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EXHIBIT 10.51
SECOND AMENDED INFORMATION SERVICES CONTRACT
THIS SECOND AMENDED INFORMATION SERVICES CONTRACT ("Agreement") dated
as of October 1, 1997, is made by and between The Millers Mutual Fire Insurance
Company, a Texas mutual insurance company ("Millers Mutual"), The Millers
Casualty Insurance company, a Texas insurance company ("Millers Casualty"), and
INSpire Insurance Solutions, Inc., a Texas corporation formally known as
MiliRisk, Inc. ("INSpire"), and together with Millers Mutual and Millers
Casualty, the ("Parties").
PRELIMINARY STATEMENTS
A. Millers Mutual, INSpire and Millers Casualty are parties to an
Amended Information Services Contract, (the "Prior Services
Contract"), pursuant to which INSpire provides certain
information system services to Millers Mutual and Millers
Casualty.
B. Millers Mutual, INSpire and Millers Casualty desire to amend
in its entirety the Prior Services Contract.
C. Millers Mutual and Millers Casualty desire to procure certain
information system services from INSpire in correction with
the business of Millers Mutual and Millers Casualty and
INSpire is willing to provide such services.
NOW, THEREFORE, in consideration of the foregoing preliminary
statements and the mutual covenants and agreements contained herein, the parties
hereto, intending to be legally bound hereby, agree as follows:
STATEMENT OF AGREEMENT
ARTICLE I.
DEFINITIONS
Unless the context otherwise require, the terms defined in this Article
I shall, for the purpose of this Agreement, have the meanings herein specified:
"Effective Date" means October 1, 1997.
"Fiscal Year" shall mean the period from January 1 through December 31
of each year.
"Terms of Agreement" means the period from the Effective Date until the
Agreement is terminated pursuant to Article 5.
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ARTICLE II.
DUTIES AND OBLIGATIONS OF INSPIRE
Section 2.1 Information System Services: INSpire shall provide
information system services for and on behalf of Millers Mutual and Millers
Casualty which shall include, but shall not be limited to:
(a) Telecommunications services;
(b) Hardware services,
(c) Application software services;
(d) System software services;
(e) Network services;
(f) System integration services.
ARTICLE III.
COMPENSATION. EXPENSES AND PAYMENT
Section 3.1 Fees. The compensation due INSpire from Millers Mutual and
Millers Casualty for services provided pursuant to Section 2.1 of this agreement
is as follows:
Category A* Category B**
PERCENT OF DIRECT PERCENT OF NET
CALENDAR YEAR WRITTEN PREMIUM WRITTEN PREMIUM MONTHLY MINIMUM
1997 6.0% 6.0% $375,000
1998 5.5% 5.5% $300,000
1999-2001 5.0% 5.0% $275,000
* Category A represents premiums written by Millers Mutual and Millers
Casualty for which Millers Mutual and Millers Casualty utilize the
services provided pursuant to Section 2.1 to process policies and/or
claims.
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** Category B represents premiums written by Millers Mutual and Millers
Casualty for which Millers Mutual and Millers Casualty utilize the
services provided pursuant to Section 2.1 to process management and
bureau report processing only.
At the request and approval of Millers Mutual and Millers Casualty, INSpire will
make modifications to INSpire supplied application software. Work will be done
at a rate of $130.00 per hour. Cost for any modifications required by Millers
Mutual and Millers Casualty of application software licensed by Millers Mutual
or Millers Casualty from sources other than INSpire will be the responsibility
of Millers Mutual and Millers Casualty.
Section 3.2 Invoicing and Payment. INSpire shall xxxx Xxxxxxx Mutual
and Millers Casualty monthly for services within 15 days after the end of each
calendar month during the Term of Agreement. Payment shall be made by Millers
Mutual and Millers Casualty within 30 days after the delivery of such invoice.
Section 3.3 Late Payment. Any amount owing from Millers Mutual and/or
Millers Casualty to INSpire that has not been paid by the due date shall be
subject to a late payment charge of 1% per month.
ARTICLE IV.
ACCESS TO INFORMATION, BOOK AND RECORDS
INSpire and its duly authorized representatives shall have access, to
the extent necessary to perform the services pursuant to Section 2.1, to each of
Millers Mutual and Millers Casualty' s offices, facilities, application software
and records wherever located, in order to discharge INSpire's responsibilities
hereunder; provided, however, Millers Mutual and Millers Casualty shall provide
and make available to INSpire and its duly authorized representatives at
INSpire's Fort Worth, Texas, USA offices, at INSpire's request, all such records
required by INSpire to perform its duties pursuant to this Agreement. All
records and materials furnished to INSpire by Millers Mutual and Millers
Casualty in performance of this Agreement shall at all times during the Term of
Agreement remain the property of Millers Mutual and Millers Casualty, as
appropriate.
ARTICLE V.
TERM AND TERMINATION OF THE AGREEMENT
Section 5.1 Initial Term. This Agreement shall be effective from the
Effective Date and shall continue for five years hereafter (the "Initial Term");
subject, however, to the terms of Section 5.2 hereof. At the end of the Initial
Term, this Agreement shall continue in force and effect for subsequent three (3)
year periods unless terminated by any Party by written notice at least 180 days
prior to the anniversary date of the Effective Date.
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Section 5.2 Termination. This Agreement may be sooner terminated on the
first to occur of the following:
a. Termination by Mutual Agreement
In the event the Parties shall mutually agree in writing, this
Agreement may be terminated on the terms and dates stipulated
therein.
b. Uncorrected Material Breach
In the event any Party shall fail to discharge any of its
material obligations hereunder, or shall commit a material
breach of this Agreement, and such default or breach shall
continue for a period of sixty (60) days after any other Party
has served notice of such default, this Agreement may then be
terminated at the option of any nonbreaching Party by notice
thereof to the breaching Party.
Section 5.3 Effects of Termination. Except for covenants or other
provisions herein that, by their terms, expressly extend beyond the Term of
Agreement, the Parties' obligations hereunder are limited to the Term of
Agreement.
Section 5.4 Reimbursement by INSpire. In the event of termination under
this Agreement, INSpire shall reimburse Millers Mutual and Millers Casualty
within 30 days after such termination for fees paid by Millers Mutual and
Millers Casualty but unearned by INSpire.
Section 5.5 Force Majeure. If any Party shall be prevented from
performing any portion of this Agreement (except the payment of money) by causes
beyond its control, including labor disputes, civil commotion, war, governmental
regulations or controls, casualty, inability to obtain material or services or
acts of God, the defaulting party shall be excused from performance for the
period of the delay and for a reasonable time thereafter.
ARTICLE VI.
INDEMNIFICATION OF INSPIRE
Section 6.1 Limitation of Liability. In providing services hereunder,
INSpire shall have a duty to act and cause its affiliates and designees to act,
in a reasonably prudent manner. Neither INSpire, nor any officer, director,
employee or agent of INSpire shall be liable to Millers Mutual and/or Millers
Casualty for any error of judgement or for any loss incurred by Millers Mutual
and/or Millers Casualty in connection with the matters to which this Agreement
relates, except a loss resulting from the gross negligence or willful misconduct
on the part of INSpire.
Section 6.2 Indemnification. Millers Mutual and Millers Casualty hereby
agree to indemnify and hold harmless INSpire from and against any and all
claims, causes of action, liabilities, damages, costs, charge, fees, expenses
(including reasonable attorney's fees and expenses to be reimbursed as
incurred), suits, orders, judgements, adjudications and losses of
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whatever nature and kind which INSpire or its affiliates or designees or for
which INSpire or its affiliates or designees become liable as the result of the
performance of INSpire's obligations and duties pursuant to this Agreement;
provided, INSpire shall not be indemnified for gross negligence or willful
misconduct on the part of INSpire.
ARTICLE VII.
MISCELLANEOUS
Section 7.1 Relationship of Parties. This Agreement does not create a
partnership, joint venture or association; nor does this Agreement or the
operations hereunder, create the relationship of lessor and lessee or xxxxxx and
bailee. Nothing contained in this Agreement or in any agreement made pursuant
hereto shall ever be construed to create a partnership, joint venture or
association, or the relationship of lessor and lessee or xxxxxx and bailee, or
to impose any duty, obligation or liability that would arise therefrom with
respect to either or both of the Parties. Specifically, but not by way of
limitation, except as otherwise expressly provided for herein, nothing contained
herein shall be construed as imposing any responsibility on INSpire for the
debts or obligations of Millers Mutual or Millers Casualty or any of its
affiliates. It is hereby expressly understood that INSpire is hereby engaged by
Millers Mutual and Millers Casualty to provide information system services as an
agent of Millers Mutual and Millers Casualty. INSpire, its affiliates and
designees shall have the right to render similar services for other business
entities and persons, including its own, whether or not engaged in the same
business as Xxxxxx'x Mutual or Millers Casualty, and may enter into such other
business activities as INSpire and its affiliates, in their sole discretion, may
determine.
Section 7.2 No Third Party Beneficiaries. Except to the extent a third
party is expressly given rights herein, any agreement herein contained,
expressed or implied, shall be only for the benefit of the Parties and their
respective legal representatives, successors and assigns, and such agreements or
assumptions shall not inure to the benefit of any other party whomsoever, it
being the intention of the parties hereto that no person or entity shall be
deemed a third party beneficiary of this Agreement except to the extent a third
party is expressly given rights herein.
Section 7.3 General Representations. Each Party represents and warrants
that on the Effective Date: (i) it is a corporation, duly established, validly
existing and in good standing under the laws of its state or jurisdiction on
incorporation, with power and authority to any on the business in which it is
engaged and to perform its respective obligations under this Agreement; (ii) the
execution and delivery of this Agreement have been duly authorized and approved
by all requisite corporate actions; (iii) it has all the requisite corporate
power and authority to enter into this Agreement and to perform its obligations
hereunder; and (iv) the execution and delivery of this Agreement do not, and
consummation of the transactions contemplated herein will not, violate any of
the provisions of its charter or bylaws or any applicable state or federal laws
applicable to them.
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Section 7.4 Assignment. No assignment of this Agreement or any of the
rights or obligations set forth herein by any Party shall be valid without the
specific written consent of the other Parties.
Section 7.5 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered
personally, mailed by first class mail postage prepaid and return receipt
requested or sent by recognized overnight delivery service or facsimile
transmission to the address below indicated:
If to Millers Mutual: The Millers Mutual Fire Insurance Company
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attn: Xxx Xxxxxx
Facsimile: 817.348.3765
If to Millers Casualty: The Millers Casualty Insurance Company
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attn: Xxx Xxxxxx
Facsimile: 817.348.3765
If to INSpire: INSpire Insurance Solutions, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00x00-0000
Attn: Xxxxx X. Xxxxxx
Facsimile: 817.348.3786
Or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Notice
so given shall, in the case of notice so given by mail, be deemed to be given
and received on the fourth calendar day after posting, in the case of notice so
given by recognized overnight delivery service on the date of actual delivery
and, in the case of notice so given by facsimile transmission or personal
delivery, on the date of actual transmission or, as the case may be, personal
delivery.
Section 7.6 Failure to Pursue Remedies. The failure of any party to
seek redress for violation of, or to insist upon the strict performance of, any
provision of this Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an original
violation.
Section 7.7 Cumulative Remedies. The rights and remedies provided by
this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive its right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights and parties
may have by law, statute, ordinance or otherwise.
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Section 7.8 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of all of the parties and, to the extent permitted by this
Agreement, their successors, legal representatives and assigns.
Section 7.9 Interpretation. Throughout this Agreement, nouns, pronouns
and verbs shall be construed as masculine, feminine, neuter, singular or plural,
whichever shall be applicable. All references herein to "Articles," "Sections"
and paragraphs shall refer to corresponding provisions of this Agreement.
Section 7.10 Headings. Headings are solely for convenience and ease of
reference and are not to be considered in the construction or interpretation of
any provision of this Agreement.
Section 7.11 Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted unless such invalid or unenforceable
provision affects the fundamental purpose of this Agreement.
Section 7.12 Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, with
the same effect as if all parties hereto had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument. This Agreement may also be executed and
delivered by exchange of facsimile transmissions of originally executed copies.
Section 7.13 Integration. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
Section 7.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW OF
CONFLICTS, OF THE STATE OF TEXAS.
Section 7.15 Arbitration.
(a) To the fullest extent permitted by law, any controversy or
claim arising out of or relating to any alleged breach shall
be resolved by arbitration by a panel of three (3) arbitrators
under the American Arbitration Association ("AAWA")
Arbitration Rules in force ( the "AAA Rules") in accordance
with the following:
(1) In the event of any conflict between the AAA Rules and the
provisions of this Agreement, the provision of this Agreement
shall prevail.
(2) Either party may refer a matter to arbitration by written
notice to the other party by giving notice as provided in this
Agreement.
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(3) The place of the arbitration shall be in Fort Worth, Texas.
(4) The claimant party shall appoint one arbitrator and the
respondent party shall appoint one arbitrator and the two
arbitrators so appointed shall appoint the third arbitrator,
in accordance with the AAA Rules. In the event of an inability
to agree on a third arbitrator, the appointing authority shall
be the AAA.
(5) The decision of the arbitrators shall be made by majority
vote and shall be in writing.
(6) The decision of the arbitrators shall be final and binding on
the parties save in the event of fraud, manifest mistake or
failure by any of the arbitrators to disclose any conflict of
interest.
(7) The decision of the arbitrators may be enforced by any court
of competent jurisdiction and may be executed against the
person and assets of the losing party in any jurisdiction.
(b) In the event any dispute is submitted to arbitration pursuant
to Section 7.15(a) above, the panel of arbitrators may, if it
deems such award appropriate, award a party costs and expenses
incurred by such party in enforcing its rights. Except as so
awarded, each party shall bear its own costs and expenses of
enforcing its rights to arbitrate under this Section 7.15.
(c) Except for arbitration proceedings pursuant to Section 7.15(a)
above, no action (other that the enforcement of any
arbitration decision) or lawsuit shall be brought by or
between INSpire and Millers Mutual and Millers Casualty
concerning or arising out of this Agreement.
Section 7.16 Agreement to Perform Necessary Acts. Each party agrees to
perform any further acts and execute and deliver any and all further documents
and/or instruments, which may be reasonable necessary to carry out the
provisions of this Agreement and the transactions contemplated hereby.
(SIGNATURE PAGE TO FOLLOW)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
THE MILLERS MUTUAL FIRE
INSURANCE COMPANY
By:
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Name:
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Title:
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THE MILLERS CASUALTY
INSURANCE COMPANY
By:
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Name:
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Title:
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INSPIRE INSURANCE SOLUTIONS, INC.
By:
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Name:
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Title:
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