Exhibit (10.7)
AGREEMENT
This Agreement is made by and between NATIONAL RESEARCH
CORPORATION, a Nebraska corporation ("NRC"), and THE PERMANENTE MEDICAL
GROUP, INC., a California corporation ("TPMG"), and XXXXXX FOUNDATION
HEALTH PLAN, INC., a California nonprofit public benefit corporation
("KFHP"), for the benefit of its Northern California Region. TPMG and
KFHP are hereinafter referred to together as "Kaiser".
WHEREAS, the parties to this Agreement have entered into a
Memorandum of Understanding dated January 18, 1994 ("MOU"), which
describes the terms of an arrangement between the parties regarding a
Member/Patient Survey Project to be undertaken by NRC for Kaiser, and in
an Addendum to the MOU describes a Competitor Benchmark Study and the
trial of certain Listening System Software (TM); and
WHEREAS, the parties desire to enter into this Agreement to set
forth the terms and conditions governing the transaction as described
herein which shall supersede the MOU.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, and intending to be legally bound, the
parties agree as follows:
1. SCOPE OF SERVICES/CHANGE REQUESTS.
(a) NRC shall provide services to Kaiser as described in the
Task Specification for Member/Patient Survey Project, attached hereto as
Attachment A, which Attachment is incorporated in this Agreement by this
reference. Additionally, NRC shall provide services to Kaiser as
described in the Task Specification for Competitor Benchmark Study,
attached hereto as Attachment B, which Attachment is incorporated in this
Agreement by this reference. Such Task Specifications may, during the
term of this Agreement, be amended by mutual agreement of the parties with
such amendments to be in writing and executed by authorized
representatives of the parties. NRC shall also provide KFHP's Northern
California Regional Office the Listening System Software (TM) on a trial
usage basis as described in Attachment C, which Attachment is incorporated
in this Agreement by this reference.
(b) Change Requests. Kaiser may request changes to the
services described in Section 1(a) above during the course of this
Agreement. NRC shall make reasonable efforts to accommodate such changes
within the scope and schedule of this Agreement. If any requested change
is of such a material nature as to result in additional costs and expenses
or delay in the schedule, NRC shall immediately notify Kaiser of the
amount of such additional cost and the impact on the schedule. Kaiser
shall promptly notify NRC of its desire to implement such change. No such
change, however, shall be implemented until the details and cost of such
change is agreed upon in writing by NRC and Kaiser.
2. ASSIGNED PERSONNEL.
(a) NRC will provide qualified and trained personnel to perform
the Task Specifications, Attachments A and B hereto, at NRC's offices in
Lincoln, Nebraska. NRC shall designate a project leader who will be the
principal contact between Kaiser and NRC. NRC project leader will be
Xxxxx Copper. Kaiser will also designate a principal contact person.
Xxxxxx'x principal contact person will be J. Xxxx Xxxxxx. NRC shall
assign and direct its employees in such a manner as necessary to perform
the Task Specifications, Attachments A and B hereto.
(b) During the Initial Term or any renewal term of this
Agreement, and continuing for a period of one (1) year thereafter, NRC and
Kaiser agree not to hire, nor to engage on contract, nor to solicit the
employment of any of the other's employees with whom there is contact
during an assignment under this Agreement, without the written
authorization of the other.
3. TERM. This Agreement shall become effective as of February
1, 1994 (the "Effective Date"), and shall continue in effect through *
unless earlier terminated by one of the parties hereto in accordance with
the provisions of paragraph 6 hereinbelow (the "Initial Term").
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
4. COMPENSATION AND TERMS OF PAYMENT. The compensation
payable by Kaiser to NRC shall be as follows:
(a) The compensation for performance by NRC of the Task
Specification for the Member/Patient Survey Project, as specified in
Attachment A hereto, shall be * Dollars ($ * ) for the period commencing
with the Effective Date of this Agreement through *, and the compensation
to be paid to NRC by Kaiser for the performance of such Project during the
period of * through * shall be * Dollars ($ * ). The compensation
payable by Kaiser to NRC for the period from the Effective Date through *
is payable as follows:
On or before * $ *
Upon initiation of sampling $ *
On * and the first day of each
month thereafter (eight payments)
through * $ *
Final payment for *, upon receipt
and acceptance by Kaiser of the full
* sample data set and performance
reports for facilities and departments $ *
The compensation payable by Kaiser to NRC for the period from * through *
is payable as follows:
Commencing * and as of
the first day of each month through
* $ *
Final payment for *, upon receipt
and acceptance by Kaiser of the full
* sample data set and performance
reports for facilities and departments
(no earlier than * ) $ *
(b) The compensation for performance by NRC of the Task
Specification for the Competitor Benchmark Study, as set forth in
Attachment B hereto, shall be the sum of * Dollars ($ * ), payable
one-half upon execution of this Agreement and one-half on or before *.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
(c) In addition to the payments set forth in subparagraphs 4(a)
and (b) hereof, Kaiser shall reimburse NRC for NRC's actual costs for
reasonable travel expenses (including air travel costs, hotel, meals and
incidental expenses) for NRC personnel, and overnight express delivery
service charges when such travel expenses or overnight express deliveries
are requested by representatives of Kaiser. In-house photocopying,
routine postage and telephone (within California) are excluded from
reimbursable expenses and shall not be charged to Kaiser. It is estimated
that air travel, hotel, meals and incidental expenses for a two-day trip
to the offices of Xxxxxx'x Northern California Region will approximate One
Thousand Five Hundred Dollars ($1,500), and four to six such trips will be
required during each twelve-month period. NRC will xxxx Xxxxxx for the
foregoing out-of-pocket expenses on a monthly basis and shall furnish to
Kaiser copies of bills for which expense reimbursement is being requested.
Reimbursable expenses shall not exceed * Dollars ($ * ).
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
(d) Records. NRC shall maintain complete and accurate
accounting records, in a form in accordance with generally accepted
accounting principles, to substantiate NRC's fees and expenses under this
Agreement. Kaiser shall have the right to review these records during the
term of this Agreement. If this Agreement is subject to the provisions of
Section 952 of P.L. 96-499, which governs access to books and records of
subcontractors of services to Medicare providers where the cost or value
of such services under the contract exceeds Ten Thousand Dollars
($10,000.00) over a twelve (12) month period, then NRC shall permit
representatives of the Secretary of the Department of Health and Human
Services and the Comptroller General, in accord with criteria and
procedures contained in applicable Federal regulations, to have access to
their books, documents and records as necessary to verify the cost of
services provided under this Agreement.
(e) Other charges in compensation or expense reimbursement
pursuant to this paragraph shall occur only on mutual written agreement of
the parties. In no event will equipment or software purchased by NRC be
billed to or reimbursable by Kaiser without the prior written consent of
Kaiser.
(f) Kaiser and NRC acknowledge and agree that increases in the
postal rates may be implemented by the United States Postal Service
subsequent to the Effective Date. Any such postal rate increases will be
passed through to Kaiser on a dollar-for-dollar basis. Other changes in
compensation or expense reimbursement pursuant to this paragraph shall
occur only on mutual written agreement of the parties.
5. INVOICES. NRC will invoice Kaiser for compensation payable
to NRC for services rendered in connection with the performance of the
Task Specifications and for all reimbursable out-of-pocket expenses.
Kaiser shall make payment to NRC in U.S. Dollars of all amounts due and
owing within * ( * ) days after receipt of invoice. Kaiser shall pay a
late payment fee of * percent (*%) per month for the outstanding balance
of any amount past due for more than three (3) business days after receipt
of notice from NRC that such amount is past due.
6. TERMINATION.
(a) Termination For Default. If either NRC or Kaiser shall at
any time during the Initial Term, or any renewal term hereof, fail or
refuse to perform in accordance with any material provision of this
Agreement, then the other party may serve upon such defaulting party a
notice of intention to terminate this Agreement, which notice shall
specify the claimed neglect, failure or refusal, and shall be served in
accordance with the NOTICES section of this Agreement. If within * ( * )
days after the date of providing such written notice, the defaulting party
shall not have cured the default indicated in such Notice, or presented a
plan acceptable to the other party to cure such default, then upon the
expiration of such * ( * ) day period, the other party may, at its
option, elect to terminate this Agreement. In the event of termination by
Kaiser due to NRC's uncured default, NRC shall, within * ( * ) days after
termination, refund to Kaiser all amounts paid by Kaiser for NRC's
services but not yet performed through the date of termination, including
any prepaid out-of-pocket expenses reimbursed by Kaiser through the date
of termination. The right of either party to terminate this Agreement for
default shall not be affected by such party's failure to take action with
respect to any previous default.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
(b) Termination Without Cause. At its option and for its
convenience, Kaiser may terminate this Agreement for any reason upon * ( *
) days written notice to NRC. NRC shall be entitled to payment for all
amounts specified herein for its services performed through the date of
termination, and reimbursed for its out-of-pocket expenses through the
date of termination, including expenses incurred for inventory of
materials relating to this Agreement which could not otherwise be used by
NRC customers.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
(c) Actions on Termination. NRC shall not perform any more
services or incur any further costs claimed to be reimbursable hereunder
after the date of the termination notice, without the prior written
approval of Kaiser. Upon termination, NRC shall act in such a manner as
to facilitate Xxxxxx'x or any new consultant's assumption of duties;
provided however, that NRC shall not be obligated to provide to any new
consultant any NRC proprietary materials or NRC confidential information
utilized by NRC in its performance pursuant to this Agreement.
7. CONFIDENTIAL INFORMATION. NRC acknowledges that it and its
employees, agents or representatives may, in the course of performance of
this Agreement, require access to proprietary or confidential information
of Kaiser and will be exposed to or acquire information which is
proprietary to or confidential to Kaiser, its affiliated companies,
vendors or Kaiser members or employees. This information may include data
relating to survey results, identities of Kaiser members or employees
involved in the survey, financial data, personnel records, computer
programs, marketing information and, to the extent marked proprietary or
confidential, any other information relating to the business affairs of
Kaiser. All such information obtained by NRC or its employees, agents and
representatives, shall be deemed to be the confidential and proprietary
information of Kaiser ("Confidential Information"). NRC agrees to hold
such information in strict confidence and not to disclose such information
for any purposes other than the provision of services to Kaiser under this
Agreement and to take appropriate actions by instruction or agreement with
each of its employees, contractors, agents and representatives to keep
such information confidential and NRC will, upon written request by
Kaiser, have all NRC employees, contractors, agents and representatives
performing work under this Agreement sign the confidentiality agreements
satisfactory to Kaiser. NRC further acknowledges that Kaiser has a legal
obligation to keep all Confidential Information confidential, including
without limitation, all patient records, medical records, test results and
personnel records; and that the unauthorized disclosure of the same could
irreparably damage Kaiser and its affiliated corporations; and that by
reason of its duties under its Agreement, NRC may come into possession of
such Confidential Information. If NRC breaches this provision, damages
may not be an adequate remedy and Kaiser shall be entitled to injunctive
relief to restrain such breach, threatened or actual. Upon termination of
this Agreement, NRC shall return to Kaiser all Confidential Information in
NRC's possession. This paragraph shall survive the termination of this
Agreement.
8. TITLE AND POSSESSION. NRC does not convey to Kaiser, nor
does Kaiser obtain any rights in any software programs, systems, data or
materials provided by NRC in the course of performing this Agreement. NRC
shall retain all rights, title and interest in the Listening System
Software (TM) provided to Kaiser for its use as stated in Attachment C
hereto. Kaiser is hereby granted all rights of ownership and the right to
produce or copy all of the survey response data and periodic reports
provided by NRC to Kaiser as specified in the Task Specification for
Member/Patient Survey Project, Attachment A hereto, or the Task
Specification for Competitor Benchmark study, Attachment B hereto. All
survey forms, results, data, member lists; all other information and
materials provided by Kaiser; and all survey reports and other reports
produced by NRC under this Agreement, shall remain the property of Kaiser
and NRC shall return all such information and material to Kaiser upon
completion or earlier termination of this Agreement unless otherwise
instructed in writing by Kaiser.
9. WARRANTY.
(a) NRC warrants that the services provided hereunder will be
performed in a good and workmanlike manner, and that the deliverables
provided by NRC to Kaiser will conform to the applicable Task
Specification. NRC's sole obligation under this warranty is to correct
and adjust the deliverables which, within a reasonable time, are found to
not conform to this warranty.
(b) NRC does not warrant or represent that the services or
products provided pursuant to this Agreement will be capable of achieving
any particular result in Xxxxxx'x business, or that all errors, defects or
deficiencies can or will be found or corrected, or that any deliverables
which are the subject of the Task Specification will be error free. NRC'S
ENTIRE LIABILITY AND XXXXXX'X EXCLUSIVE REMEDY FOR DEFECTIVE PERFORMANCE
OR NON-PERFORMANCE UNDER THE WARRANTY CONTAINED IN THIS SECTION 9 SHALL BE
LIMITED TO CORRECTION AND ADJUSTMENT OF OR SUBSTITUTION FOR THE SERVICES
OR PRODUCTS WHICH DO NOT COMPLY WITH THIS WARRANTY, PROVIDED THAT NRC
PROMPTLY AND IMMEDIATELY CORRECT, ADJUST OR SUBSTITUTE THE SERVICES OR THE
PRODUCTS WHICH DO NOT COMPLY WITH THIS WARRANTY AND FURTHER PROVIDED THAT
KAISER SHALL ALLOW A REASONABLE OPPORTUNITY FOR NRC TO PROVIDE SUCH REMEDY
AND SHALL ASSIST NRC, AT NRC'S EXPENSE, IN IDENTIFYING AND ANALYZING SUCH
DEFECTS OR DEFICIENCIES.
(c) THE LIMITED WARRANTY PROVIDED HEREIN IS IN LIEU OF ALL
OTHER WARRANTIES, GUARANTEES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY
STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF
TRADE.
(d) IN NO EVENT SHALL NRC BE OBLIGATED OR LIABLE TO KAISER FOR
ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE SERVICES OR PRODUCTS PROVIDED BY NRC HEREUNDER, OR ANY
DELIVERABLES PROVIDED BY NRC TO KAISER HEREUNDER, INCLUDING BUT NOT
LIMITED TO LOSS OF REVENUE OR PROFIT, EVEN IF NRC HAS BEEN ADVISED OR KNEW
OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
10. INDEMNITY.
(a) Kaiser shall, except to the extent of NRC negligence or
willful misconduct, indemnify and hold NRC harmless from and against any
and all liabilities, claims, actions, proceedings or suits against NRC by
any physician, specialist or other employee of Kaiser, or by any third
party arising out of or connected with the performance by NRC pursuant to
this Agreement and the Task Specification, or any use by Kaiser of the
deliverables produced by NRC pursuant to the agreement and Task
Specification. This indemnity shall include all costs, attorneys' fees
and damages which NRC is or may be required to pay by reason of any
claims, actions, proceedings or suits against NRC. NRC shall give Kaiser
written notification of any claims, actions, proceedings or suits against
NRC within the scope of this indemnification. Upon receipt of such
notice, Kaiser shall, at its expense, defend NRC, and NRC shall provide
Kaiser with reasonable assistance and cooperation to facilitate the
defense or settlement of such claim, action, proceeding or suit.
(b) NRC shall indemnify and hold harmless Kaiser, its officers,
agents, affiliates and employees from and against all liabilities, claims,
losses, damages, demands and expenses, including reasonable attorneys'
fees, arising out of NRC's breach of Section 7, Confidential Information
and for personal injury or property damage to the extent that any such
liabilities, claims, losses, damages, demands or expenses are caused by
any act, error or omission of NRC, its officers, employees, agents or
consultants. This indemnity shall include all costs, attorneys' fees and
damages which Kaiser is or may be required to pay by reason of any claims,
actions, proceedings or suits against Kaiser. Kaiser shall give NRC
written notification of any claims, actions, proceedings or suits against
Kaiser within the scope of this indemnification. Upon receipt of such
notice, NRC shall, at its expense, defend Kaiser, and Kaiser shall provide
NRC with reasonable assistance and cooperation to facilitate the defense
or settlement of such claim, action, proceeding or suit.
11. INDEPENDENT CONTRACTOR. NRC is an independent contractor
and engages in the operation of its own business, and neither party is or
shall be considered to be the agent of the other party for any purposes.
Neither party has authorization to enter into any contracts, assume any
obligations or make any warranties or representations on behalf of the
other party. Nothing in this Agreement shall be construed to establish a
relationship of co-partner or joint venturer between the parties. Kaiser
shall not be responsible to NRC, NRC's employee or any governing body for
any payroll-related taxes related to the performance of this Agreement.
12. INSURANCE.
a. NRC shall procure and maintain in effect the following
policies of insurance covering liability arising from or related to
services performed or to be performed by NRC under this Agreement:
(1) all insurance coverage required by Federal and State
law, including worker's compensation and employer's liability all with
statutory minimum limits;
(2) general comprehensive liability insurance with not
less than a * Dollar ($ * ) combined single limit and aggregate,
including personal injury, death, sickness or disease of any persons and
injury to or destruction of property, including loss of use resulting
therefrom, and also including a contractual liability endorsement covering
NRC's liability under Section 8, Indemnity;
(3) automobile liability insurance (bodily injury and
property damage liability) with not less than a * Dollar ($ * ) combined
single limit each accident for bodily injury and property damage combined,
including coverage for all owned, hired and non-owned automobiles; and
(4) professional liability (errors and omissions)
insurance with a limit of not less than * Dollars ($ * ).
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
b. All insurance required under this Section shall be carried
by companies acceptable to Kaiser and the insurance required under
subsections 12a(2) and 12a(3) shall name Kaiser and its affiliate, Xxxxxx
Foundation Hospitals/Health Plan, Inc., as additional insureds. All
insurance shall also contain cross-liability endorsements, be primary and
noncontributing with respect to any policies carried by Kaiser, and shall
state that any coverage carried by Kaiser shall be excess insurance.
c. NRC shall, upon execution of this Agreement, provide Kaiser
with a certificate of insurance evidencing these coverages, naming Kaiser
and its affiliate as additional insureds as required and providing that no
such coverage shall be subject to cancellation or material reduction in
coverage without thirty (30) days prior written notice to Kaiser. The
insurance requirements hereunder shall not limit or relieve NRC of its
duties, responsibilities or liabilities under this Agreement.
13. FORCE MAJEURE. Neither party shall be responsible for any
failure to comply with, or for any delay in, the performance of the terms
of this Agreement, including but not limited to, delays in delivery, to
the extent that such failure or delay is directly or indirectly caused by
or results from events of force majeure beyond the reasonable control of
the party claiming a failure to perform or delay under this paragraph.
14. TAXES. If Kaiser is exempt from payment of taxes, Kaiser
shall provide NRC with a certification of exemption or comparable document
issued by the applicable taxing authority, If exemption of Kaiser from
taxes is not established, Kaiser shall promptly pay to NRC an amount equal
to any excise, use, privilege, sales, or any other tax (except income and
franchise taxes of NRC), assessment, or any import duties, imposed by or
under authority of any federal, state, provincial, or local law, and to be
paid by NRC with respect to the goods and services furnished under this
Agreement or any Attachment hereto. Notwithstanding any other provision
in this Agreement, in no event shall Kaiser be responsible to NRC, the
employees of NRC or any governing body for taxes or withholding on the
payroll of NRC.
15. NOTICES. All notices of any kind required or permitted
under the terms of this Agreement shall be in writing and shall be
delivered by mailing a copy thereof by certified or registered United
States mail, postage prepaid, with return receipt requested, or by
overnight express delivery, addressed as follows, or to such other address
as either party shall give notice of from time to time:
If to NRC:
NATIONAL RESEARCH CORPORATION
Gold's Galleria
0000 "X" Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx, President
If to Kaiser:
THE PERMANENTE MEDICAL GROUP, INC.
Executive Offices
0000 Xxxxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, MD
Associate Executive Director
XXXXXX FOUNDATION HEALTH PLAN, INC.
Executive Offices
0000 Xxxxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Vice President
16. Intentionally Omitted.
17. NO PUBLICITY. NRC shall not, without the prior written
consent of Kaiser, use in advertising, publicity or otherwise the name of
Xxxxxx Foundation Health Plan, Inc., Xxxxxx Foundation Hospitals, The
Permanente Medical Group, Inc. or the Xxxxxx Permanente Medical Care
Program, or refer to the existence of this Agreement in any press
releases, advertising or materials distributed to prospective customers or
other third parties.
18. BINDING EFFECT; ASSIGNMENT. This Agreement shall not be
assigned by either party without the prior written consent of the other,
except that Kaiser may assign this Agreement or any interest herein, to
any organization directly associated with the Xxxxxx Permanente Medical
Care Program, or to (i) any parent, subsidiary or affiliated corporation
of Kaiser; or (ii) any corporation with which Kaiser may merge or
consolidate, except that Kaiser shall remain responsible to NRC for the
full performance of the terms of this Agreement. Nothing in this
Agreement, whether express or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any party other than the
parties hereto and their respective successors, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of
any third party to either party to this Agreement, nor shall any provision
give any third party any right of subrogation or action against either
party to this Agreement.
19. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes
the entire agreement between the parties pertaining to the subject matter
hereof and supersedes all prior agreements, representations, and
understandings of the parties hereto with respect to the subject matter
hereof, including without limitation, the MOU. This Agreement may be
supplemented, modified or amended only by a written instrument duly
executed by authorized representatives of each of the parties hereto.
20. ATTORNEYS' FEES. If any action is commenced to enforce any
of the provisions of this Agreement, including without limitation, an
arbitration proceeding, the prevailing party shall, in addition to other
remedies, be entitled to recover reasonable attorneys' fees and costs of
suit from the other party.
21. NONDISCRIMINATION. NRC recognizes that as a government
contractor, Kaiser is subject to various federal laws, executive orders
and regulations regarding equal opportunity and affirmative action which
may also be applicable to subcontractors. NRC, therefore, agrees that any
and all applicable equal opportunity and affirmative action clauses shall
be incorporated herein as required by federal laws, executive orders, and
regulations which include the following:
A. The nondiscrimination and affirmative action clauses
contained in: Executive Order 11246, as amended, relative to equal
opportunity for all persons without regard to race, color, religion, sex
or national origin; the Vocational Rehabilitation Act of 1973, as amended,
relative to the employment of qualified handicapped individuals without
discrimination based upon their physical or mental handicaps; the Vietnam
Era Veterans Readjustment Assistance Act of 1974, as amended relative to
the employment of disabled veterans and veterans of the Vietnam Era; and
the implementing rules and regulations prescribed by the Secretary of
Labor in Title 41, Part 60 of the Code of Federal Regulations.
B. The utilization of small and minority business concerns
clauses contained in: the Small Business Act, as amended; Executive Order
11625; and the Federal Acquisition Regulation (FAR) at 48 CFR Chapter 1,
Part 19, Subchapter D, and Part 52, Subchapter H, relative to the
utilization of minority business enterprises, small business concerns and
small business concerns owned and controlled by socially and economically
disadvantaged individuals, in the performance of contracts awarded by
federal agencies.
22. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
(b) The waiver by one party of the performance of a
covenant, condition or promise herein shall not invalidate this Agreement
nor shall it be considered a waiver by such party of any other covenant,
condition or promise herein, nor shall any such waiver be construed as a
future waiver of the performance of any other like act, covenant,
condition or promise.
(c) Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law; provided, however, that in the event that any provision of
this Agreement shall be invalid or prohibited under such applicable law,
such provision shall be ineffective only to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
(d) The headings of the several paragraphs of this
Agreement are inserted solely for the convenience of reference and are not
a part of this Agreement and are not intended to govern, limit or aid in
the construction of any of the terms or provisions of this Agreement.
(e) This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. The parties
hereto agree that a facsimile copy of the signature of an authorized
representative of one or more of the parties hereto shall have the same
legal effect as the original signature of such representative.
IN WITNESS WHEREOF, the parties, by and through their authorized
representatives, have executed this Agreement on the dates indicated
below.
NATIONAL RESEARCH CORPORATION ("NRC")
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: CEO
Date: 7-15-94
THE PERMANENTE MEDICAL GROUP, INC. ("TPMG")
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx, MD
Title: Associate Executive Director
Date: 8/15/94
XXXXXX FOUNDATION HEALTH PLAN, INC. ("KPHP")
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: V.P. Associate Regional Manager
Date: 8/11/94
ATTACHMENT A
Task Specification for Member/Patient
Survey Project
Kaiser will provide to NRC certain member and patient level
data, and NRC, by use of this data, will perform periodic surveys of
Xxxxxx'x members and patients regarding satisfaction with the services
such members and patients have received from KPHP. Based upon survey
results, NRC will provide period reports to Kaiser as more specifically
described herein. The Survey Project will cover data for the period of *
through *, unless extended pursuant to Paragraph 3 of the agreement.
Kaiser will provide NRC with the data relating to the patient or
member to whom NRC shall transmit a survey form. Data pertaining to
patients and members shall include information as reasonably required by
NRC to perform this Task Specification, such information to be provided by
Kaiser to NRC in a mutually acceptable format. Kaiser agrees to exercise
its best efforts to keep such data up-to-date and accurate. Data
regarding certain patients may be withheld by Kaiser in the event that
Kaiser determines that confidentiality considerations so warrant.
Kaiser and NRC will cooperate in the design of a questionnaire
to be used as the survey instrument. Kaiser shall approve the survey in
writing prior to NRC's distribution of the instrument to patients or
members. The survey instrument may undergo periodic revision in response
to Xxxxxx'x needs for new or different survey data.
NRC shall collect * completed patient surveys and * member
surveys during each of the periods of * through *, and * through *, as
more specifically described on the following page of this Attachment.
These survey return numbers are based on the * response rates of *% for
the patient survey and *% for the member survey.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
NRC shall monitor a sample selection and avoid transmitting a
survey to a patient more than once during a * period. No member shall be
surveyed if he or she has made a visit to a Kaiser physician within the
past * (*) months. (If a member has visited a physician within the prior
*, such member shall be regarded as a "patient" for survey purposes).
Kaiser shall provide NRC with necessary data to establish the date of a
member's last office visit.
* NRC will restrict its phone contacts to the hours of 10:00
a.m.-9:00 p.m. Monday through Friday, 10:00 a.m.-5:00 p.m. Saturday, and
12:00 p.m.-4:00 p.m. Sunday. Phone contacts shall be conducted in
professional manner.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
NRC will issue written reports using the survey returns on the
following schedule:
* - * facility reports and * Medical Center reports;
* - * facility reports, * Medical Center reports, and
reports for individual physicians and nurse
practitioners;
* - * facility reports, * Medical Center reports, and
reports for the departments of each facility;
* - * facility reports, * Medical Center reports, and
reports for the departments of each facility;
* - * facility reports, * Medical Center reports, and
reports for the departments of each facility;
NRC shall hold in storage for a maximum of * (*) months the
completed survey forms received from members or patients. Thereafter,
unless Kaiser wishes to take possession of such surveys, such documents
will be destroyed, provided, however, that the survey results shall be
stored by NRC on magnetic media.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
At the beginning of each month, NRC shall deliver to Kaiser the
original copies of completed surveys received in the prior month which
contain written comments from the respondents. NRC shall make and retain
copies of these original surveys and hold them in storage for a maximum of
* (*).
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
On a weekly basis, NRC will provide a written summary report to
Kaiser detailing the number of surveys mailed out and the number received
by NRC. This report shall be in a form specified by Kaiser as necessary
to track the response rate for mailings which occur at different times
throughout the year, and to track the response rate resulting from
different stages of NRC's survey process.
At the beginning of each month, NRC shall deliver to Kaiser an
updated electronic data set containing all survey responses received from
members and patients as of that date. Such data sets will include for
each respondent all survey items, necessary weighing factors, Kaiser-
supplied data (e.g., date of visit, provider code), and survey tracking
data maintained by NRC (e.g., date of survey mailing, last contact, date
of survey return to NRC). Such data sets shall be delivered in the format
and on the storage medium specified by Kaiser. NRC shall deliver such
documentation as necessary to access the delivered data sets, and shall
update the documentation whenever any changes are made to the data set
contents or format.
Due to the fact that a significant proportion of Xxxxxx'x
members and patients are non-English speaking (and are not literate in the
English language), NRC will take reasonable steps to facilitate response
by such individuals to surveys. On the survey instrument NRC will provide
an explanation and 800 numbers to be staffed during extended business
hours by Spanish-speaking and Chinese-speaking individuals. Kaiser shall
provide NRC with the survey instrument translated from English to Spanish
and English to Chinese. Upon request, a Spanish-speaking Kaiser pateitn
or member will be provided with a Spanish language survey form. Upon
request, a Chinese-speaking Kaiser patient or member will be administered
the survey over the phone by a Chinese-speaking NRC staff person. If
required, NRC will explore with Kaiser the need to provide assistance to
patients or members in other languages. NRC shall include the requested
data on survey activity and response rates for these special language
groups in its weekly survey activity and response reports.
ATTACHMENT B
Task Specification for Competitor Benchmark Study
In conjunction with Xxxxxx'x Member/Patient Survey Project, NRC
will conduct a Competitor Benchmark Study of individuals enrolled in the
following health plans;
(a) Fee for service;
(b) Non-Kaiser managed care plans; and
(c) Kaiser members
Such Study shall be performed in accordance with this Task
Specification.
The Study's objective is to provide Kaiser with comparative
health plan satisfaction scores. The sample group from which data will be
collected will be identified through the use of * . The responses will
consist of * individuals enrolled in a fee-for-service health care plan, *
individuals enrolled in a managed care plan other than Kaiser, and *
individuals who are Kaiser members. Due to the size of the sample, it
will be impractical to report study results by specific health care
providers other than Kaiser. All market research conducted in conjunction
with this Study will be performed in accordance with generally accepted
standards for sound market research.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
ATTACHMENT C
Listening System Software (TM) Trial
In conjunction with this Study, NRC will install at Xxxxxx'x
Northern California Regional Office, NRC's Listening System Software (TM)
(the "Software"). The objective of such installation is to allow Kaiser,
on a trial basis for the period from the date of installation to *, to
evaluate the benefits and merits of the Software for licensing from NRC
and installation at each of Xxxxxx'x Northern California Region Medical
Centers.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
NRC shall install one copy of the Software on a Kaiser personal
computer at an office of Xxxxxx'x choice, train two (2) Kaiser personnel
in the operation of the Software, and support the Software for the
duration of the trial review. NRC will not charge Kaiser for the use,
installation or support of the Software during the trial period. Software
support shall be provided Monday through Friday (excluding holidays) from
9:00 a.m. to 4:00 p.m. Central Time via a telephone user support line.
NRC shall provide one (1) day of installation and training services at
Xxxxxx'x site. NRC will furnish, free of charge, one (1) Systems
Operations Manual for training of Xxxxxx'x personnel and for such during
the trial period.
NRC has, and shall retain, title to the Software during the
trial period and NRC warrants that it has the right to grant the license
to the Software. Kaiser shall not make copies of the Software for any
purpose. Kaiser may not alter or modify the Software or merge the
Software into other programs. Kaiser acknowledges that it has no
proprietary interest in or right to use of the Software except in
accordance with the terms described herein.
Kaiser recognizes that the Software and other materials supplied
by NRC to Kaiser are subject to the proprietary rights of NRC. Kaiser
agrees that it will hold the Software in confidence, and that it shall not
disclose to any third party the Software and documentation and that the
Software and documentation are provided for Xxxxxx'x exclusive use.
Kaiser further understands that operator manuals, training aids and other
written materials are subject to copyright protection.
If at the end of the trial period, Kaiser desires to enter into
a license for the use of the Software, Kaiser and NRC shall in good faith
negotiate the terms of a license agreement. If Kaiser does not desire to
license the Software, it shall return the Software and any documentation
to NRC without further obligation.
NRC warrants that it has the right to grant the license granted
to Kaiser under this Agreement, free and clear of any liens and
encumbrances, and that the Software will not infringe upon or violate any
patent, copyright or trade secret right of any third party. NRC shall
indemnify, defend, save and hold Kaiser harmless from any and all
liabilities, including attorneys' fees and costs, arising out of claims
that the Software infringes the patent, trademark, copyright, trade secret
or other proprietary or intellectual property rights of others. Kaiser
shall promptly notify NRC in writing if Kaiser becomes subject to any such
claims. Kaiser shall, upon NRC's request and at NRC's expense and to the
extent Xxxxxx'x interests are not adverse to NRC, provide reasonable
assistance to NRC in the defense of such action. NRC shall have the sole
control of the defense and settlement of such claims (except that any
settlement which will adversely affect the financial viability of NRC must
be approved by Kaiser) and NRC shall be entitled to replace or modify the
Software so that it becomes noninfringing provided that the performance of
the Software is not materially impaired thereby.
