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EXHIBIT 10.18
*** Text Omitted and Filed Separately
CONFIDENTIAL TREATMENT REQUESTED
Under 17 C.F.R. Sections 200.80(b)(4)
and 230.406
BUSINESS AND TECHNOLOGY PARTNERSHIP AGREEMENT
This BUSINESS AND TECHNOLOGY PARTNERSHIP AGREEMENT (the "AGREEMENT") is
made as of December 30, 1999 (THE "EFFECTIVE DATE"), by and among CHANNELPOINT,
INC., a Delaware corporation having its place of business located at 0000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 ("CP" or
"CHANNELPOINT") and UNITED HEALTHCARE SERVICES, INC., a Minnesota corporation
having its place of business located at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxx 00000 on behalf of itself and its affiliates ("UHS"). Any reference
herein to UHS shall mean United HealthCare Services, Inc. and its affiliated
companies.
RECITALS
A. ChannelPoint is in the business of, among other things, providing an
Internet-based electronic commerce exchange platform, electronic market
technology and web-based services to provide insurance brokers and customers
with access to quotes, proposals and policy information and to enable the
purchase of insurance policies (the "SERVICES") via websites established and
operated by ChannelPoint (the "CP EXCHANGE" as defined below).
B. The CP Exchange provides a link between its software and technology
known as "Commerce" and its software and technology known as "Insure" to provide
support for the operational functions of insurance companies.
C. UHS is in the business of providing managed health care insurance
and other health insurance products, including those "UHS INSURANCE PRODUCTS"
defined below.
D. UHS and ChannelPoint desire to enter into an agreement whereby
ChannelPoint will license software, provide access to the technology of the CP
Exchange, and provide services to UHS as its strategic, electronic market
technology provider, to enable UHS to distribute the UHS Insurance Products, as
well as those products supplied by third parties, in UHS private and
semi-private branded platforms based upon and integrated with the CP Exchange
and through other open markets in the CP Exchange, at the election of UHS.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions of this Agreement, the parties to this Agreement
agree as follows:
AGREEMENT
1. DEFINITIONS.
1.1 "AFFILIATED COMPANY" means a corporation or entity whose
outstanding equity interests are owned, directly or indirectly 51% or more by
United HealthCare Services, Inc, or its parent and which interests are entitled
to vote for management of such corporation or entity.
1.2 "BRANDED PLATFORMS" means the web-based interfaces to the CP
Exchange branded with the UHS Marks as provided in Section 5.1 below that are
created by CP under this Agreement, including the Private Branded Platform and
the Semi-Private Branded Platforms.
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For purposes of this definition, "Platform" means Internet-based electronic
commerce exchange platform developed or created by CP and "Branded" means the
application of brands designated by UHS for use on such Platforms in connection
with this Agreement.
1.3 "COMMERCELINK(TM)" means the CommerceLink software for facilitating
brokers and customers to obtain access to quotes, proposals, and policy
information using the Internet and connecting with back office systems.
1.4 "CP CONTENT" and "CARRIER PLUG-INS" are defined in Section 6.3
below.
1.5 "CP EXCHANGE" means CP's Internet-based electronic commerce
exchange product, including all related electronic market technology, currently
known as "Commerce" made available to UHS under this Agreement, to provide
insurance brokers and customers with access to quotes, proposals and policy
information and to enable the purchase of insurance policies via websites and
Platforms (including, without limitation, the Branded Platforms) established and
operated by ChannelPoint.
1.6 "CP EXCHANGE ROADMAP" means ChannelPoint's currently anticipated
schedule of new features and functionality.
1.7 "CP SERVICES" means the installation, security, maintenance and
other ancillary services related to the ChannelPoint Software.
1.8 "CP SOFTWARE" means software that is developed and licensed to UHS
hereunder, including all releases, enhancements and error corrections and all CP
third party software included therein.
1.9 "CUSTOMIZATION SERVICES" means CP's customization of the Branded
Platforms, and integration of Insure (including multi-site capabilities and
interface with ancillary insurance products) together with other customizations
requested by UHS and performed by CP for Professional Service Fees.
1.10 "INSURE" means the Insure(TM) software product marketed and
distributed by CP, including Insure Release 2.5, which is capable of providing
the Insure Services set forth on Exhibit A attached hereto, and including all
Service Upgrades, new releases, versions and modifications thereto.
1.11 "MARKS" means the trademarks, trade names, trade dress, service
marks, service names and logos of a party provided for use by the other party
under the terms of this Agreement.
1.12 "POLICYHOLDER" means a broker or client who has obtained a quote
or purchased a UHS Insurance Product from UHS using the Services.
1.13 "PRIVATE BRANDED PLATFORMS" means the Branded Platforms through
which UHS may offer all or a subset of the UHS Insurance Products for sale via
the CP Exchange and/or using Insure.
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1.14 "SEMI-PRIVATE BRANDED PLATFORMS" means the Branded Platforms
through which UHS may offer all or a subset of the UHS Insurance Products and
certain insurance products
1.15 "SERVICES" means the ChannelPoint's Internet-based electronic
commerce exchange service that provides insurance brokers and customers with
access to quotes, proposals and policy information to enable the purchase of
insurance policies via a website.
1.16 "SERVICE UPGRADES" means the commercially available service
upgrades and related documentation to the CP Exchange and/or Insure, as the case
may be, that are provided to customers of CP as part of their maintenance fees
and which are provided to UHS pursuant to Section 4 below.
1.17 "SOURCE CODE" means a human-readable copy of the source code (the
computer instructions in human readable computer language) to Insure,
CommerceLink and all software included in or a part of the CP Exchange that is
necessary to operate the Branded Platforms and Semi-Private Branded Platforms
(herein referred to as "Software" in the Escrow Agreement attached hereto as
Exhibit D), plus any pertinent commentary or explanation that may be used by
ChannelPoint's programmers, and all related documentation, description of
development environment, a list of all third party software and any
customizations made thereto, system documentation, statements or principles of
operation, and schematics, all as necessary or useful for the effective
understanding, maintenance and use of the Source Code. To the extent that the
development environment employed by ChannelPoint for the development,
maintenance, compilation, and implementation of the Source Code includes any
device, programming, or documentation not commercially available to Customer on
reasonable terms through readily known sources other than ChannelPoint, the
Source Code shall include all such devices, programming, or documentation. The
foregoing reference to such development environment is intended to apply to any
programs, including compilers, workbenches, tools, and high-level (or
proprietary) languages, used by ChannelPoint for the development, maintenance,
and implementation of the Source Code.
1.18 "THIRD PARTY CARRIERS" means third party underwriters and issuers
of insurance products that are made available through the CP Exchange and the
Semi-Private Branded Platform.
1.19 "THIRD PARTY SOFTWARE" means software incorporated into
Insure(TM), or CommerceLink(TM), or any other software licensed or otherwise
provided to UHS that is owned by an entity other than ChannelPoint and licensed
to ChannelPoint.
1.20 "UHS CONTENT" is defined in Section 6.1 below.
1.21 "UHS INSURANCE PRODUCTS" means the Individual and Small Group
insurance products offered by UHS for sale through the CP Exchange and/or
through the use of Insure.
1.22 "UHS PROPRIETARY CONTENT" is defined in Section 6.1 below.
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1.23 "UHS SALES FORCE" means UHS' independent and dedicated brokers,
sales agents or other UHS distribution intermediaries that are authorized by UHS
to access the Branded Platforms pursuant to this Agreement.
2. ACCESS AGREEMENT; RESOURCE COMMITMENTS; APPOINTMENT
2.1 ACCESS AGREEMENT. ChannelPoint shall have access to the UHS systems
and data in accordance with the terms and for the purposes set forth in the
Access Agreement attached hereto as Exhibit B.
2.2 RESOURCE COMMITMENTS. CP and UHS will establish a joint product
team ("PRODUCT TEAM") consisting of a number of representatives from
ChannelPoint and a number of representatives from UHS to be mutually agreed to
who will develop a plan and provide input to CP regarding the future development
of CP products and services for UHS. CP shall establish a dedicated team of
Professional Services personnel and assign that team exclusively to projects for
UHS as set forth in this Agreement. Such team or a subset thereof shall
participate in the Product Team. The Product Team will be responsible for
preparation of Letters of Engagement, as described in Section 4.5 below. The
Product Team will also serve as the point of contact for UHS' role as a Design
Partner (as described in Section 5.2) and will coordinate the parties' ongoing
development of implementation plans and milestones, and supplemental UHS
financial commitments, under this Agreement.
2.3 ELECTRONIC AGENT. UHS hereby appoints ChannelPoint as UHS'
"Preferred" electronic agent (as further defined in Section 2.5 below)
authorized to market and solicit offers for UHS Insurance Products, based on the
rates, terms and conditions of any UHS Insurance Policies, via the Internet
through the CP Exchange (including without limitation through the Branded
Platforms), and ChannelPoint hereby accepts such appointment, subject to the
terms and conditions of this Agreement. UHS may at any time alter coverages,
provisions or exclusions of the UHS Insurance Products without the consent of
ChannelPoint. UHS agrees to give ChannelPoint written notice of such
modifications in a timely manner.
2.4 LIMITS ON AUTHORITY. ChannelPoint is not authorized to (i) make,
alter or waive any of the rates, terms or conditions of any of UHS Insurance
Products, including forms, policies, contracts or advertising materials, (ii)
bind coverage under an Insurance Product without UHS' express prior written
approval, (iii) sign any contract on behalf of UHS or its affiliates or (iv)
prepare or distribute any promotional or descriptive material relating to this
Agreement or any UHS Insurance Products without first obtaining UHS' written
approval of such materials.
2.5 PREFERRED PROVIDER. In connection with ChannelPoint's appointment
as a preferred electronic agent of UHS, UHS agrees that, so long as CP is in
compliance with this Agreement, CP shall be UHS' preferred third party provider
of all member, employee and employer desktop web-based front-end services via
ChannelPoint's Commerce at Work and Commerce Administrative Portals or
ChannelPoint's successor products thereto for all broker assisted pre-sale
activities (including but not limited to distribution, benefit selection,
enrollment administration and post-sale benefits administration, but not
including [...***...]
* CONFIDENTIAL TREATMENT REQUESTED
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[...***...], and other applications developed inhouse by UHS without
participation of third party vendors) for the UHS Insurance Products, and UHS
agrees that all such services will be provided via the Branded Platforms in
accordance with this Agreement. UHS also agrees to use its best efforts to refer
to ChannelPoint as its "Preferred Internet Insurance Exchange Services Provider"
or to use similar language to the extent practical in press releases and
marketing collateral material when such written material refers to electronic
commerce insurance distribution initiatives undertaken by UHS.
3. CP EXCHANGE SERVICES AND INSURE LICENSE
3.1 LICENSE TO USE CP EXCHANGE. CP hereby grants to UHS and properly
licensed members of the UHS Sales Force the non-exclusive, non-transferable
right and license during the term of this Agreement to access and use the CP
Exchange through the Branded Platforms for the sole purpose of providing
insurance procurement services to UHS' customers and potential customers.
Concurrently with the delivery of the Branded Platform, CP shall issue to UHS
for each properly licensed member of the UHS Sales Force a user name and
Password to enable access to the CP Exchange, provided that any such Sales Force
who is not employed by UHS shall have first signed a Broker Agreement on a form
provide by ChannelPoint.. UHS shall treat the user name and Password as CP's
Confidential Information (as defined in Section 9 below) and to make such
information only available to UHS and the UHS Sales Force for use as permitted
under this Agreement. Use of the CP Exchange shall be subject to CP's
then-current terms and conditions of use and privacy policy, as published by CP
on the CP Exchange. No other uses of the CP Exchange are permitted except by
separate agreement.
3.2 LICENSE TO INSURE AND COMMERCELINK. CP hereby grants to UHS the
license rights to Insure and CommerceLink in accordance with the terms of the
Software License attached hereto as Exhibit C.
3.3 CORE FUNCTIONALITY. In consideration of the Transaction Fees (as
defined in Section 7.3 below), CP will deliver the Branded Platforms which
include the basic core functionality and other elements specified in Letters of
Engagement described in Section 4.5 below. UHS will specify the Branded
Platforms to be developed and will have the sole discretion in the selection of
UHS Insurance Products offered through the Branded Platforms and in the
selection of the insurance products offered by Third Party Carriers through the
Semi-Private Branded Platforms.
3.4 CUSTOMIZATION SERVICES. In consideration of the Professional
Service Fees (as described in Section 7.6), CP will perform the Customization
Services relating to (a) implementation of any Branded Platform elements not
included in the basic core functionality described in Exhibit A; (b) the import
and repurposing of UHS Content in data centers on the Commerce Exchange; and (c)
additional unique and/or proprietary UHS requirements, features and
functionality that are not part of the Commerce Exchange. Either party may
propose Customization Services, and if agreed as to scope, cost and schedule,
the parties shall execute a Letter of Engagement.
3.5 SOURCE CODE ESCROW. CP shall place into escrow source code for
Insure and CommerceLink, and such other Software as necessary for UHS to operate
its Branded Platforms
* CONFIDENTIAL TREATMENT REQUESTED
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and Semi-Private Branded Platforms, including all written and electronic
documentation necessary to modify and operate such software, pursuant to the
terms of the Escrow Agreement attached hereto as Exhibit D.
3.6 SECURITY. ChannelPoint shall ensure that all security measures
related to the CP Exchange, the UHS Content and other data described in Section
6.5, and their use by UHS, shall conform to reasonable security methodology,
standards and requirements of Customer. ChannelPoint acknowledges and agrees
that it will (a) execute all security agreements reasonably required by UHS
prior to any access to the UHS network, and (b) provide all information
necessary, such as user names, in order for UHS to preauthorize and control
access to the UHS network by ChannelPoint's employees.
3.7 HEALTH CARE AND INSURANCE REGULATIONS. ChannelPoint acknowledges
that (a) the UHS operates in a regulated industry, (b) the use of the CP
Exchange and Insure will involve a number of governmental regulations covering
the heath care and insurance industries, and (c) the CP Exchange and Insure must
effectively and efficiently accommodate such governmental regulations in order
for it to be useful to UHS. ChannelPoint, in cooperation with UHS, will ensure
that the specifications for all releases and versions of CP Exchange and Insure
accommodate UHS' need to comply with all such governmental regulations, subject
to UHS' being current on all maintenance obligations pursuant to Section 7.6.
ChannelPoint shall also provide Service Upgrades and updates to Insure in a
timely manner after UHS has notified CP of any such regulatory changes so as to
enable UHS to comply with any additional and applicable regulatory changes at
all times. UHS agrees to inform ChannelPoint of such regulatory changes and
assist ChannelPoint in its updates resulting from such regulatory changes. The
parties may from time to time change and update this provision based on
regulatory developments and analysis. The parties agree that Service Upgrades
and updates needed to accommodate minor changes due to regulations shall be
provided free of charge by CP to UHS. ChannelPoint reserves the right to charge
additional fees for other changes, in an amount to be mutually agreed upon
between ChannelPoint and UHS, prior to providing such Service Upgrades resulting
from other than minor changes.
3.8 INTERNET AND E-COMMERCE REGULATIONS. ChannelPoint, in cooperation
with UHS, will ensure that the operation of the CP Exchange accommodates UHS'
need to comply with all governmental regulations related to use of the Internet
and electronic commerce, including, without limitation, any regulations or laws
covering confidentiality and privacy of individuals' personally identifiable
data.
3.9 [...***...]
4. UPGRADES, ENHANCEMENTS, SUPPORT AND OTHER SERVICES
4.1 GENERAL UPGRADES/ENHANCEMENTS TO THE CP EXCHANGE. In consideration
of the Transaction Fees (as defined in Section 7.3 below), CP will deliver to
UHS the Branded Platforms which include the basic core functionality and other
elements that are commercially available from ChannelPoint as of the effective
date, and any modifications made or future
* CONFIDENTIAL TREATMENT REQUESTED
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capabilities and features added and made commercially available from time to
time. Substantially all features and functionality then currently available will
be provided to UHS within the scope of the Transaction Fees and CP shall make
available to UHS all Service Upgrades for the CP Exchange as and when made
commercially available by CP.
4.2 CP EXCHANGE ROADMAP. The CP Exchange will generally evolve to
include new features and functionality in accordance with the CP Exchange
Roadmap attached hereto as Exhibit E ("CP Exchange Roadmap"); UHS acknowledges
that the CP Exchange Roadmap is provided for information purposes only and does
not represent a binding commitment on behalf of CP; provided, however, that CP
and UHS shall cooperate and shall devote resources and experience to define,
prioritize and plan future to CP Exchange and Insure that may become part of
CP's general product releases.
4.3 SUPPORT SERVICES AND MAINTENANCE.
4.3.1 SUPPORT SERVICES AGREEMENT. The parties will execute a
mutually acceptable support and services agreement within sixty (60) days after
the Effective Date of this Agreement. Such agreement will contain service
levels, support response times, and other terms that will govern CP's support
and maintenance of the CP Exchange and the Branded Platforms , substantially to
the service levels, support response times and other terms that govern support
and maintenance currently in effect as attached hereto on Exhibit F. The rates
for such services shall be the applicable rates as set forth on Exhibit F at the
time of delivery of such Services. Such support shall include provide support
provided by CP via email (xxxxxxxxx@xxxxxxxxxx.xxx) and telephone (at (insert
telephone number) to UHS and the UHS Sales Force relating to the authorized use
of the CP Exchange and the Branded Platforms, including, without limitation,
verifying data on the exchange, investigating bugs, and validating error
conditions, UHS or the UHS Sales Force shall provide direct support to end-user
customers related to inquiries about UHS products and services, such as plan
availability, how to use the product, and capture of information on other
questions or problems, and shall use commercially reasonable efforts to respond
to all customer service inquiries promptly after receipt.
4.3.2. CUSTOMER COMMUNICATIONS. All written customer support
communications relating principally to the CP Exchange shall state that the CP
Exchange is provided or powered by ChannelPoint and shall include a reference to
"Commerce(TM)" or such other brand designations specified by ChannelPoint from
time to time. UHS shall also display on all websites hosted or built by CP, the
phrase "Powered by ChannelPoint".
4.3.3 MAINTENANCE. In exchange for maintenance fees described in
Section 7.6 below, CP shall provide to UHS all bug fixes, modifications,
enhancements, error corrections and new versions or releases of Insure,
CommerceLink and the CP Exchange which are generally made available to other
participants in ChannelPoint's Insure, CommerceLink and CP Exchange maintenance
program at no additional charge.
4.4 SERVICE UPGRADES. CP will provide to UHS at no charge beyond
maintenance fees then in effect and paid by UHS in accordance with the terms of
this Agreement, the option to implement any Service Upgrade and enhancements to
the current release of Insure, as soon as such Service Upgrade or enhancements
become commercially available. If UHS decides to exercise this option with
respect to Service Upgrades for Insure, the parties shall mutually agree
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upon whether UHS, shall install such Service Upgrade or enhancement itself or
have CP install the Service Upgrade or enhancement, and which sites such
upgrades or enhancements shall be installed, and, if the parties agree that
ChannelPoint shall perform the installation, such work shall be performed in
consideration of Professional Service fees in accordance with the professional
service fee schedule in effect at such time.
4.4.1 SERVICE UPGRADES TIME FRAMES. ChannelPoint shall maintain and
provide Service Upgrades for any reported errors in the release of Insure or
CommerceLink then being used by UHS for a period of twenty-four (24) months
after execution of the Certificate of Final Acceptance for any subsequent
release.
4.4.2 CHANGE CONTROL GUIDELINES. ChannelPoint shall adhere to
mutually agreed to change control practices and guidelines in accordance with
UHS' commercially reasonable standards when installing Service Upgrades,
enhancements and new releases at any UHS site. ChannelPoint shall also utilize
prudent and reasonable server and software administration practice guidelines to
ensure that UHS is aware of the installation or delivery of any of the same
sufficiently in advance, so that no disruption to UHS' production operations
results from any such proposed delivery or installation. All Service Upgrades,
enhancements and new releases must be applied in an auditable and controlled
manner.
4.5 PROFESSIONAL SERVICES AND LETTERS OF ENGAGEMENT. In consideration
of UHS' payment of agreed upon Professional Service Fees (as described in
Section 7.6), CP will perform mutually agreed Professional Services
("PROFESSIONAL SERVICES") described and in accordance with the terms set forth
on written Letters of Engagement, which Letters of Engagement shall be in
substantially the form attached hereto as Exhibit G ("LETTERS OF ENGAGEMENT")
describing the scope of services, deliverables, milestones, and Professional
Service Fees, expenses and/or economic arrangements, and which Letters of
Engagement shall contain a "not to exceed price" rather than an "estimated
price."
4.6 THIRD PARTY SOFTWARE. UHS shall pay to CP the cost for any third
party software incorporated into products or services sold or licensed to UHS
pursuant to this Agreement at the same rates and pursuant to the same terms as
CP charges its other customers for such software.
5. BRANDING; MARKETING AND OTHER COOPERATIVE ACTIVITIES
5.1 BRANDING. The Branded Platform licensed to UHS shall be identified
and branded in accordance with UHS' direction, provided that all permitted use
of the Branded Platform by or on behalf of UHS shall bear the Marks of CP
throughout, in form reasonably approved by CP and UHS, such as "Powered by
ChannelPoint" with CP logos and other related marking.
5.2 DESIGN PARTNER. UHS agrees to serve as CP's Design Partner by using
commercially reasonable efforts to (a) provide to CP complete and timely input
on products and services provided by CP under this Agreement, (b) provide input
from UHS Sales Force and UHS' customers relating to the Services,, including any
customer service comments and complaints and (c) participate in marketing events
as specified in the Marketing and Sales Plan described in Section 5.3 below,
including participation in user group activities. As CP's design
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partner, UHS will be entitled to [...***...], (ii) [...***...], and (iii) advise
CP of UHS' preferences and suggestions for the future direction of the Branded
Platforms and Insure generally to help retain UHS' "first mover" advantages.
5.3 MARKETING AND SALES PLAN. The parties agree to work together to
develop a marketing and sales plan within ninety (90) days of the Effective Date
that materially meets the mutual objectives of both parties (the "MARKETING AND
SALES PLAN"). The Marketing and Sales Plan will include priority plans to
reflect the parties' agreements: (a) that in marketing of bundled services
capabilities to small-group customers, including any direct-to-consumer features
available through the CP Exchange (e.g., the bundling of CP's expertise and the
CP Exchange and Branded Platform with UHS' value-added domain knowledge, UHS
Content, fulfillment systems, and call center capabilities), UHS will in good
faith market bundled services for joint delivery by UHS and CP; and (b) such
other marketing and sales activities as the parties may agree. The Marketing and
Sales Plan is intended to provide a tangible measurement of results that are in
the interests of both parties, and are evaluated on a periodic basis, but not
less than quarterly. Upon completion, the marketing and sales plan shall be
included in this Agreement as an Exhibit. In conducting the Marketing and Sales
Plan, both parties may use Marks specified by the other party under the licenses
specified in Section 8 below and in accordance with the procedures specified
therein.
5.4 PRESS RELEASE. The parties will cooperate in good faith in creating
a mutually agreed upon press release and other public correspondence concerning
this Agreement for simultaneous national and local release as soon as possible
after the Effective Date. Neither party will issue a press release or otherwise
publicize the terms of this Agreement without the prior written consent of the
other party.
5.5 RATING ENGINES EXCLUSIVITY. UHS agrees to use the CP rating engine,
or where mutually agreed, call out to an existing UHS rating engine, provided
that UHS agrees to use CP as a preferred provider of rating engine capabilities
to UHS. As UHS' preferred provider for rating engines, UHS shall notify CP at
the earliest possible time of UHS' interest in deploying new, different or
additional rating engines, and, [...***...].
5.6 MEMBER, EMPLOYEE AND EMPLOYER DESKTOP PREFERRED PROVIDER. UHS
agrees that CP shall be its preferred third party provider for member, employee,
and employer desktop web-based front-end services via CP's Commerce At Work and
Commerce Administrative Portals (or CP's successor products thereto) for all
broker assisted pre-sale activities (including, but not limited to distribution,
benefit selection, enrollment, administration, but not including [...***...],
and other applications developed inhouse by UHS without participation of third
party vendors) and post-sale benefits administration for all UHS Insurance
Products. As UHS' preferred provider under this Section 5.6, UHS shall notify CP
at the earliest possible time of UHS' interest in deploying new, different or
additional desktop web front-end services, provide CP's product and technical
teams with access to all UHS requirements information, [...***...]
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5.7 [...***...].
6. CONTENT AND TECHNOLOGY LICENSING AND OWNERSHIP
6.1 UHS CONTENT AND LICENSING. UHS has acquired and developed, and
intends to continue to acquire and develop, a body of insurance product content,
rules, algorithms, procedures and policy materials, including the UHS
Proprietary Content, (collectively, the "UHS CONTENT"). UHS will, at its own
expense, generate and deliver to CP all UHS Content to be included in the CP
Exchange Subject to the terms and conditions of this Agreement and during the
Term, UHS hereby grants CP a royalty-free, worldwide, non-sublicensable license
to reproduce, distribute, publicly perform, publicly display and digitally
perform the UHS Content via the Internet solely as part of the CP Exchange;
provided, however, that the proprietary algorithms, rules, rating methodology
and the like, and all other information used by UHS to create quotes for the UHS
Products (collectively, the "UHS PROPRIETARY CONTENT") are and shall remain the
Confidential Information of UHS and may not be disclosed to any third party
without the prior written consent of UHS Notwithstanding anything to the
contrary in this Agreement, the UHS Proprietary Content may only be used by CP
to repurpose the Content to be used on the CP Exchange. CP may make a reasonable
number of archival copies of the UHS Content. Title to and ownership of all
intellectual property rights of the UHS Content shall remain with UHS or its
third party licensors.
6.2 UHS CONTENT MANAGEMENT. UHS will be solely responsible for
creating, managing, editing, reviewing, testing, deleting and otherwise
controlling the UHS Content via the procedures set forth below. CP shall deliver
to UHS certain tools and API's to enable UHS to implement and manage all changes
to the UHS Content accessible via the Branded Platforms (the "CP TOOLS"). CP
hereby grants UHS a royalty-free, worldwide license to use the CP Tools during
the Term solely to manage the UHS Content. Upon conversion of the UHS Content
and any updates thereto, UHS shall verify that all rating and similar algorithms
that are part of the UHS Content produce correct results. Except for any
transformation required to convert the content to CP's proprietary data format,
CP shall not modify or alter the UHS Content without UHS' written consent. UHS
shall be solely responsible for any liability associated with the use,
publication and distribution of the UHS Content, except for any errors in the
UHS Content that are created through CP's negligent modification, translation or
use of the same in the CP Exchange.
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6.3 CP CONTENT AND CARRIER PLUG-INS. CP has acquired and developed, and
intends to continue to acquire and develop, a body of content, including without
limitation, insurance product content, rules, algorithms, procedures and policy
materials (the "CP CONTENT") comprised of materials that were either licensed
from Third Party Carriers to CP, or developed by CP. UHS and CP intend that
certain of the CP Content may be made available via Semi-Private Branded
Platform as mutually agreed upon by UHS and CP in accordance with Section 3.2
above. In this event, the parties agree that CP shall have the right to solicit
Third Party Carriers to make their content ("Carrier Plug-Ins") available to
enable electronic distribution of such carrier's insurance products through the
Branded Platform subject to Exchange Service Fees payable to CP by UHS pursuant
to Section 7.3. CP grants UHS a worldwide license to use, with right to
sublicense to reproduce, distribute, modify, and prepare derivative works from,
and publicly perform and publicly display the CP Content via the Internet solely
for use with and as part of the Branded Platforms, including without limitation
the right to make the CP Content available to third parties for downloading and
copying over the Internet. Title to and ownership of all intellectual property
rights of the CP Content shall remain with CP or its third party licensors. CP's
license grant to UHS for CP Content shall be restricted to use in conjunction
with permitted use of the Branded Platform and the purposes of this Agreement.
6.4 OWNERSHIP.
(a) CP PROPERTY. As between CP and UHS, CP or its third party
suppliers will retain sole ownership of all intellectual property rights in and
to the XX Xxxxx, the CP Content, the CP Tools, the Open Portals, the the CP
Exchange, Insure, CommerceLink, the Private Branded Platforms, the Semi-Private
Branded and the Branded Platforms (exclusive of the UHS Content and UHS Marks),
including all software, content, documentation, technology and trademarks used
in connection with the CP Services and all enhancements thereto and the CP
Exchange and the Branded Platforms (the "CP PROPERTY"), subject to UHS'
ownership of the UHS Content and the UHS Marks as provided in subsection (b)
below. The CP Property includes any and all modifications, enhancements or
derivative works made to the CP Property by CP during the term of this
Agreement, whether or not made in response to UHS suggestions or requirements.
Except for licenses expressly granted to UHS under this Agreement, UHS is not
granted any other intellectual property rights, or any other rights, franchises
or licenses, with respect to the CP Property.
(b) UHS PROPERTY. As between UHS and CP, UHS will retain sole
ownership of all intellectual property rights in and to the UHS Marks, the UHS
Content (including the UHS Proprietary Content) and any other information,
content, documentation, look and feel in the presentation and interface of
Branded Platforms and trademarks that CP develops specifically for the UHS
Branded Platforms, or that UHS develops or makes available under the terms of
this Agreement (the "UHS PROPERTY"), subject to CP's ownership of the CP
Property as provided in subsection (a) above and the XX Xxxxx. The UHS Property
includes any modifications, enhancements or derivative works made to the UHS
Property by UHS during the term of this Agreement. Except as provided herein, CP
is not granted any other intellectual property rights, or any other rights,
franchises or licenses, with respect to the UHS Property.
(c) OTHER INTELLECTUAL PROPERTY. Ownership of intellectual property
rights in any technology (other than the UHS Property and the CP Property)
developed, made or
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conceived by either CP or UHS, jointly or alone, in connection with and during
the term of this Agreement pursuant to a Services Supplement will be specified
in any such mutually agreed Services Supplements. In the event any such
technology is developed, made, authored or conceived by either CP or UHS,
jointly or alone, in connection with and during the term of this Agreement, but
not subject to the provisions of any Services Supplement, all intellectual
property rights in and to such technology shall be (i) solely owned by CP, in
the case of technology developed, made, authored or conceived solely by CP; (ii)
solely owned by UHS, in the case of technology developed, made, authored or
conceived solely by UHS; or (iii) jointly owned by CP and UHS, in the case of
technology developed, made, authored or conceived jointly by CP and UHS
personnel (including its employees and consultants) for which, where relevant,
such personnel would be considered joint inventors under United States Patent
Act or joint authors under the United States Copyright Act.
(d) TRANSFER OF OWNERSHIP. Should the intellectual property created
hereunder or otherwise in connection with this Agreement be found not to be
owned exclusively by the party identified as the owner in 6.4 (a), (b) or (c)
above, but rather, to be owned exclusively by the other party, the other party
agrees to assign, convey and transfer and does hereby assign, convey and
transfer, to the party identified any and all its rights, including but not
limited to the right to register or patent such rights worldwide, to the extent
thereof, and to cooperate and assure the cooperation of its employees,
representatives and agents in such registration or patenting efforts.
6.5 DATA ACCESS. CP shall keep secure as required by this Agreement,
and UHS shall own all right, title and interest in and to all data created
through the use by any person that inquires about or obtain a UHS Insurance
Product through use of the Branded Platforms or the CP Exchange, including,
without limitation, the following: (a) use and traffic data concerning such
persons, including but not limited to impression data, usage summaries and click
through activity ("IMPRESSION DATA"); (b) data collected and stored on the CP
Exchange through the processing of inquiries, quotations and proposals using the
UHS Rating Content; (c) all information submitted to the CP Exchange by or on
behalf of persons and their dependents seeking insurance coverage from UHS
(whether through an employer or on an individual basis), which information is
broken down on an individual, rather than aggregate, basis; (d) all information
submitted to the CP Exchange by or on behalf of employers seeking UHS insurance
coverage or other information (whether directly from such employers or
indirectly through brokers or agents concerning UHS Products); (e) the list of
all persons who have requested information, proposals or quotations for any UHS
Insurance Product. As used herein, "aggregate" means that the data does not
contain or does not have associated with it any information that is identifiable
to UHS, a member of the UHS Sales Force, an employer, employee or a particular
individual who inquires about or purchases a UHS Insurance Product. Upon UHS'
request, CP shall provide all such data to UHS in a mutually acceptable format.
6.6 DATA CAPTURE. Subject to applicable data privacy laws and
regulations relevant to the Impression Data, CP shall be entitled to capture and
collect Impression Data in its operation of the CP Exchange and the hosting of
the Branded Platforms and CP may use Impression Data in any aggregate or generic
form that does not identify any particular customer.
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7. FEES
7.1 TARGET REVENUES. To secure CP's ongoing reasonable availability and
CP's provision of the services provided hereunder, UHS agrees to target revenues
AS FOLLOWS:
(a) [...***...] in total Target Revenue over the term of this
Agreement payable and earned as follows: [...***...] of Target Revenue for 1999
and [...***...] of Target Revenue for each calendar year of the term beginning
in the year 2000 and ending in 2004, for a total target revenue of [...***...]
("TARGET REVENUE"). Such Target Revenue shall include all sources of fees due
CP, including fees earned from Transaction Fees as set forth below in Section
7.3, Maintenance Fees as set forth below in Section 7.7, Project Management Fees
as set forth in Section 7.9 below, License Fees as set forth below in Section
7.1 (c) and Professional Service Fees, as set forth below in Section 7.1 (b)
(b) Professional Service Fees in the amount of: [...***...], shall
be earned and payable as follows: [...***...] for Professional Services to be
used in each of the years 2000; 2001; 2002; 2003; and [...***...] for 1999. Each
separate project establishing Professional Service Fees shall be set forth in a
separate Letter of Engagement.
(c) License Fees payable as follows: [...***...] that shall be
earned and nonrefundable upon the delivery and acceptance of Insure 2.x; Insure
3.0; Commerce and CommerceLink, which amount includes platform customization
that is deliverable upon payment of [...***...], with allocation for each such
delivery to be set forth on Exhibit H attached hereto and by this reference
incorporated herein. License Fees paid under this Agreement shall be deemed to
be earned and nonrefundable upon deployment and acceptance by UHS.
(d) Installation of Software, for such activities including but not
limited to configuration and customization, shall be separately billed and such
amounts therefor shall be included as a separate item in the relevant Letter of
Engagement.
7.2 TRANSACTION FEES. UHS shall pay to CP Transaction Fees equal to a
percentage of gross premiums paid by a Policyholder to UHS for each UHS
Insurance Product purchased by such Policyholder that has been quoted using the
Service. For purposes of calculating the Transaction Fees, the Percentage shall
be established in accordance with the schedule specified in Section 1(a) of
Exhibit I attached hereto. Transaction Fees are not payable on Insurance
Products which have not been quoted or purchased over any one of the following:
the CP Exchange, Private Branded Platforms or Branded Platforms. Such
Transaction Fees are earned when such gross premiums are paid, and such
Transaction Fees are independent of any other fee earned or service provided
under this Agreement.
* CONFIDENTIAL TREATMENT REQUESTED
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7.3 PROFESSIONAL SERVICE FEES. UHS shall pay all Professional Service
Fees, time plus expenses, unless otherwise agreed, pursuant to the applicable
Letter of Engagement for the Professional Services requested therein.
7.4 MAINTENANCE FEES. In consideration for the Service Upgrades and
related support services provided by CP hereunder, UHS shall pay Maintenance
Fees on a calendar quarterly basis equal to [...***...] payable as provided in
Section 7.10 below. Maintenance shall begin at the same time as the warranty
begins.
7.5 INSURE LICENSE FEES. In consideration for the rights granted to UHS
under the Insure License, UHS shall pay CP the Insure and CommerceLink License
Fees specified in the Insure and CommerceLink License in accordance with the
terms specified therein and in this Agreement. herein
7.6 PROJECT MANAGEMENT FEES. CP shall be responsible for the quality
and timely performance of all Professional Services set forth in each Letter of
Engagement, whether performed by CP or any third party operating under the
direction of CP. To the extent that CP engages the services of any third parties
with respect to any Letter of Engagement, CP shall:
7.6.1 negotiate and assume responsibility for commitments
(including fees, quality and timeliness) with all third party vendors,
7.6.2 separately itemize in the Letter of Engagement, CP's fees as
a project manager, assuming responsibility for the third party services,
7.6.3 not add any premiums or additional charges (other than as
identified in the project management fees permitted by Section 7.9.2 above, and
7.6.4 be responsible for recommending the appropriate use of third
party resources (including those of UHS), subject to the approval of UHS, whose
approval hall not be unreasonably withheld.
7.7 TRAVEL EXPENSES. Subject to UHS' prior consent, not to be withheld
unreasonably, in accordance with UHS' expense reimbursement policies, UHS shall
reimburse ChannelPoint for reasonable travel, lodging and related expenses
incurred by ChannelPoint in connection with ChannelPoint's performance of its
obligations under this Agreement. ChannelPoint shall provide Customer with
reasonable documentation for all such travel, and Customer shall pay such
expenses within thirty (30) days of receipt of such documentation.
7.8 REPORTING AND INVOICING. Each party shall keep reasonably accurate
and complete books and records as necessary to verify the fees owing under this
Agreement. Each payment of Transaction Fees based upon Third Party Commissions
shall include a report specifying the Third Party Carrier, the insurance product
sold and the amounts received as Third Party Commissions during the applicable
quarter For all fees owed to ChannelPoint by UHS as described in Section 7, UHS
shall provide ChannelPoint with quarterly reports as necessary for ChannelPoint
to properly xxxx UHS, and ChannelPoint shall invoice UHS on a quarterly basis
and UHS shall pay such fees within thirty (30) days of the date of
ChannelPoint's invoice. UHS shall use diligent efforts to track Policyholders
who have purchased Insurance Products that had
* CONFIDENTIAL TREATMENT REQUESTED
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been quoted or purchased through use of the Service. On a quarterly basis, UHS
shall provide to ChannelPoint a report listing by insurance broker or client the
Insurance Products sold during the prior month, specifying the products,
associated gross premiums, commissions or override payments, designated brokers
and other relevant information relating to such Policyholders, In addition to
the invoices provided to UHS under this section, ChannelPoint will provide UHS
with quarterly reports listing those insurance brokers and clients that have
obtained quotes or purchased Insurance Products through the Service during the
prior ninety-day (90) period. In addition, the parties shall comply with any
special tracking, reporting or reconciliation procedures agreed to by the
parties. Both parties will have the right to engage, at its own expense, an
independent auditor to examine the other party's records once per year as may be
necessary to determine the correctness of any report or payment made under this
Agreement, such audits to be conducted during normal business hours and upon
reasonable advance notice to the other party. Such invoices, payments and
reports shall become due monthly once UHS has rolled out Insure and CommerceLink
to 20 health plans.
7.9 TAXES. All fees owed by UHS to CP are exclusive of, and UHS shall
pay, all sales, use, excise and other taxes that may be levied upon UHS in
connection with this Agreement, or other transactions contemplated under this
Agreement, except for taxes based on CP's net income.
7.10 [...***...].
8. TRADEMARKS
8.1 LICENSE TO UHS MARKS. UHS grants to CP a non-exclusive,
nontransferable, royalty-free, worldwide license to use UHS' Marks to promote
CP's relationship with UHS. Further, UHS grants to CP a non-exclusive,
nontransferable, royalty-free, worldwide license to use UHS' Marks: (i) on the
CP Exchange to denote that the UHS Content is owned by UHS; and
* CONFIDENTIAL TREATMENT REQUESTED
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(ii) to promote the Branded Platform as containing the UHS Content in
promotional materials including but not limited to brochures, presentations,
advertising, and marketing. The foregoing grants are subject to the provisos
that: (a) CP shall at all times use the UHS Marks in accordance with UHS'
standard trademark usage guidelines provided to CP; (b) CP shall not engage in
any action associated with the UHS Marks that adversely affects the good name,
good will, image or reputation of UHS; and (c) all use of the UHS Marks in any
manner other than on the CP Exchange shall be subject to the prior written
approval of UHS, which approval will not be unreasonably withheld. CP agrees
that all use of the UHS Marks hereunder shall inure to the benefit of UHS. No
other rights or licenses to the UHS Marks are granted to CP hereunder except as
expressly provided in this Section 8.1.
8.2 LICENSE TO XX XXXXX. CP grants to UHS a non-exclusive,
nontransferable, royalty-free, worldwide license to use the XX Xxxxx (i) to
promote the Branded Platform bearing CP's co-branding and to promote UHS'
relationship with CP, as provided in the Marketing and Sales Plan, in
promotional materials including but not limited to brochures, presentations,
advertising, and marketing; and (ii) to publicly display hypertext links to the
CP Exchange from appropriate areas of the Branded Platform and UHS' web site;
provided that: (a) UHS shall at all times use the XX Xxxxx in accordance with
CP's standard trademark usage guidelines provided to UHS; and (B) UHS shall not
engage in any action associated with the XX Xxxxx that adversely affects the
good name, good will, image or reputation of CP. UHS agrees that all use of the
XX Xxxxx hereunder shall inure to the benefit of CP. No other rights or licenses
to the XX Xxxxx are granted to UHS hereunder except as expressly provided in
this Section 8.2.
9. CONFIDENTIALITY
9.1 DEFINITION. "CONFIDENTIAL INFORMATION" means confidential and
proprietary information which relates to UHS' or CP's business, products and
services, including but not limited to data, trade secrets, discoveries, ideas,
concepts, know-how, techniques, software, business activities and operations,
reports, studies and other technical and business information, including
personal Policyholder information, the UHS Proprietary Content, the Impression
Data and other data referenced in Section 6.5. Notwithstanding the foregoing,
Confidential Information shall not include any information which (a) is known by
the receiving Party at the time of disclosure, free of any obligation to keep it
confidential, as evidenced by credible evidence; (b) is or becomes publicly
available through authorized disclosure by the owner of such information; (c) is
rightfully obtained by the receiving Party from a third party who has the right
to transfer or disclose it; or (d) is independently developed by receiving Party
without reference to Confidential Information of the other Party.
9.2 NON-DISCLOSURE. Each Party shall keep in during the Term and after
termination or expiration of this Agreement all Confidential Information of the
other party and that it will not directly or indirectly disclose to any third
party or use for its own benefit, or use for any purpose other than the
performance of its obligations under this Agreement, any Confidential
Information it receives from the other party. Each party shall use reasonable
care to protect the other Party's Confidential Information, and in no event less
than the same degree of care as it would employ with respect to its own
information of like importance which it does not desire to have published or
disseminated. Each party may make Confidential Information of the other party
available to those of its employees, contractors or agents who have a need to
know such information and who
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are subject to binding use and disclosure restrictions at least as protective as
those set forth herein. Notwithstanding the foregoing, either party may make
disclosures as lawfully required or requested by a court of law, or any
governmental entity or agency in connection with seeking any governmental or
regulatory approval or in connection with a judicial proceeding, provided that
reasonable measures are taken to limit such disclosure and to obtain
confidential treatment or a protective order and the disclosing party is allowed
to participate in such efforts. Nothing herein shall be deemed to prevent or
limit CP from capturing, collecting and using the Impression Data as provided in
Section 6.5 above.
9.3 REMEDIES. UHS and CP each agree that any breach of this Section 9
would cause irreparable harm or injury to the other Party significantly in
excess of the value received by such other party pursuant to this Agreement, and
that such other party shall be entitled to declaratory, injunctive or other
equitable relief, in addition to any other legal or equitable remedies it may
have, for any such breach.
10. WARRANTIES AND COVENANTS
10.1 UHS WARRANTIES. UHS represents and warrants that:
(a) neither the UHS Content or any portion thereof in connection
with the Branded Platform or the CP Exchange will: (i) infringe or violate any
third party's copyright, patent, trademark, trade secret or other proprietary
rights; (ii) violate any law, statute, ordinance or regulation, including
without limitation the laws and regulations governing export control; (iii) be
defamatory or trade libelous; (iv) be pornographic or obscene; (v) be outdated
or inaccurate in any way that could mislead, in any material respect, any
applicant for UHS Insurance Products or users of the Branded Platform or the CP
Exchange; or (vi) to the extent such may contain code or other electronic files,
contain viruses, trojan horses, worms, time bombs, cancelbots or other similar
harmful or deleterious routines;
(b) UHS will promptly notify CP if it receives any complaint or if
it is served with any paper or has knowledge of any legal or administrative
action, investigations or proceeding against CP or involving CP.
10.2 CP GENERAL AND CONTENT WARRANTIES. In connection with its
obligations under this Agreement, CP represents and warrants that:
(a) it will not hold itself out as an agent other than for certain
insurance industry fee collection purposes or as the electronic agent described
in Section 2.3 above, employee, partner, joint venturer or officer of UHS;
(b) it will promptly notify UHS if it receives any complaint or if
it is served with any paper or has knowledge of any legal or administrative
action, investigations or proceeding against UHS or involving UHS;
(c) none of the CP Content, CP Property or Source Code, or their
use as permitted hereunder, will: (i) infringe or violate any third party's
copyright, patent, trademark, trade secret or other proprietary rights; (ii)
violate any law, statute, ordinance or regulation,
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including without limitation the laws and regulations governing export control;
(iii) be defamatory or trade libelous; (iv) be pornographic or obscene; (v) be
outdated or inaccurate in any way that could mislead, in any material respect,
any applicant for UHS Insurance Products or user of the Branded Platforms; or
(vi) to the extent such content may contain code or other electronic files,
contain viruses, trojan horses, worms, time bombs, cancelbots or other similar
harmful or deleterious routines; provided, however that the foregoing warranties
shall not apply to (A) the UHS Content, (B) the UHS Marks or (C) to the extent
any CP Content was created in accordance with UHS specifications or
instructions.
(d) it owns, or has the right to grant the licenses granted
hereunder, to the CP Exchange and Insure, and that it will provide the CP
Exchange, Insure, and all services hereunder in a workmanlike and timely manner
in accordance with the terms of this Agreement.]
10.3 CP EXCHANGE AND SERVICES WARRANTY AND DISCLAIMER. CP shall make
the Services generally available to UHS and the UHS Sales Team and, if
applicable end users Exchange in substantial conformance with CP's Service Level
Agreement attached hereto as Exhibit L, then-current specifications therefore,
in the event of CP's breach of the foregoing warranty, UHS's sole remedy and
CP's sole obligation shall be as specified in the Service Level Agreement.
Except as provided in this Section 10, CP provides all services and deliverables
hereunder "AS IS" AND CP EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED
AND STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE,
MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT
AS SPECIFIED HEREIN OR IN THE SOFTWARE LICENSE AGREEMENT, CP DOES NOT GUARANTEE
CONTINUOUS OR UNINTERRUPTED ACCESS TO AND USE OF THE SOFTWARE.
10.4 THIRD PARTY SOFTWARE AND EQUIPMENT. ChannelPoint acknowledges that
all third party software and equipment that it procures on behalf of UHS
hereunder shall be owned, or in the case of software the license shall be owned,
by UHS. ChannelPoint shall provide to UHS relevant license agreements for such
third party software. UHS shall pay to CP as set forth above in Section 4.6 the
cost of new or incremental third party software, including without limitation,
such software related to upgrades, enhancements, and additional deployments at
new UHS locations.
11. INDEMNITIES
11.1 UHS INDEMNITY. UHS shall indemnify, hold harmless and defend CP
from any and all damages, costs and (including attorneys' fees) arising or
resulting from any and all claims, suits, actions or proceedings brought by any
third party against CP or its directors, officers, agents and employees arising
from (a) any breach of the representations, warranties or covenants in Section
10.1, or (b) any claims relating to the provision of the insurance services
offered by UHS or any claims by UHS' customers or representatives relating to
use of or access to the Branded Platform, except to the extent such claim arose
out of any breach of this Agreement by CP or modifications to the UHS Content
made by or for CP except for those made at the request of UHS and correctly
implemented by ChannelPoint. As a condition of the foregoing, CP shall (i)
promptly notify UHS of any indemnifiable claim (ii) give UHS sole control over
the defense and settlement of such claims; and (iii) provide reasonable
cooperation
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and assistance to UHS in conducting its defense, at UHS' expense; provided,
however, that CP may participate in the defense at its expense; and CP's advance
written approval is required for any settlement that imposes any executory
obligation on CP and does not unconditionally release CP.
11.2 CP INDEMNITY. CP shall indemnify, hold harmless and defend UHS and
from any and all] damages, costs and (including attorneys' fees) arising or
resulting from any and all claims, suits, actions or proceedings brought by any
third party against UHS or its directors, officers, agents and employees,
arising from (a) any breach of the warranties in Section 10.2, (b) any claim
alleging that UHS' use of the Branded Platform, CP Exchange or InsurE in
conformance with this Agreement infringes any third party intellectual property
right or privacy right, except to the extent such claim arose out of any breach
of this Agreement by UHS, or (c) any modifications made to the UHS Content by or
for CP, except for those made at the request of UHS and implemented correctly by
ChannelPoint. As a condition of the foregoing, UHS shall (i) promptly notify CP
of any indemnifiable claim; (ii) give CP sole control over the defense and
settlement of such claims; and (iii) provide reasonable cooperation and
assistance to CP in conducting its defense, at CP's expense; provided, however,
that UHS may participate in the defense at its expense and UHS' advance written
approval is required for any settlement that imposes any executory obligation on
UHS and does not unconditionally release UHS.
12. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL EITHER UHS OR CP BE LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO
SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR
STRICT LIABILITY, OR FOR INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF CP HAS BEEN ADVISED
OF OR KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL
EITHER PARTY'S LIABILITY FOR ANY AND ALL CLAIMS OR CAUSES OF ACTION RELATING TO
THIS AGREEMENT EXCEED, IN THE AGGREGATE, [...***...]. THE EXISTENCE OF ONE OR
MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE LIMITATIONS OF THIS SECTION 12
SHALL NOT REDUCE THE AMOUNT OF FEES PAYABLE BY UHS TO CP UNDER THIS AGREEMENT.
THE LIMITATION OF LIABILITY SPECIFIED IN THIS SECTION WILL APPLY REGARDLESS OF
WHETHER ANY LIMITED OR EXCLUSIVE REMEDY SPECIFIED IN THIS AGREEMENT FAILS OF ITS
ESSENTIAL PURPOSE.
13. TERM AND TERMINATION
13.1 TERM. The term of this Agreement (the "TERM") shall commence on
the Effective Date and continue until December 31, 2004, and shall automatically
renew for one-year periods thereafter unless either party notifies the other
party of its desire to terminate the Agreement at least six (6) months prior to
the expiration of the then-current term.
13.2 TERMINATION. Either party may terminate this Agreement upon the
material breach of the other party, if such breach remains uncured, to the
extent such breach is capable of cure, for ninety (90) days (thirty (30) days
for any breach of Sections 8, 9, 10 or 11) following written notice to the
breaching party specifying the breach in reasonable detail and demanding its
cure.
* CONFIDENTIAL TREATMENT REQUESTED
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13.3 TERMINATION FOR BREACH. This Agreement may also be terminated as
follows:
13.3.1 If either party (i) is adjudicated bankrupt or insolvent by
a court of competent jurisdiction, (ii) substantially ceases to do business as
currently conducted, (iii) fails to pay its debts generally as they become due,
or (iv) declares bankruptcy, winds up, dissolves or liquidates (in each case,
other than for the purposes of an amalgamation, restructuring, or reconstruction
pursuant to which the surviving entity becomes bound by or assumes the
obligations under this Agreement), or a receiver, trustee or similar officer is
appointed over (or a lien holder takes possession of) all or a substantial part
of such party's property or assets, or anything similar to any of the foregoing
occurs in relation to such party under the laws of any jurisdiction, the
non-bankrupt party may terminate this Agreement effective immediately on notice
to the bankrupt party.
13.3.2 UHS may, in its sole discretion, terminate this Agreement,
in whole or in part, in the event that ChannelPoint is merged with or acquired
by, or if a controlling interest in ChannelPoint is, or the assets of
ChannelPoint to which this Agreement relates are, sold to or acquired by, any
third party, which, itself or through its affiliates, competes directly or
indirectly with UHS. ChannelPoint shall give sixty (60) days notice (or more, if
practicable) UHS prior to the closing date of any such transaction, and shall
provide such information regarding such transaction as UHS may reasonably
request. As of the date UHS receives such notice from ChannelPoint, ChannelPoint
shall no longer have any right to terminate (i.e., not renew) this Agreement
pursuant to Section 13.1 above for the next renewal term. Any termination of
this Agreement by UHS pursuant to this Section 13.3.2 shall be effective
immediately upon notice to ChannelPoint, and shall specify any and all
obligations of either party that UHS elects to terminate, provided that UHS may
not terminate any obligations of either party that expressly survive any
termination of this Agreement pursuant to Section 13.4 below.
13.4 EFFECT OF TERMINATION.
13.4.1 SURVIVAL OF TERMS. Sections 2.1, 6.4, 6.5, 7, 9, 10, 11,
12, 13, and 14 shall survive any termination or expiration of this Agreement.
The license to Insure shall continue in perpetuity after termination of this
Agreement pursuant to the terms of Exhibit C.
13.4.2 AUDIT RIGHTS. Upon termination, UHS may, at its expense and
on fifteen (15) days notice to ChannelPoint, have an independent accounting
firm, reasonably acceptable to both parties, review the books and records of
ChannelPoint to assure compliance with the provisions of Section 7.12 The
parties agree that the accounting firm shall only report to UHS whether
ChannelPoint is in compliance with the requirements of Section 7.12 and, if the
accounting firm determines that ChannelPoint is not in compliance with such
requirements, the nature of such noncompliance, without disclosing the names of
any ChannelPoint customer or any other proprietary or confidential information
regarding such ChannelPoint customer to UHS.
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13.5 BANKRUPTCY. THE PARTIES INTEND FOR THIS AGREEMENT AND THE LICENSES
TO THE CP EXCHANGE, INSURE, AND SOURCE CODE GRANTED HEREIN TO UHS TO COME WITHIN
SECTION 365(n) OF THE U.S. BANKRUPTCY CODE AND, NOTWITHSTANDING THE BANKRUPTCY
OR INSOLVENCY OF CHANNELPOINT, THIS AGREEMENT AND SUCH LICENSES SHALL REMAIN IN
FULL FORCE AND EFFECT SO LONG AS UHS IS IN MATERIAL COMPLIANCE WITH THE TERMS
AND CONDITIONS HEREOF.
14. AUDIT RIGHTS
AUDIT OF CP. Upon Notice from UHS, no more frequently than every year,
CP shall provide and/or cause its affiliates and agents to provide to any
auditors and inspectors of UHS (including, without limitation, any auditors of a
regulatory agency) who are performing an audit of UHS' business, (a) reasonable
access to the CP all physical locations at which the CP Exchange and CP Services
are available or provided and all other related information, and (b) all
assistance reasonably required in order for UHS to comply with such audits,
solely in order for such auditors and inspectors of UHS to perform an audit or
inspection. Such access shall be during normal business days and hours,
provided, however, that no audits shall be conducted during CP's year-end or
quarter-end audits, and provided further, that UHS shall cooperate with CP by
conducting its audits in such locations and at such time to minimize, to the
extent practicable, disruption to the conduct of CP business (except as may be
necessary to perform security audits). If any such audit results in UHS being
notified that it is not in compliance with any generally accepted or statutory
accounting principle, statutory requirements, or other audit requirements
relating to the CP software, CP Services, CP shall, and shall cause its
affiliates and agents to, at its own expense and within the period of time
specified by such auditor or inspector of UHS, make such necessary changes as
are required for UHS to comply with such audit.
15. GENERAL PROVISIONS
15.1 GOVERNING LAW. This Agreement, including all Exhibits attached
hereto, shall be governed and construed in accordance with the laws of the State
of Delaware without giving effect to principles of conflict of laws.
15.2 ARBITRATION. Any dispute arising out of or relating to this
Agreement or the breach, termination or validity thereof shall be sent to
nonbinding mediation conducted in Denver, Colorado The mediation shall be
conducted by a mediator agreed upon by the parties, provided that if the parties
cannot agree upon a single mediator, each party shall choose one independent
mediator, who shall jointly choose a third mediator, who shall act as the
mediator of the dispute. If mediation does not result in settling the dispute,
the parties may pursue binding arbitration or litigation, but nothing herein
shall require the parties to seek arbitration.
15.3 SEVERABILITY; WAIVER. If any provision of this Agreement is held
to be invalid or unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in any way. The
parties agree to replace any invalid provision with a valid provision that most
closely approximates the intent and economic effect of the invalid provision.
The waiver by either party of a breach of any provision of this Agreement will
not operate or be interpreted as a waiver of any other or subsequent breach.
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15.4 HEADINGS. Headings used in this Agreement are for reference
purposes only and in no way define, limit, construe or describe the scope or
extent of such section, or in any way affect this Agreement.
15.5 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns.
15.6 FORCE MAJEURE. Each party will not be liable for any failure to
fulfill its obligations hereunder due to causes beyond its reasonable control,
including acts or omissions of government or military authority, acts of God,
shortages of materials, telecommunications failures (including any systemic
Internet failures and any interruptions in services of Internet service
providers), transportation delays, earthquakes, fires, floods, labor
disturbances, riots or wars (a "FORCE MAJEURE EVENT"). If a Force Majeure Event
continues for sixty (60) days or more, the party awaiting performance from the
party suffering the Force Majeure Event may terminate this Agreement immediately
upon written notice to such party.
15.7 INDEPENDENT CONTRACTORS. The parties to this Agreement are
independent contractors, and no agency, partnership, joint venture or
employee-employer relationship is intended or created by this Agreement.
15.8 NONSOLICITATION. The parties agree that neither will solicit for
employment, an employee of the other party, without first giving the other party
written notice and receiving written consent for such action. If, after thirty
days of the effective date of such notice, consent is neither granted nor
denied, the other party shall be free to solicit or hire such employee.
15.8 NOTICE. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand or mailed by
registered or certified mail, return receipt requested, first class postage
prepaid, addressed as set forth below. If delivered personally, the date on
which a notice, request, instruction or document is delivered shall be the date
on which such delivery is made and, if delivered by mail, the date on which such
notice, request, instrument or document is received shall be the date of
delivery. Any party hereto may change its address specified for notices herein
by designating a new address by notice in accordance with this Section.
(A) If to UHS:
United HealthCare Services, Inc.
Attn: President Small Group
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
cc: General Counsel
(B) If to CP:
ChannelPoint, Inc.
Attn: General Counsel
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
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15.9 ENTIRE AGREEMENT. This Agreement, including the items attached
hereto, sets forth the entire understanding and agreement of the parties on this
matter and supersedes any and all oral or written agreements or understandings
between the parties as to the subject matter of this Agreement. This agreement
may be modified only by writing signed by both parties.
IN WITNESS WHEREOF, each party has executed this Agreement on its
behalf, all on the day and year first above written.
UNITED HEALTHCARE SERVICES, INC. CHANNELPOINT, INC.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------- -------------------------------
Printed Name: Xxxxxxx Xxxxxxx Printed Name: Xxxxxxx X. Xxxxxx
------------------------ ---------------------
Title: President Title: President & CEO
------------------------------- ----------------------------
Date: 12/30/99 Date: November 30, 1999
-------------------------------- -----------------------------
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LIST OF EXHIBITS
A. INSURE SERVICES DESCRIPTION
B. ACCESS AGREEMENT
C. INSURE AND COMMERCELINK LICENSE
D. ESCROW AGREEMENT
E. CP EXCHANGE ROADMAP
F. SERVICE LEVEL AGREEMENT
G. LETTER OF ENGAGEMENT TEMPLATE
H. ALLOCATION OF LICENSE FEE
I. TRANSACTION FEE SCHEDULE
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EXHIBIT A
SERVICE DESCRIPTION
DESCRIPTION OF INSURE SERVICES
o Product Modeling support for health, dental, pharmacy, term life, long
term care, short and long term disability.
o Customizable workflow engine that enables UHS to codify the workflow
steps and business rules required to process applications.
o Integrated messaging that can automatically generate status messages
via email or fax as applications move through the workflow.
o Underwriting/workflow rules engine to enable routing of cases through
the workflow based on defined risk factors.
o Customizable underwriting desktop that enables UHS to define a rollup
of risk factors relevant to the lines of business being processed and
based on UHS business practices.
o Underwriting drilldown to enable individual underwriters to review key
risk factors and view relevant application information from the Insure
desktop.
o Automated generation of acceptance letters (where applicable to the
line of business).
o Integrated rating and product modeling environment to enable final
rating based on risk factors (for relevant lines of business).
o Application installation interface to electronically transfer customer
information into legacy systems.
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EXHIBIT B
ACCESS AGREEMENT
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EXHIBIT C
INSURE AND COMMERCELINK LICENSE TERMS AND CONDITIONS LICENSE
THIS INSURE AND COMMERCELINK LICENSE (THIS "LICENSE") GOVERNS UHS' (WHICH TERM
INCLUDES ALL UHS AFFILIATES) USE OF INSURE AND COMMERCELINK (AS DEFINED IN THE
ATTACHED AGREEMENT) ON COMPUTER SYSTEMS OWNED BY OR LEASED TO UHS AT ANY UHS
FACILITY. ALL TERMS, CONDITIONS AND LIMITATIONS SPECIFIED IN THE AGREEMENT SHALL
APPLY TO THE LICENSES AND OBLIGATIONS SPECIFIED IN THIS LICENSE.
1. GRANT OF LICENSE. Subject to the terms of this Agreement, ChannelPoint grants
UHS a perpetual (subject to termination as provided in Section 3),
non-exclusive, non-transferable (except as provided in Section 8), royalty-free
license to use Insure and CommerceLink for internal purposes only and in
accordance with the applicable user documentation provided by ChannelPoint and
subject to the restrictions set forth herein and in the Agreement. If
ChannelPoint provides UHS access and documentation to any application program
interface for Insure, through which UHS may integrate Insure and CommerceLink
with and into other software running on UHS' computer systems, (the "APIs")
subject to the terms and conditions of this License, UHS is granted a
non-exclusive, non-transferable, royalty-free license to use the APIs internally
for UHS' integration of its systems with Insure, to connect to appropriate front
end APIs used by UHS in servicing or administering its UHS Insurance Products,
such as, for example, to employee information downloaded from ADP, and to create
application programs that access the API's, ("Application Programs"). UHS may
not provide access to the APIs to any end users or permit any third party to use
or access the APIs or view the documentation thereto, except that UHS may permit
a third party contractor to use and access the APIs and associated documentation
in order to permit such contractor to integrate Insure with UHS' systems,
provided that such contractors are informed that the APIs are proprietary to
ChannelPoint and are bound by written agreement to maintain the APIs in strict
confidence. ChannelPoint and its licensors retain ownership of Insure and
CommerceLink, APIs, and all copies and portions thereof and all rights not
expressly granted herein are reserved by ChannelPoint. UHS may not use Insure,
CommerceLink or APIs for any purpose or in any manner not expressly permitted in
this License or in the Agreement.
2. RESTRICTIONS. UHS may not copy any Insure software except as reasonably
required to use Insure as permitted hereunder and except for a reasonably number
of copies which may be made solely for back-up purposes. UHS must reproduce and
include the copyright notice and any other notices that appear on the original
Insure software on any permitted copies and any media therefor. UHS acknowledges
that Insure and CommerceLink contains certain third party programs which may
include routines to ensure conformity with the terms of the licenses granted in
this Agreement. ChannelPoint shall use commercially reasonable efforts to inform
UHS of any such routines that come to the attention of ChannelPoint. Except as
expressly permitted under Section 1 or the Agreement, UHS shall not (and shall
not allow any third party to) (i) decompile, disassemble, or otherwise reverse
engineer or attempt to reconstruct or discover any source code or underlying
ideas or algorithms or file formats or programming or interoperability
interfaces of Insure or of any files contained or generated using Insure by any
means whatsoever, (ii) remove any product identification, copyright or other
notices,
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(iii) provide, lease, lend, use for timesharing or service bureau purposes or
otherwise use or allow others to use Insure, APIs or any portion thereof to or
for the benefit of third parties, (iv) modify, incorporate into or with other
software or create a derivative work of any part of Insure, (v) disseminate
performance information or analysis (including, without limitation, benchmarks
on the APIs) from any source relating to Insure to any third party, or (vi)
permit or encourage any third party to do the foregoing. UHS has no right to
receive any source code or design documentation relating to Insure, except as
otherwise provided in the Agreement and, with respect to design documentation,
ChannelPoint shall provide access to limited design documentation as necessary
and appropriate for UHS to fully access and use the API's. To the extent that
applicable law would permit UHS to reverse-engineer Insure, UHS agrees to
negotiate with ChannelPoint in good faith prior to such undertaking on the terms
under which ChannelPoint would grant access to the source code. UHS recognizes
and agrees that there is no adequate remedy at law for a breach of this Section
2, that such a breach would irreparably harm ChannelPoint and that ChannelPoint
is entitled to seek equitable relief (including, without limitation, injunctions
with respect to any such breach or potential breach) in addition to any other
remedies available at law.
3. TERMINATION OF LICENSE. This License will terminate automatically if UHS
fails to cure any material breach of this License within thirty (30) days after
written notice is provided to UHS specifying the breach in reasonable detail and
demanding its cure. Upon any termination of this License, UHS shall continue to
have the right and license to use Insure and APIs for a period of two (2) years
in order transition to another product, and upon expiration of such time period,
UHS shall promptly cease all use of Insure and APIs and return or destroy all
copies of Insure and CommerceLink and APIs and all portions thereof and so
certify in writing to ChannelPoint.
4. LIMITED WARRANTY AND DISCLAIMER.
(a) FUNCTIONALITY. ChannelPoint warrants and represents to UHS that for a
period of 180 days from UHS' acceptance of each version of Insure, CommerceLink
and service upgrades, when operated in conformance with this Agreement, such
version of Insure, CommerceLink and service upgrades will materially conform to
the applicable specifications for such version of Insure, CommerceLink and
service upgrades as delivered to UHS. This warranty covers only problems
reported to ChannelPoint during the foregoing warranty period.
(b) OWNERSHIP. ChannelPoint warrants and represents that it owns all right,
title and interest in or has the right to license Insure and CommerceLink to UHS
and that Insure and CommerceLink (solely in the form delivered to UHS) will not
infringe any patent, copyright, trademark, database, trade secret or other
intellectual property right of any third party.
(c) YEAR 2000. ChannelPoint warrants and represents to UHS that Insure and
CommerceLink (solely in the form delivered to UHS), when operated in accordance
with the documentation, are Year 2000 Compliant (as defined below). UHS
acknowledges that the capability of Insure and CommerceLink to manage and
manipulate date-related information appropriately depends on the quality of
information imported or input into Insure and CommerceLink, including the
presence of adequate indicators of century in such information. ChannelPoint
disclaims any warranty relating to the quality of any such imported or input
information. "Year 2000 Compliant" means that Insure and CommerceLink shall be
able to
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provide specific dates and calculate spans of dates, and to record, store,
process and provide true and accurate dates and calculations for dates and spans
of dates within and between the twentieth and twenty-first centuries prior to,
including and following January 1, 2000, including by: (i) correctly processing
correctly inputted day and date data; (ii) recognizing September 9, 1999 as a
valid date; (iii) recognizing the year 2000 as a leap year having 366 days, and
correctly processing February 29, 2000 as a valid leap year date; and (iv)
employing only four-digit year internal year representations. Any claims brought
under this Section 4(b) must be brought within (90) days after January 1, 2000.
(d) REMEDIES. For any breach of the warranties specified in this Section 4
(except as otherwise provided herein) ChannelPoint shall, at UHS' option, (i)
promptly use diligent efforts to revise Insure and CommerceLink, as the case may
be, such that it conforms with the foregoing warranties, (ii) to replace the
non-conforming Insure software with Insure software that conforms with the
foregoing warranties, or (iii) refund sums paid therefor.
(e) DISCLAIMER. EXCEPT FOR THE FOREGOING AND THE WARRANTIES IN THE AGREEMENT,
INSURE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND CHANNELPOINT HEREBY
EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER
EXPRESS, IMPLIED OR STATUTORY, RELATING TO INSURE AND COMMERCELINK INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. CHANNELPOINT DOES NOT WARRANT OR REPRESENT THAT THE USE OF
INSURE OR COMMERCELINK WILL BE UNINTERRUPTED OR ERROR-FREE OR MAKE ANY OTHER
REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF INSURE OR
WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
UHS UNDERSTANDS THAT CHANNELPOINT IS NOT RESPONSIBLE FOR AND WILL HAVE NO
LIABILITY FOR HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY
PERSONS OTHER THAN CHANNELPOINT.
6. NO EXPORT. UHS acknowledges that the laws and regulations of the United
States restrict the export and re-export of commodities and technical data of
United States origin, including Insure and APIs. UHS agrees that it will not
export or re-export Insure or APIs from the United States or the country
originally shipped to by ChannelPoint in any form, without the appropriate
United States and foreign governmental licenses.
7. INDEMNITY. ChannelPoint shall indemnify, hold harmless and defend UHS and its
affiliates from any and all damages, costs and expenses (including attorneys'
fees) arising or resulting from any and all claims, suits, actions or
proceedings brought by any third party against UHS or its affiliates, or their
respective directors, officers, agents and employees, arising from and pay any
resulting damages, costs and expenses finally awarded to a third party or paid
in settlement of any claims, suits or proceedings brought against UHS by any
third party that alleges that Insure or CommerceLink, or UHS' use thereof,
infringes any patent, copyright, trademark or other intellectual property right
of a third party; provided that UHS provides ChannelPoint (a) prompt written
notice of the existence of such claim, suit, action or proceeding, (b) sole
control over the defense or settlement of such claim, and (c) assistance at
ChannelPoint's
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request and expense to the extent reasonably necessary for the defense of such
claim or suit. UHS may, at its own expense, participate in the defense of such
claim with counsel of its own choosing. Notwithstanding the foregoing,
ChannelPoint shall not indemnify UHS for any claims based on (i) any UHS or
third party intellectual property or software incorporated in or combined with
Insure where in the absence of such incorporated item, Insure or CommerceLink
would not have been infringing, (ii) Insure or CommerceLink software that has
been altered or modified by UHS or any third party without ChannelPoint's
consent where in the absence of such alteration or modification Insure would not
be infringing; and (iii) any use of a superseded version of Insure or
CommerceLink for which ChannelPoint has delivered to UHS and UHS has accepted an
updated, revised or repaired version which is not infringing. Upon notice of any
claim of infringement or upon reasonable belief of the likelihood of such a
claim, ChannelPoint shall, at its option, (A) obtain the rights to continued use
of Insure or CommerceLink, (B) substitute other suitable,
functionally-equivalent, non-infringing software, or (C) replace or modify
Insure or CommerceLink so that it is no longer infringing.
8. ASSIGNABILITY. UHS may assign this License to any affiliated company, except
that an assignment to any company that competes with CP shall be void,
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EXHIBIT D
UNITED SOURCE CODE ESCROW AGREEMENT
I. Within ten (10) business days of delivery of the Certificate of Installation
for a particular Release, ChannelPoint shall place the Source Code for such
Release of the ChannelPoint Software, excluding all ChannelPoint Third Party
Software therein, into escrow with Data Securities, Inc. or another reputable,
financially responsible, escrow agent acceptable to Customer ("Escrow Agent"),
under the terms of an escrow agreement to be agreed to in writing by
ChannelPoint, Customer and the Escrow Agent ("Escrow Agreement"). Such Escrow
Agreement shall provide for ChannelPoint to deposit into escrow, (a) on a
monthly basis all Enhancements and Error Corrections (in source and object code
forms) for such Release, and (b) once every six (6) months a complete copy of
the then-current version of the Source Code for such Release. With each such
deposit, ChannelPoint shall also include the then-current Documentation,
Specifications, internal programming specifications used by ChannelPoint to
create the code, a list of ChannelPoint Third Party Software (including a
listing of any modifications made thereto in order for such ChannelPoint Third
Party Software to operate as part of the ChannelPoint Software), and all other
information and materials reasonably necessary for Customer to modify and
perform maintenance using the Source Code. The Escrow Agreement shall also (a)
provide for the Escrow Agent, at Customer's expense, to test and verify that all
such required materials have been deposited by ChannelPoint on a regular basis,
(b) for Customer to have the right to terminate the Escrow Agreement (with a
cure period mutually acceptable to the parties) if ChannelPoint fails to do so,
and (c) for the ongoing escrow of the then-current and all prior versions and
Releases of the ChannelPoint Software that are then being used by Customer at
any Customer Site. Customer shall pay all of the costs incurred in maintaining
such escrow account and such failure of Customer to pay such costs will result
in the return of the source code to ChannelPoint.
II. RELEASE EVENTS. The Escrow Agreement shall provide for the release of the
Source Code to Customer in the following events: (a) ChannelPoint (i) is
adjudicated bankrupt or insolvent by a court of competent jurisdiction, or (ii)
takes steps to declare bankruptcy, wind up, dissolve or liquidate (in each case,
other than for the purposes of an amalgamation, restructuring, or reconstruction
pursuant to which the surviving entity becomes bound by or assumes the
obligations under this Agreement); (b) at any time after the end of the Pilot
Period and within ten (10) business days after ChannelPoint's receipt of written
notice from Customer that ChannelPoint has committed an Egregious Breach of this
Agreement (subject to satisfaction of any dispute resolution procedures set
forth in the Escrow Agreement); (c) termination of the Escrow Agreement for
ChannelPoint's breach of its escrow obligations thereunder; or (d) if, prior to
an initial public offering where ChannelPoint's Series B Preferred Stock is
automatically converted into common stock, ChannelPoint is merged with or
acquired by, or if a controlling interest in ChannelPoint is, or substantially
all of the assets of ChannelPoint to which this Agreement relates are, sold to
or acquired by, Cigna Insurance Company, Aetna/US HealthCare, PacifiCare/FHP,
Prudential Insurance Company, WellPoint, Humana, or other health plans with over
3 million risk-bearing health insured lives, or a successor to or affiliate of
any of the foregoing companies, and Customer elects in writing to terminate this
Agreement on written
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notice given to ChannelPoint within sixty (60) days of the closing of such
merger or acquisition, and, provided further and only in the case of a
termination under this clause (d), Customer shall pay to ChannelPoint as of the
effective date of such termination a fee of $5 million for release of all of the
then-currently escrowed ChannelPoint Software and obtain the right to use all
materials then in escrow, including, without limitation, all Source Code for all
prior Releases.
III. USE OF SOURCE CODE. In the event of any such release event, Customer shall
have the right to modify, or engage third parties to modify on Customer's
behalf, the Source Code in order to use the ChannelPoint Software in a manner
consistent with the license granted in the Agreement to which this Exhibit is
attached, , provided that such use is within the scope of the functionality for
the Releases of the ChannelPoint Software delivered to UHS pursuant to such
Agreement, and any additional design changes that have been mutually agreed to
by the parties. Customer may make no other use of the Source Code, and such
Source Code shall remain the Proprietary Information of ChannelPoint, provided
that Customer shall have no obligation to provide or otherwise permit
ChannelPoint or any third party to use any modifications or Derivative Works of
the ChannelPoint Software created by or for Customer using the Source Code.
Release of the Source Code to Customer shall in no way affect Customer's or any
Internal End Users' or External End Users' ability or right to use and access
the ChannelPoint Datacenter, or the Customer Network via the ChannelPoint
Datacenter; provided that Customer will pay new business acquisition fees and
monthly maintenance fees in accordance with the terms of this Agreement for the
time during which ChannelPoint maintains, at Customer's request, such ability or
right to use and access the ChannelPoint Datacenter or the Customer Network via
the ChannelPoint Datacenter.
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EXHIBIT E
CP EXCHANGE ROADMAP
[...***...]
* CONFIDENTIAL TREATMENT REQUESTED
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EXHIBIT F
SERVICE LEVEL AGREEMENT
ChannelPoint will make the Commerce Exchange available Sunday through Friday at
23 hours per day, with one downtime period of one hour each of those days. The
hour of the day for such planned downtime will be at the sole discretion of
ChannelPoint. Such downtime period is normally scheduled between 2300 and 0400.
ChannelPoint will make the Commerce Exchange available Saturday for 18 hours,
with one downtime period of 6 hours. The specific hours of such downtime period
will be at the sole discretion of ChannelPoint. Such downtime period is normally
scheduled between 1800 and 0400.
The parties agree there will be additional downtime necessary from time to time
to accommodate environmental change issues in the ChannelPoint data center,
during which time it would be impracticable to invoke recovery at an alternative
data center; provided that ChannelPoint shall use its best efforts to give UHS
advanced notice of such downtime.
The parties recognize that ChannelPoint has no control over response time over
the Internet. ChannelPoint has both a primary and backup link to the Internet
backbone, which both parties agree is reasonable to meet ChannelPoint's
responsibilities to provide service under this Agreement.
ChannelPoint and UHS acknowledge that the service levels specified in this
Exhibit L are preliminary based upon early commercial versions of the Commerce
Exchange. ChannelPoint and UHS will work together, to establish more rigorous
standards based upon actual UHS business volume, UHS volume commitments for
Commerce Exchange business and service levels established by other similar
ecommerce businesses. In addition, ChannelPoint and UHS shall negotiate, in good
faith, appropriate remedies for any failure by ChannelPoint to adhere to the
standards so established, taking into account severity, loss of value resulting
from such failure and industry standards; provided that such remedies shall not
be any less favorable than those provided to other similarly-situated users of
the Commerce Exchange.
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EXHIBIT G
LETTER OF ENGAGEMENT TEMPLATE
================================================================================
(PROJECT NAME)
Statement of Work
================================================================================
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================================================================================
(month, year)
================================================================================
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EXECUTIVE SUMMARY
United Healthcare (UHc) requires (high-level description of required
functionality). UHc requests that ChannelPoint (CP) develop a solution to meet
the required functionality. The business requirements for this functionality are
documented by UHc (see Attachment A). ChannelPoint has analyzed these business
requirements and developed a preliminary estimate of the effort (see Attachment
B) and a high-level project plan (see Attachment C) outlining the tasks and
schedule necessary to develop the requested solution.
The purpose of this Statement of Work is to define understanding of the project
scope and UHc's and ChannelPoint's responsibilities relative to this project. In
addition, this document consolidates previously created project documentation
and serves as the approved baseline for the project's business requirements.
We understand the deliverables assigned to ChannelPoint to be:
(itemize project deliverables, including business requirements as appropriate)
NOTE: (if any)
PROJECT SCOPE
SCOPE:
We, at ChannelPoint, understand our responsibilities relative to the (name of
project) to include the following high level requirements:
(restate specific business requirement and/or) See Attachment B for the
ChannelPoint understanding of the UHc business requirements and priorities.
Attachment B was used to determine the scope and estimate for this project.
Any change to the business requirements detailed in Attachment B are subject to
UHc/ChannelPoint project change management procedures.
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UHC RESPONSIBILITIES:
1. (itemize UHc specific responsibilities)
CHANNELPOINT APPROACH
METHODOLOGY:
UHc will review this Statement of Work including the estimated effort and
authorize acceptance of the stated business requirements (See Attachment B) and
initial estimate.
ChannelPoint will provide, as necessary, further refinement of the business
requirements analysis (see Attachment B), development of the functional and
technical design, development, testing, and acceptance criteria.
ChannelPoint (via the Project Manager) will provide, at a minimum, bi-weekly
written feedback to UHc on high-level project status and issues.
Project success will be determined by meeting the authorized business
requirements, within the project timeframe and range of hours estimate.
RESOURCES:
ChannelPoint will assign resources with the appropriate skill set for every
aspect of this project for which ChannelPoint is assigned. ChannelPoint will
commit to the timely delivery of all the phases of the agreed upon components to
ensure a successful project conclusion.
The ChannelPoint Account Manager responsible for the initial engagement of this
project is (insert name). The Project Manager leading the effort for this
project is (insert name). Technical resources (as assigned or specifically
named, if known). (Also name UHc resources and/or 3rd party resources, if
known.)
PROJECT PLAN:
See Attachment C for the high-level project plan.
QUALITY COMMITMENT
The project deliverables will be in conformance with the documented and
authorized requirements. ChannelPoint will conform to documented constraints, of
the UHc environment ((i.e., (specifics as appropriate))).
ASSUMPTIONS
o Timely access to UHc IT and business resources, end-users, and subject
matter experts.
o Timely access to any available system or project documentation.
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o Scope commitment: UHc and ChannelPoint will work together to control the
project scope in order to accomplish timely delivery of all components of
this project. Alternatively, agreed upon changes to project scope may change
the timeframe and estimate for this project.
o (other)
CRITICAL SUCCESS FACTORS
UHc's commitment to provide clear direction, timely resolution to issues, and
access to systems and personnel resources as required.
ChannelPoint's commitment to provide the technical experience and business
expertise in delivering project components within established timeframes and
budgets.
(other)
CONTRACTUAL DISCLAIMER
This Statement of Work and its attachments, including any Letter of Engagement,
is subject to the terms and conditions of the contract between UHc and
ChannelPoint dated (TBD).
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LETTER OF ENGAGEMENT BETWEEN CHANNELPOINT, INC. AND
Client: United HealthCare (UHc)
PROJECT: (name of project)
INITIAL TIMEFRAME: (project due date). This estimated timeframe is
for developing UHc's defined business
requirements for (brief description of
deliverables).
NOTES: ().
PLANNED ACTIVITIES: (brief description of project tasks) will
include the following: (See attached Statement
of Work)
ASSUMPTIONS: UHc project team and Health Plan subject matter
experts will provide ChannelPoint with content
specific information according to the defined
project schedule and project requirements. In
addition, ChannelPoint will need sufficient
access to the UHc systems environment.
TOTAL NOT TO EXCEED COST: (not to exceed costs) (see attached detail)
PREPARED BY: (name)
ChannelPoint, Inc.
(title)
DATE: (date)
APPROVED BY: (name)
SIGNATURE: (signature)
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TITLE: (title)
DATE: (date)
CONTRACTUAL DISCLAIMER: This Letter of Engagement is subject to the
terms and conditions of the contract between UHc
and ChannelPoint dated (date).
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(NAME OF PROJECT)
TASK HOURS BILLING TOTAL % OF
RATE BUDGET
--------------------------------------------------------------------------------
ACCOUNT MANAGEMENT
--------------------------------------------------------------------------------
(detail listing of known tasks)
--------------------------------------------------------------------------------
PROJECT MANAGEMENT
--------------------------------------------------------------------------------
(detail listing of known tasks)
--------------------------------------------------------------------------------
ENGINEERING/CONSULTING
--------------------------------------------------------------------------------
(detail listing of known tasks)
--------------------------------------------------------------------------------
TESTING
--------------------------------------------------------------------------------
(detail listing of known tasks)
--------------------------------------------------------------------------------
IMPLEMENTATION SERVICES
--------------------------------------------------------------------------------
(detail listing of known tasks)
--------------------------------------------------------------------------------
PRODUCTION SUPPORT
--------------------------------------------------------------------------------
(detail listing of known tasks)
--------------------------------------------------------------------------------
MISCELLANEOUS
--------------------------------------------------------------------------------
GRAND TOTAL
--------------------------------------------------------------------------------
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EXHIBIT H
ALLOCATION OF LICENSE FEE
-----------------------------------------------------------------------------------------------------------
[...***...]
-----------------------------------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
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EXHIBIT I
TRANSACTION FEE SCHEDULE
TRANSACTION FEES:
Customer will pay ChannelPoint Transaction Fees, based on a percentage of
Gross Premium Revenues paid by a Policy Holder to UHS for each UHS Insurance
Product purchased by such Policy Holder, at the rates set forth below:
HEALTH AND LIFE INSURANCE PRODUCTS
GROUP SIZE PERCENTAGE OF GROSS PREMIUM TO BE PAID
--------------------------------------------------------------------------------
1-50 Subscribers [...***...]
51-100 Subscribers [...***...]
ANCILLARY INSURANCE PRODUCTS
GROUP SIZE PERCENTAGE OF GROSS PREMIUM TO BE PAID
--------------------------------------------------------------------------------
1 - 100 Subscribers [...***...]
The Parties will negotiate in good faith to determine a comparable rate for
groups of more than 100 Subscribers. Transaction Fees shall be paid monthly,
within thirty (30) days after the receipt by UHS of the Gross Premium Revenues.
As used herein, "Gross Premium Revenues" means all revenues received by UHS for
a UHS Insurance Product purchased by a Policy Holder that has been quoted or
purchased using the Service
The Transaction Fees will be paid on the gross premiums collected on the monthly
invoices billed to a new customer in the twelve month period beginning on the
date of the first such monthly invoice.
* CONFIDENTIAL TREATMENT REQUESTED
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