur: (i) at any time at Healthaxis’ request, (ii) at the end of the Term
and upon the completion of all requested Transfer Assistance Services, or
(iii) with respect to particular Healthaxis Data or Healthaxis Owned Materials, at
such earlier date that Healthaxis requests such data. Thereafter, if requested by
Healthaxis, TakCo shall destroy or securely erase all copies of the Healthaxis
Data and Healthaxis Owned Materials in TakCo’s possession or under TakCo’s
control. TakCo shall not withhold any Healthaxis Data or any of the items
specified in this Section as a means of resolving any dispute. TakCo may
retain one (1) copy of the Healthaxis Data and Healthaxis Owned Developed
Materials to determine TakCo’s or its agents’ rights under this
Agreement. TakCo shall be relieved of its obligations to provide the Services
to the extent that its performance is prevented or hindered by the return,
erasure or destruction of Healthaxis Data or Healthaxis Owned Materials or
reports prepared pursuant to this Section 13.1. Except to the extent expressly
permitted under this Agreement, Healthaxis Data and Healthaxis Owned Materials shall
not be utilized by TakCo for any purpose other than the performance of Services
under this Agreement and shall not be disclosed (except as provided in Article 14),
sold, assigned, leased, licensed or otherwise provided to third parties by TakCo or
commercially exploited by or on behalf of TakCo or any TakCo Personnel. TakCo
shall not possess or assert any lien or other right against or to Healthaxis Data.
|
19
13.2
| |
Safeguarding
Healthaxis Data
|
|
(a) |
|
TakCo
shall establish and maintain environmental, safety and facility procedures, data
security procedures and other safeguards against the destruction, loss or
alteration of Healthaxis Data in the possession of TakCo which are (i) no less
rigorous than those that are commercially reasonable, documented and enforced by
Healthaxis as of the Effective Date, which Healthaxis will provide to TakCo, and
(ii) no less rigorous than those maintained by TakCo for its own information
of a similar nature. Healthaxis shall have the right to establish backup
security for Healthaxis Data and to keep backup copies of the Healthaxis Data
in Healthaxis’ possession at Healthaxis’ expense if Healthaxis so
chooses. No media on which Healthaxis Data is stored may be used simultaneously
to store data of any other customer of TakCo. |
|
(b) |
|
As
part of the Services, TakCo shall be responsible for developing and maintaining
procedures for recovering back-up copies of Healthaxis Data. |
|
(a) |
|
Proprietary
Information. TakCo and Healthaxis each acknowledges that the other possesses
and will continue to possess information that has been developed or received
by it, has commercial value in its or its customer’s business and is not in
the public domain. Except as otherwise specifically agreed in writing by the
Parties, “Proprietary Information” of Healthaxis or TakCo, or their
respective Affiliates shall mean all information and documentation that belongs to
Healthaxis and TakCo and such Affiliates, or agents, respectively, whether
disclosed to or accessed by such entity or Party in connection with this
Agreement and that: (1) has been marked “confidential” or “proprietary” or
with words of similar meaning at the time of disclosure by such entity or Party,
or (2) if disclosed orally or not marked “confidential” or “proprietary” or
with words of similar meaning at the time of disclosure, was subsequently
summarized in writing within sixty (60) days after disclosure by the disclosing
entity or Party and marked “confidential” or “proprietary” or
with words of similar meaning, or (3) consists of information and
documentation included within any of the following categories: (a) customer,
supplier or contractor lists, (b) customer, supplier or contractor information,
(c) information regarding business plans (strategic and tactical), markets and
operations (including performance), (d) information regarding administrative,
financial or marketing activities or results, (e) pricing information, (f)
personnel information, (g) products and product and service offerings (including
specifications and designs), (h) processes, (i) budgets and financial results,
(j) Healthaxis’s third party contracts to which TakCo has had access, (k)
Healthaxis Software and all Developed Materials, and (l) any information derived
from such information. |
|
(1) |
|
TakCo
and Healthaxis shall not disclose, and shall maintain the confidentiality of,
all Proprietary Information of the other Party. Healthaxis and TakCo shall each
use at least the same degree of care to safeguard and to prevent disclosing to
third parties the Proprietary Information of the other as it employs to avoid
unauthorized disclosure, publication, dissemination, destruction, loss or
alteration of its own information (or information of its customers) of a similar
nature, but not less than reasonable care. The Parties may disclose Proprietary
Information to their Affiliates, auditors, attorneys and accountants. Either
Party may disclose Proprietary Information of the other Party to third parties
where: (i) use by such person or entity is authorized under this Agreement;
(ii) such disclosure is necessary for the performance of such person’s or
entity’s obligations under or with respect to this Agreement or otherwise
naturally occurs in such person’s or entity’s scope of responsibility;
(iii) the person or entity (and its applicable officers and employees) agree
in writing to assume the obligations substantially similar to those described in
this Section 13.3; and (iv) the disclosing Party assumes full
responsibility for the acts or omissions of such person or entity and takes
all reasonable measures to ensure that the Proprietary Information is not disclosed
or used in contravention of this Agreement. Each Party’s Proprietary
Information shall remain the property of such Party. |
20
|
(2) |
|
Neither
Party shall: (i) make any use or copies of, or use, the Proprietary Information
of the other Party except as contemplated by this Agreement; (ii) acquire any
right in or assert any lien against the Proprietary Information of the other
Party; (iii) sell, assign, transfer, lease or otherwise dispose of Proprietary
Information to third parties or commercially exploit such information, including
through derivative works; or (iv) refuse for any reason (including a default or
material breach of this Agreement by the other Party) to promptly provide the
other Party’s Proprietary Information (including copies thereof) to the other
Party if requested to do so (in the case of Healthaxis Data, in the form
reasonably requested). Upon expiration or any termination of this Agreement and
completion of each Party’s obligations under this Agreement, each Party
shall return or destroy, as the other Party may direct, all documentation in
any medium that contains, refers to, or relates to the other Party’s
Proprietary Information, and retain no copies. In addition, the Parties shall
take reasonable steps to ensure that their employees comply with these
confidentiality provisions. |
|
(c) |
|
Exclusions. Section 13.3(b)
shall not apply to any particular information that (i) is,
at the time of disclosure to it, in the public domain; (ii) after disclosure
to it, is published or otherwise becomes part of the public domain through
no fault of the receiving Party; (iii) is in the possession of the receiving
Party at the time of disclosure to it; (iv) is received from a third party having
a lawful right to disclose such information; or (v) is independently developed
by the receiving Party without reference to Proprietary Information of the
furnishing Party. In addition, the receiving Party shall not be considered to
have breached its obligations under this Section 13.3 for disclosing
Proprietary Information of the other Party as required to satisfy any legal
requirement of a competent government body, provided that, promptly upon
receiving any such request and to the extent that it may legally do so, such
Party advises the other Party of the Proprietary Information to be disclosed and
the identity of the third party requiring such disclosure prior to making such
disclosure in order that the other Party may interpose an objection to such
disclosure, take action to assure confidential handling of the Proprietary
Information, or take such other action as it deems appropriate to protect the
Proprietary Information. |
|
(d) |
|
Loss
of Proprietary Information. Each Party shall: (i) promptly notify the other
Party in writing of any possession, use, knowledge, disclosure or loss of such
other Party’s Proprietary Information in contravention of this Agreement;
(ii) promptly furnish to the other Party all known details and reasonably
assist such other Party in investigating and/or preventing the recurrence of
such possession, use, knowledge, disclosure or loss; (iii) reasonably cooperate
with the other Party in any investigation or litigation deemed necessary by
such other Party to protect its rights; and (iv) promptly use all commercially
reasonable efforts to prevent further possession, use, knowledge, disclosure or
loss of Proprietary Information in contravention of this Agreement. Each Party
shall bear any costs it incurs in complying with this Section 13.3(d). |
|
(e) |
|
No
Implied Rights. Nothing contained in this Section 13.3 shall be construed
as obligating a Party to disclose its Proprietary Information to the other
Party, or as granting to or conferring on a Party, expressly or impliedly, any
rights or license to any Proprietary Information of the other Party. |
|
(f) |
|
Survival.
The Parties’ obligations of non-disclosure and confidentiality shall survive
the expiration or termination of this Agreement for a period of five (5) years. |
21
| |
Healthaxis
will have unrestricted access to, and the right to review and retain the relevant
portion of all computer or other files containing Healthaxis Data. At no time
will any of such files or other materials or information be stored or held in a
form or manner not readily accessible to Healthaxis. TakCo will provide to the
Healthaxis Project Executive and his designees all passwords, codes, comments,
keys, documentation and the locations of any such files and other materials
promptly upon the request of Healthaxis, including Equipment and Software keys and
such information as to format, encryption (if any) and any other specification
or information necessary for Healthaxis to retrieve, read, revise and/or
maintain such files and information. Upon the request of the Healthaxis Project
Executive, TakCo will confirm that, to the best of its knowledge, all files and
other information provided to Healthaxis are complete and that no material
element, amount or other fraction of such files or other information to which
Healthaxis may request access or review has been deleted, withheld, disguised
or encoded in a manner inconsistent with the purpose and intent of providing
full and complete access to Healthaxis as contemplated by this Agreement.
|
13.5
| |
HIPAA
Privacy and Security
|
| |
Healthaxis’ various
customers and/or their respective clients are considered "Covered
Entities" as that term is defined within the Administrative Simplification
provisions of the Health Insurance Portability and Accountability Act of 1996
("HIPAA"), including the HIPAA privacy regulation, 45 C.F.R. Part 160
and Part 164, Subparts A and E, the Standards for Privacy of Individually
Identifiable Health Information (“Privacy Rule”) and the HIPAA security
standards, 45 C.F.R. Part 164, Subpart C, the Security Standards for the
Protection of Electronic Protected Health Information (“Security Rule”).
In accordance with HIPAA, Healthaxis has entered into agreements with its
customers that meet the requirements of HIPAA, and which require that
Healthaxis enter into a similar agreement with TakCo prior to disclosing any
protected health information to TakCo. Simultaneously with the execution of this
Agreement, TakCo and Healthaxis shall enter into a mutually agreed Business
Associate Agreement (the “HIPAA BA Agreement”) with Healthaxis that meets
the requirements of HIPAA and the obligations of Healthaxis to its customers.
Healthaxis shall maintain the Policy and Procedures Manual so that the Services
if performed in accordance with the Manual shall comply with HIPAA, including the
Privacy Rule and Security Rule. TakCo and its Personnel shall be familiar with
the requirements of HIPAA set forth in the Policy and Procedures Manual and shall
strictly comply with such requirements, including the Privacy Rule and the
Security Rule, in performing the Services and with regard to all protected
health information that is disclosed to them by Healthaxis. Healthaxis will
provide TakCo with appropriate HIPAA awareness training materials for use in
complying, and appropriate training to comply, with this requirement.
|
14.
| |
OWNERSHIP
OF MATERIALS
|
14.1
| |
Healthaxis
Owned Materials
|
| |
Healthaxis
shall be the sole and exclusive owner of the Healthaxis Owned Materials and all
intellectual property rights, including copyright, in all Developed Materials.
|
|
(a) |
|
All
Developed Materials shall be considered works made for hire that are owned by
Healthaxis. If any such Developed Materials may not be considered a work made for
hire under applicable law, TakCo hereby irrevocably assigns to Healthaxis,
without further consideration, all right, title and interest, including any
copyright interest, TakCo may have to such Developed Materials, including United
States and foreign intellectual property rights, including copyrights. TakCo
acknowledges that Healthaxis and its successors and assigns shall have the
right to obtain and hold in their own name any intellectual property rights,
including copyright, in and to such Developed Materials. TakCo agrees to
execute any documents and take any other actions reasonably requested by
Healthaxis to effectuate the purposes of this Section 14.2 at Healthaxis’ expense.
Healthaxis grants to TakCo a non-exclusive, non-transferable, worldwide, limited
right and license to use, execute, reproduce, display, perform, modify and
distribute the Developed Materials for the sole purpose of providing the Services
during the Term and the Transfer Assistance Period pursuant to this Agreement;
provided that this license does not give TakCo the right, and TakCo is not
authorized, to sublicense such Developed Materials or use them for the benefit
of other customers or for any other purpose without Healthaxis’ prior written
consent. |
22
|
(b) |
|
TakCo
shall provide Healthaxis with the source code and documentation for all
Developed Materials which are created in accordance with this Agreement. TakCo
shall provide documentation for all Software that is part of the Developed
Materials sufficient to allow a reasonably knowledgeable and experienced systems
programmer to maintain and support such Materials; (ii) the user documentation
for such Materials will accurately describe in terms understandable by a typical
end user the functions and features of such Materials and the procedures for
exercising such functions and features; and (iii) all Developed Materials shall
have the appropriate source code which matches with the executable object code
version. |
| |
This
Agreement shall not confer upon either Party intellectual property rights in
Materials of the other Party (to the extent not covered by this Article 14).
|
|
(a) |
|
Copyright
Legends. TakCo shall place the Healthaxis copyright legends and notices on all
Developed Materials. |
|
(b) |
|
No
Implied Licenses. Except as expressly specified in this Agreement, nothing in
this Agreement shall be deemed to grant to one Party, by implication, estoppel or
otherwise, license rights, ownership rights or any other intellectual property
rights in any Materials owned by the other Party or any Affiliate of the other Party. |
| 14.5 | |
Healthaxis
Rights Upon Expiration or Termination of Agreement
|
| |
As
part of the Transfer Assistance Services, TakCo shall deliver to Healthaxis all
Developed Materials in the format and medium in use by TakCo in connection
with the Services as of the date of such expiration or termination, and shall
ensure that all delivered source code matches with the then current production
version of the object code as delivered. Following confirmation by Healthaxis
that the copies of the Healthaxis Owned Materials delivered by TakCo are
acceptable and the completion by TakCo of any Transfer Assistance Services for
which such Materials are required, TakCo shall destroy or securely erase all
other copies of such Materials then in TakCo’s possession and cease using such
Materials for any purpose.
|
| |
Nothing
contained in this Agreement shall restrict either Party from the use of any
generic data analysis and evaluation, ideas, concepts, know-how, or techniques
developed or learned by such Party in connection with this Agreement, provided that
in doing so such Party does not disclose Proprietary Information to third
parties or infringe the intellectual property rights of the other Party or third
parties who have licensed or provided materials to the other Party.
|
| 15. | |
REPRESENTATIONS
AND WARRANTIES
|
| |
(a)
TakCo warrants that it shall, as part of the Services, maintain all Workstations
that are necessary to perform the Services: (i) in good operating condition,
subject to normal wear and tear; (ii) undertaking repairs and preventive
maintenance on Workstations for which TakCo is designated to be responsible
hereunder in accordance with the applicable Workstation manufacturer’s
recommendations and requirements; and (iii) performing Third Party Software
maintenance in accordance with the applicable Software vendor’s written
documentation.
|
23
| |
(b)
Healthaxis warrants that it shall, as part of the Services, maintain all
Equipment that Healthaxis provides that is necessary to perform the Services,
including Healthaxis Equipment: (i) in good operating condition, subject to normal
wear and tear; (ii) undertaking repairs and preventive maintenance on such
Equipment for which Healthaxis is designated to be responsible hereunder in
accordance with the applicable Equipment manufacturer’s recommendations and
requirements; and (iii) performing Third Party Software maintenance in
accordance with the applicable Software vendor’s written documentation.
|
|
(a) |
|
Healthaxis
warrants that any Materials and other items provided by or specified by
Healthaxis for TakCo under this Agreement and Developed Materials shall not
infringe, or constitute an infringement or misappropriation of, any U.S. or
foreign patent, copyright, trademark or similar proprietary rights conferred by
contract or by common law or by other applicable law of any third party |
|
(b) |
|
Except
for Materials or other items covered under (a) above, TakCo warrants that any
item provided by and used by TakCo to provide the Services shall not
infringe, or constitute an infringement or misappropriation of, any U.S. or
foreign patent, copyright, trademark or similar proprietary rights conferred by
contract or by common law or by other applicable law of any third party. |
| |
Each
Party represents and warrants to the other that:
|
|
(a) |
|
It
is a corporation or partnership duly incorporated or organized, validly existing
and in good standing under the laws of its state of incorporation or
organization; |
|
(b) |
|
It
has the requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement; |
|
(c) |
|
It
has obtained all licenses, authorizations, approvals, consents or permits
required to perform its obligations under this Agreement under all applicable
federal, state, foreign or local laws and under all applicable rules and
regulations of all authorities having jurisdiction over matters related to
performance under this Agreement; |
|
(d) |
|
The
execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly authorized by the
requisite corporate action on the part of such Party; and |
|
(e) |
|
The
execution, delivery and performance of this Agreement shall not constitute a
violation of any judgment, order or decree; a material default under any
material contract by which it or any of its material assets are bound; or an
event that would, with notice or lapse of time, or both, constitute such a default. |
| |
Each
Party warrants that it shall take commercially reasonable actions and
precautions to prevent the introduction and proliferation, and reduce the effects,
of any Malicious Code into the other Party’s information technology environment
or any system used by TakCo to provide the Services.
|
24
| |
TakCo
shall not insert into the Software or Developed Materials any code which could
be invoked to disable or otherwise shut down all or any portion of the
Software or Healthaxis systems. With respect to any disabling code that may be part
of any Third Party Software, neither Party shall invoke or cause to be invoked
such disabling code at any time, including upon expiration or termination of
this Agreement for any reason, without the other Party’s prior written consent.
|
15.6
| |
Disclaimer
of Warranties
|
| |
EXCEPT
AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES,
WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY SERVICES, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
|
16.
| |
INSURANCE
AND RISK OF LOSS
|
| |
TakCo
agrees to keep in full force and effect and maintain at its sole cost and expense
the following policies of insurance during the term of this Agreement:
|
|
(1) |
|
Any
legally required workers’ compensation or equivalent insurance as required
in the jurisdiction in which the TakCo Facility and TakCo Personnel are
located. |
|
(2) |
|
Reasonable
Commercial General Liability Insurance and Umbrella Liability Insurance in
accordance with Indian law.. |
|
(3) |
|
Reasonable
Employee Dishonesty and Fraud Insurance in accordance with Indian law. |
| |
In
the event Healthaxis requests that TakCo increase its coverage levels or
provide for more specific coverages that may be necessary to meet a specific
obligation to a Healthaxis customer regarding coverage to be maintained by
Healthaxis and its affiliates providing services on behalf of such customer, then
TakCo will obtain such more specific coverages, and the Parties will make an
equitable adjustment to the Charges if necessary to cover the increased cost to TakCo.
|
| |
TakCo
shall upon Healthaxis’ request provide Healthaxis with certificates of
insurance evidencing compliance with this Article 16 (including evidence of
renewal of insurance) signed by authorized representatives of the respective
carriers for each year that this Agreement is in effect. Each certificate of
insurance shall include a statement that the issuing company shall not cancel,
nonrenew, reduce or otherwise change the insurance afforded under the above
policies unless thirty (30) days’ notice of such cancellation, nonrenewal,
reduction or change has been provided to Healthaxis
|
| |
The
obligation of TakCo to provide the insurance specified herein shall not limit
in any way any obligation or liability of TakCo provided elsewhere in this Agreement.
|
| |
Except
as provided below, each Party shall be responsible for risk of loss of, and
damage to, any Equipment, Software or other Materials owned by it. Each Party
shall promptly notify the other of any damage (except normal wear and tear),
destruction, loss, theft or governmental taking of any item of Equipment, Software
or other Materials in the possession of such Party or on its premises of such
Party, whether or not insured against by such Party, whether partial or complete (“Event
of Loss”). For any Healthaxis Event of Loss, TakCo shall cooperate and
assist Healthaxis with respect to the repair or replacement as part of the
Services. TakCo shall be responsible for any such Healthaxis Event of Loss which
results from TakCo’s negligence or willful misconduct.
|
25
| |
In
addition to all other rights and remedies Healthaxis may have under this
Agreement or at law or in equity, TakCo agrees to indemnify, defend and hold
harmless Healthaxis and its officers, directors, employees, agents, Affiliates,
successors and assigns from any and all Losses and threatened Losses arising from
or in connection with any third party claims of the following:
|
|
(a) |
|
TakCo’s
breach of its obligations with respect to Healthaxis Proprietary Information; |
|
(b) |
|
Infringement
or alleged infringement of a patent, trade secret, copyright or other proprietary
rights conferred by contract, common law or by the law of the U.S. or any state
therein or any foreign jurisdiction in contravention of TakCo’s warranties
in this Agreement; |
|
(c) |
|
Claims
by government regulators or agencies for fines, penalties, sanctions or other
remedies arising from or in connection with TakCo’s failure to perform its
responsibilities under this Agreement; |
17.2
| |
Indemnity
by Healthaxis
|
| |
In
addition to all other rights and remedies TakCo may have under this Agreement or
at law or in equity, Healthaxis agrees to indemnify, defend and hold harmless
TakCo and its officers, directors, employees, agents, Affiliates, successors and
assigns from any Losses and threatened Losses arising from or in connection
with any third party claims of the following:
|
|
(a) |
|
Healthaxis’ breach
of its obligations with respect to TakCo’s Proprietary Information and
Healthaxis’ failure to adequately protect its own Proprietary Information; |
|
(b) |
|
Infringement
or alleged infringement of a patent, trade secret, copyright or other proprietary
rights conferred by contract, common law or by the law of the U.S. or any state
therein or any foreign jurisdiction in contravention of Healthaxis’ warranties
in this Agreement; |
|
(c) |
|
Claims
by government regulators or agencies for fines, penalties, sanctions or other
remedies arising from or in connection with Healthaxis’ failure to perform
its responsibilities under this Agreement and with TakCo’s performance of
its responsibilities under this Agreement in accordance with the Policy and
Procedures Manual or other direction by Healthaxis. |
17.3
| |
Additional
Indemnities
|
| |
In
addition to all other rights and remedies the Parties may have under this
Agreement or at law or in equity, TakCo and Healthaxis each agree to indemnify,
defend and hold harmless the other, and their respective Affiliates, officers,
directors, employees, agents, successors and assigns, from any and all Losses and
threatened Losses to the extent they arise from or in connection with any of the
following: (a) the death or bodily injury of any agent, employee, customer,
business invitee, business visitor or other person caused by the negligence or
other tortious conduct of the indemnitor; and (b) the damage, loss or destruction
of any real or tangible personal property caused by the negligence or other
tortious conduct of the indemnitor.
|
| |
In
addition to all other rights and remedies the Parties may have under this
Agreement or at law or in equity, the Parties agree as follows:
|
26
|
(a) |
|
If
any Materials or other item provided or specified by Healthaxis to TakCo in its
provision of the Services or the Developed Materials (except to the extent of TakCo’s
knowing infringement of third party rights in the development of the Developed
Materials) becomes, or in Healthaxis’ reasonable opinion is likely to
become, the subject of an infringement or misappropriation claim or proceeding,
Healthaxis shall promptly take one of the following actions at no charge to
TakCo: (i) secure the right to continue using the Materials, item or Developed
Materials; or (ii) replace or modify the Materials, item or Developed Materials
to make it non-infringing, provided that any such replacement or modification
will not materially degrade the performance or quality of the affected
component of the Services. TakCo will cooperate with and assist Healthaxis in
taking such action. |
|
(b) |
|
Except
for items covered under Section (a) above, if any item provided by and used by
TakCo to provide the Services or any item in the Developed Materials to the
extent of TakCo’s knowing infringement of third party rights becomes the
subject of an infringement or misappropriation claim or proceeding, TakCo shall
promptly take one of the following actions at no additional charge to Healthaxis:
(i) secure the right to continue using the item; or (ii) replace or modify the
item to make it non-infringing, provided that any such replacement or
modification will not materially degrade the performance or quality of the
affected component of the Services. Healthaxis will cooperate with and assist
TakCo in taking such action |
17.5
| |
Indemnification
Procedures
|
| |
With
respect to third party claims, the following procedures shall apply:
|
|
(a) |
|
Notice.
Promptly after receipt by any entity entitled to indemnification of notice of
the commencement of any civil, criminal, administrative or investigative action
or proceeding involving a claim in respect of which the indemnitee may seek
indemnification pursuant to this Agreement, the indemnitee shall notify the
indemnitor of such claim in writing. No delay or failure to so notify an
indemnitor shall relieve it of its obligations under this Agreement. Within
fifteen (15) days following receipt of written notice from the indemnitee
relating to any claim, but no later than five (5) days before the date on which
any response to a complaint or summons is due, the indemnitor shall notify the
indemnitee in writing that the indemnitor elects to assume control of the
defense and settlement of that claim (a “Notice of Election”). |
|
(b) |
|
Procedure
Following Notice of Election. If the indemnitor delivers a Notice of Election
within the required notice period, the indemnitor shall assume sole control over
the defense and settlement of the claim; provided, however, that (i) the indemnitor
shall keep the indemnitee fully apprised at all times as to the status of the
defense, and (ii) the indemnitor shall obtain the prior written approval of the
indemnitee before entering into any settlement of such claim imposing any
obligations or restrictions on the indemnitee or ceasing to defend against
such claim. The indemnitor shall not be liable for any legal fees or expenses
incurred by the indemnitee following the delivery of a Notice of Election;provided, however,
that the indemnitee shall be entitled to employ counsel at its
own expense to participate in the handling of the claim. The indemnitor shall not
be obligated to indemnify the indemnitee for any amount paid or payable by
such indemnitee in the settlement of any claim if (x) the indemnitor has
delivered a timely Notice of Election and such amount was agreed to without the
written consent of the indemnitor, (y) the indemnitee has not provided the
indemnitor with notice of such claim and a reasonable opportunity to respond
thereto, or (z) the time period within which to deliver a Notice of Election
has not yet expired. |
|
(c) |
|
Procedure
Where No Notice of Election Is Delivered. If the indemnitor does not deliver a
Notice of Election relating to any claim within the required notice period,
the indemnitee shall have the right to defend the claim in such manner as it
may deem appropriate, at the reasonable cost and expense of the indemnitor.
The indemnitor shall promptly reimburse the indemnitee for all such reasonable
costs and expenses as they are incurred. |
27
| |
In
the event that an indemnitor shall be obligated to indemnify an indemnitee
pursuant to Sections 17.1 through 17.3 or any other provision of this Agreement,
the indemnitor shall, upon payment of such indemnity in full, be subrogated to
all rights of the indemnitee with respect to the claims to which such indemnification
relates.
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| |
Subject
to the specific provisions of this Article 18, it is the intent of the
Parties that each Party shall be liable to the other Party for any actual
damages incurred by the non-breaching Party as a result of the breaching Party’s
failure to perform its obligations in the manner required by this Agreement.
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|
(a) |
|
Subject
to Section 18.2(c), no Party shall be liable for any default or delay in the
performance of its obligations under this Agreement if and to the extent such
default or delay is caused, directly or indirectly, by fire, flood, earthquake,
elements of nature or acts of God, wars, riots, civil disorders, rebellions or
revolutions, failure of telecommunications carriers, strikes or lockouts or labor
disputes by third parties, or any other similar cause beyond the reasonable
control of such Party (each a “Force Majeure”); provided that the
non-performing Party cannot reasonably circumvent the delay through the use of
commercially reasonable alternate sources, workaround plans or other means. A
labor dispute involving a Party and its own personnel shall not excuse such
Party from its obligations hereunder. |
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(b) |
|
In
such event the non-performing Party shall be excused from further performance or
observance of the obligation(s) so affected for as long as such circumstances
prevail and such Party continues to use commercially reasonable efforts to
recommence performance or observance whenever and to whatever extent possible
without delay. Any Party so prevented, hindered or delayed in its performance
shall immediately notify the Party to whom performance is due by telephone (to
be confirmed in writing within five (5) days of the inception of such delay)
and describe at a reasonable level of detail the circumstances of such Force
Majeure event. |
|
(c) |
|
The
Parties shall mutually agree on any disaster recovery and business continuity
Services to be provided for Healthaxis by TakCo. Upon the occurrence of a Force
Majeure event, TakCo shall, to the extent possible, provide Healthaxis with
reasonable cooperation in Healthaxis’ implementation of its disaster recovery
plan, in each case as described in the Policy and Procedures Manual. TakCo
shall provide such assistance unless prohibited by the Force Majeure. |
|
(d) |
|
If
TakCo fails to provide Services in accordance with this Agreement due to the
occurrence of a Force Majeure event, all amounts payable to TakCo hereunder
shall be equitably adjusted in a manner such that Healthaxis is not required to
pay any amounts for Services that it is not receiving. |
18.3
| |
Limitation
of Liability
|
|
(a) |
|
NEITHER
PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, COLLATERAL,
CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST PROFITS,
REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This Section 18.3(a)
shall not apply in cases of (i) cases of fraud, theft or criminal acts by a
Party, or (ii) any breach, violation or failure to comply with the provisions of Article 13 of this Agreement. |
28
|
(b) |
|
Except
as provided below, the total aggregate liability of either Party for claims
asserted by the other Party under or in connection with this Agreement,
regardless of the form of the action or the theory of recovery, shall be
limited, in aggregate to an amount equal to the total payments received by
TakCo pursuant to this Agreement and/or the Existing Agreements for one year
prior to the month in which the first event giving rise to the liability occurred. |
|
(c) |
|
The
limitations of liability set forth in Section 18.3(b) shall not apply with
respect to (i) any obligation or failure by Healthaxis to pay any amounts due
or past due and owing to TakCo pursuant to the terms of the Agreement; (ii)
Losses by either Party for bodily injury or damage to real property or tangible
personal property; and (iii) either Party’s obligation to indemnify the
other Party as provided in Article 17. |
|
(d) |
|
Failure
by a Party to pay valid and accurate Charges due and payable hereunder will not
be counted toward the liability cap. |
|
(e) |
|
The
following shall be considered direct damages and neither Party shall assert
that they are indirect, incidental, collateral, consequential or special damages
or lost profits to the extent they result directly from either Party’s
failure to perform in accordance with this Agreement: |
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(1) |
|
Costs
and expenses of implementing a workaround in respect of a failure to provide the
Services or any part thereof; |
|
(2) |
|
Costs
and expenses of replacing lost, stolen or damaged Equipment, Software and Materials; |
|
(3) |
|
Costs
and expenses incurred to procure the Services from an alternate source, to the
extent in excess of TakCo’s charges under this Agreement; |
|
(4) |
|
Straight
time, overtime or related expenses incurred by either Party, including overhead
allocations for employees, wages and salaries of additional employees, travel
expenses, overtime expenses, telecommunication charges and similar charges, due to
failure of TakCo to provide all or a portion of the Services incurred in
connection with (1) through (4) above; and |
|
(5) |
|
Payments
or penalties imposed by a governmental body or regulatory agency for failure to
comply with requirements or deadlines. |
19.
| |
CONTRACT
GOVERNANCE AND DISPUTE RESOLUTION
|
19.1
| |
Informal
Dispute Resolution
|
| |
Prior
to the initiation of formal dispute resolution procedures under Section 19.2,
the Parties agree that the Healthaxis Contract Executive and the TakCo Project
Executive will attempt in good faith to resolve all disputes. In the event the
Healthaxis Contract Executive and the TakCo Project Executive are unable to
resolve a dispute in an amount of time that either Party deems reasonable
under the circumstances, such Party may refer the dispute for resolution pursuant
to Section 19.2 below upon written notice to the other Party.
|
| |
Any
unresolved controversy or interpretation involving this Agreement or claim arising
from the Services shall be determined by binding arbitration pursuant to the
commercial arbitration rules of the American Arbitration Association. The
arbitration shall be held in the Dallas, Texas area. If the Parties cannot
agree on a single arbitrator within seven (7) working days of the delivery of the
request for arbitration, then three (3) disinterested arbitrators shall be used,
one to be chosen by each of the Parties, and the third arbitrator chosen by the
first two arbitrators before they enter upon arbitration, to act as umpire. If
either Party fails to appoint an arbitrator, or if the first two arbitrators fail
to appoint a third arbitrator, within seven (7) working days from the date such
obligation arises, either Party may request the Arbitration Association to
appoint the necessary arbitrator(s). Judgment upon any award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. The costs
arising from such arbitration shall be borne and paid as the arbitrator(s)
shall direct. The Parties shall abide by, observe, and perform all directions,
decisions and awards made by the arbitrator(s) and submit in writing information as
the arbitrator(s) shall request. During or prior to the arbitration, the Parties
shall not prosecute or commence any suit or action against the other touching on
any of the matters referred to the arbitrator(s).
|
29
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The
Parties agree that the only circumstance in which disputes between them shall not
be subject to the provisions of this Section 19.2 is where a Party makes a
good faith determination that a breach of the terms of this Agreement by the
other Party is such that the damages to such Party resulting from the breach
will be so immediate, so large or severe, and so incapable of adequate redress
after the fact that a temporary restraining order or other immediate injunctive
relief is the only adequate remedy. If a Party files a pleading with a court
seeking immediate injunctive relief which is challenged by the other Party and
the injunctive relief sought is not rewarded in substantial part, the Party
filing the pleading seeking immediate injunctive relief shall pay all of the
costs and attorney’s fees of the Party successfully challenging the pleading.
|
19.3
| |
Continued
Performance
|
| |
Each
Party agrees that it shall, unless otherwise directed by the other Party,
continue performing its obligations under this Agreement (including providing
all Services and Transfer Assistance Services) while any dispute is being
resolved unless and until the Term ends.
|
| |
This
Agreement and performance under it shall be governed by and construed in
accordance with the applicable laws of the State of Texas, without giving
effect to the principles thereof relating to conflicts of laws.
|
20.1
| |
Termination
for Cause
|
|
(a) |
|
If
TakCo commits a material breach of this Agreement, which breach is not cured
within thirty (30) days after written notice of the breach from Healthaxis,
unless such breach cannot be reasonably cured in such 30 day period, in which
case Healthaxis shall not have the right to terminate if TakCo promptly
proceeds within such 30 day period to commence curing the breach and thereafter
provides a reasonable workaround, or functionally cures the breach, within 60
days from receipt of the cure notice (or such longer period as may be reasonably
necessary when the breach is of a type or nature that cannot be cured within
the 60 day period), then Healthaxis may, by giving written notice to TakCo,
terminate the Term with respect to all of the Services, as of a date specified
in the notice of termination. |
|
(b) |
|
If
Healthaxis commits a material breach of this Agreement (except for material
breaches caused by Healthaxis’ failure to make undisputed payments as set
forth in Section 20.1(c) below), which breach is not cured within thirty (30)
days after written notice of the breach from TakCo, unless such breach cannot
be reasonably cured in such 30 day period, in which case TakCo shall not have
the right to terminate if Healthaxis promptly proceeds within such 30 day
period to commence curing the breach and thereafter provides a reasonable
workaround, or functionally cures the breach, within 60 days from receipt of
the cure notice (or such longer period as may be reasonably necessary when the
breach is of a type or nature that cannot be cured within the 60 day period),
then TakCo may, by giving written notice to Healthaxis, terminate the Term with
respect to all of the Services, as of a date specified in the notice of
termination. |
30
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(c) |
|
If
Healthaxis commits a material breach of this Agreement by failing to make an
undisputed payment to TakCo which is due and payable hereunder, which breach is
not cured within thirty (30) days after such payment becomes due and payable,
then TakCo may, by giving at least ten (10) days prior written notice of its
intent to terminate for non-payment, terminate the Term with respect to all of
the Services, as of a date specified in the notice of termination if payment
of the undisputed amount is not made by the specified termination date. |
20.2
| |
Termination
for Business or Compliance Reasons
|
| |
This
Agreement may be terminated either in whole or in part as to a particular portion
of the Services at any time by giving the other Party at least one hundred eighty
(180) days’ prior written notice designating the termination date if there
are changes in the applicable Laws following the Effective Date that frustrate
the essential purpose of the Agreement.
|
20.3
| |
Healthaxis’ Right
to Extend the Termination Date
|
| |
Except
in the case of a valid termination for cause by TakCo (unless Healthaxis agrees
to pay for Services provided by or for TakCo in advance and cures any payment
default that causes such termination), Healthaxis may elect, upon sixty (60) days’ prior
written notice, to extend the effective date of any expiration/termination or
Transfer Assistance one time, at its sole discretion, provided that the total of
such extension will not exceed one hundred and eighty (180) days following the
originally specified effective termination date without TakCo’s prior written
consent.
|
20.4
| |
Termination
upon a Reduction of TakCo’s Position in Healthaxis Inc.
|
| |
Healthaxis
may terminate this Agreement by giving TakCo notice of the termination at least
90 days prior to the termination date specified in the notice if Tak
Investments, Inc., a Delaware corporation neither (i) owns in the aggregate
twenty-five percent (25%) or more of the common stock of Healthaxis Inc. on a
fully-diluted basis (including all outstanding shares of Healthaxis common stock
and all outstanding securities of any type that are or may become exercisable
for or convertible into shares of Healthaxis common stock), nor (ii) owns in the
aggregate seventy-five percent (75%) or more of the combined number of (x) shares of
Healthaxis Inc. common stock (“Purchased Shares”) purchased by Tak
Investments, Inc. pursuant to that certain Stock and Warrant Purchase Agreement
between Healthaxis and Tak Investments, Inc. dated February 23, 2005 (the “Purchase
Agreement”), (y) shares of Healthaxis Inc. common stock subject to purchase
pursuant to the “Purchased Warrants” (as defined in the Purchase
Agreement) from time to time prior to the expiration date of each Purchased
Warrant, and (z) any shares of Healthaxis Inc. common stock issued upon the
exercise of the Purchased Warrants from time to time.
|
21.1
| |
Binding
Nature and Assignment
|
|
(a) |
|
Binding
Nature. This Agreement will be binding on the Parties and their respective
successors and permitted assigns. |
|
(b) |
|
Assignment.
Neither Party may, or will have the power to, assign this Agreement without
the prior written consent of the other, except that Healthaxis may assign its
rights and obligations under this Agreement to an Entity acquiring, directly or
indirectly, control of Healthaxis, or to an Entity into which Healthaxis is
merged or to an Entity acquiring all or substantially all of Healthaxis’ assets
where the Entity agrees to assume all of the rights and obligations of
Healthaxis hereunder, without the approval of TakCo, and that TakCo may assign
its rights and obligations under this Agreement to an Entity acquiring,
directly or indirectly, control of TakCo, or to an Entity into which TakCo is
merged or to an Entity acquiring all or substantially all of TakCo’s
assets where the Entity (i) acquires 25% or more of the outstanding common
stock of Healthaxis Inc. on a fully diluted basis and (ii) agrees to assume all
of the rights and obligations of TakCo hereunder, without the approval of
Healthaxis. |
31
|
(c) |
|
Impermissible
Assignment. Any attempted assignment that does not comply with the terms of this
Section shall be null and void. |
21.2
| |
Entire
Agreement; Amendment
|
| |
This
Agreement, including any Schedules and Exhibits referred to herein and attached
hereto, each of which is incorporated herein for all purposes, constitutes the
entire agreement between the Parties with respect to the subject matter
hereof. There are no agreements, representations, warranties, promises, covenants,
commitments or undertakings other than those expressly set forth herein. This
Agreement supercedes all prior agreements, representations, warranties, promises,
covenants, commitments or undertakings, whether written or oral, with respect to
the subject matter contained in this Agreement. No amendment, modification,
change, waiver or discharge hereof shall be valid unless in writing and signed
by an authorized representative of the Party against which such amendment,
modification, change, waiver or discharge is sought to be enforced.
|
21.3
| |
Compliance
with Laws and Regulations
|
|
(a) |
|
TakCo
shall perform its obligations in a manner that complies with Laws applicable to
its business, including without limitation identifying and procuring required
permits, certificates, approvals and inspections. If a charge of non-compliance
by TakCo with any such Laws occurs, TakCo shall promptly notify Healthaxis of such
charges in writing. |
|
(b) |
|
Healthaxis
shall perform its obligations under this Agreement in a manner that complies
with Laws applicable to its business, including without limitation identifying
and procuring required permits, certificates, approvals and inspections. If a
charge of non-compliance by Healthaxis with any such Laws occurs, Healthaxis
shall promptly notify TakCo of such charges in writing. |
| |
All
notices, requests, demands and determinations under this Agreement (other than
routine operational communications) shall be in writing and shall be deemed duly
given (i) when delivered by hand, (ii) one (1) day after being given to an
express courier with a reliable system for tracking delivery, (iii) when sent by
confirmed facsimile with a copy sent by another means specified in this Section 21.4,
or (iv) six (6) days after the day of mailing, when mailed by registered or
certified mail, return receipt requested, postage prepaid and addressed as follows:
|
| |
In
the case of Healthaxis:
|
| |
Healthaxis
0000 Xxxxx Xxxxx Xxx 000
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxxx,
President
|
| |
Healthaxis
0000 Xxxxx Xxxxx Xxx 000
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: J. Xxxxx Xxxx,
SVP & General Counsel
|
32
| |
In
the case of TakCo:
|
| |
|
| |
__________________________
__________________________
__________________________
|
| |
A
Party may from time to time change its address or designee for notification
purposes by giving the other Party prior written notice of the new address or
designee and the date upon which the change will become effective.
|
| |
This
Agreement may be executed in several counterparts, all of which taken together
shall constitute one single agreement between the Parties hereto.
|
| |
The
article and section headings used herein are for reference and convenience only
and shall not be considered in the interpretation of this Agreement.
|
| |
In
the event that any provision of this Agreement conflicts with the law under which
this Agreement is to be construed or if any such provision is held invalid or
unenforceable by a court with jurisdiction over the Parties, such provision shall
be deemed to be restated to reflect as nearly as possible the original intentions
of the Parties in accordance with applicable law. The remaining provisions of this
Agreement and the application of the challenged provision to persons or
circumstances other than those as to which it is invalid or unenforceable shall
not be affected thereby, and each such provision shall be valid and enforceable to
the full extent permitted by law.
|
21.8
| |
Consents
and Approval
|
| |
Except
where expressly provided as being in the sole discretion of a Party, where
agreement, approval, acceptance, consent, confirmation, notice or similar action by
either Party is required under this Agreement, such action shall not be
unreasonably delayed or withheld. An approval or consent given by a Party under
this Agreement shall not relieve the other Party from responsibility for complying
with the requirements of this Agreement, nor shall it be construed as a waiver of
any rights under this Agreement, except as and to the extent otherwise expressly
provided in such approval or consent.
|
21.9
| |
Waiver
of Default; Cumulative Remedies
|
|
(a) |
|
A
delay or omission by either Party hereto to exercise any right or power under this
Agreement shall not be construed to be a waiver thereof. A waiver by either of
the Parties hereto of any of the covenants to be performed by the other or any
breach thereof shall not be construed to be a waiver of any succeeding breach
thereof or of any other covenant herein contained. All waivers must be in
writing and signed by the Party waiving its rights. |
|
(b) |
|
Except
as otherwise expressly provided herein, all remedies provided for in this
Agreement shall be cumulative and in addition to and not in lieu of any other
remedies available to either Party at law, in equity or otherwise. |
33
| |
Any
provision of this Agreement which contemplates performance or observance
subsequent to any termination or expiration of this Agreement shall survive any
termination or expiration of this Agreement and continue in full force and effect.
|
| |
Neither
Party shall use the other Party’s name or xxxx or refer to the other Party
directly or indirectly in any media release, public announcement or public
disclosure relating to this Agreement, without the prior written consent of the
other Party. Notwithstanding the foregoing, either Party may reference and disclose
this Agreement and its relationship with the other Party in any public filings when
required by law or in accordance with customary or recommended practice.
|
| |
Each
Party agrees that it shall not, without the other Party’s prior written
consent, use any of the names, service marks or trademarks of each other or
Affiliates in any of its advertising or marketing materials.
|
| |
The
Parties acknowledge that certain Software and technical data to be provided
hereunder and certain transactions hereunder may be subject to export controls
under the laws and regulations of the United States and other countries. No
Party shall export or re-export any such items or any direct product thereof or
undertake any transaction in violation of any such laws or regulations.
|
21.14
| |
Third
Party Beneficiaries
|
| |
This
Agreement is entered into solely between, and may be enforced only by, Healthaxis
and TakCo. This Agreement shall not be deemed to create any rights or causes
of action in or on behalf of any third parties, including without limitation
employees, vendors and customers of a Party, or to create any obligations of a
Party to any such third parties.
|
21.15
| |
Order
of Precedence
|
| |
In
the event of a conflict, this Agreement shall take precedence over the Schedules
attached hereto.
|
| |
Each
Party covenants and agrees that, subsequent to the execution and delivery of this
Agreement and without any additional consideration, each Party shall execute
and deliver any further legal instruments and perform any acts that are or may
become necessary to effectuate the purposes of this Agreement.
|
| |
The
Parties each acknowledge that the terms and conditions of this Agreement have
been the subject of active and complete negotiations, and that such terms and
conditions should not be construed in favor of or against any Party by reason
of the extent to which any Party or its professional advisors participated in
the preparation of this Agreement.
|
[Signatures
Appear On Next Page]
34
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
respective duly authorized representatives as of the Effective Date.
| Healthaxis,
Ltd. |
|
Healthcare
BPO Partners, L.P. |
| |
|
|
|
|
| |
|
|
| |
|
|
| By: Healthaxis
Managing Partner, LLC |
|
By: Healthcare
Investments, LLC |
| |
|
|
|
|
| |
By: /s/ Xxxxx X. XxXxxx |
|
By: /s/
Sharad Tak |
| |
Xxxxx X. XxXxxx |
|
|
Name: Sharad Tak |
| |
President |
|
|
Title: Managing Member |
| |
May 13, 2005 |
|
|
May 13, 2005 |
35
