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EXHIBIT (10.1)
AGREEMENT
This Agreement is made by and between NATIONAL RESEARCH CORPORATION, a
Nebraska corporation ("NRC"), and THE PERMANENTE MEDICAL GROUP, INC., a
California corporation ("TPMG"), and XXXXXX FOUNDATION HEALTH PLAN, INC., a
California nonprofit public benefit corporation ("KFHP"), for the benefit of
its Northern California Region. TPMG and KFHP are hereinafter referred to
together as "Kaiser".
WHEREAS, the parties to this Agreement have entered into a Memorandum of
Understanding dated January 18, 1994 ("MOU"), which describes the terms of an
arrangement between the parties regarding a Member/Patient Survey Project to be
undertaken by NRC for Kaiser, and in an Addendum to the MOU describes a
Competitor Benchmark Study and the trial of certain Listening System Software
(TM); and
WHEREAS, the parties desire to enter into this Agreement to set forth the
terms and conditions governing the transaction as described herein which shall
supersede the MOU.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and intending to be legally bound, the parties agree as follows:
1. SCOPE OF SERVICES/CHANGE REQUESTS.
(a) NRC shall provide services to Kaiser as described in the Task
Specification for Member/Patient Survey Project, attached hereto as Attachment
A, which Attachment is incorporated in this Agreement by this reference.
Additionally, NRC shall provide services to Kaiser as described in the Task
Specification for Competitor Benchmark Study, attached hereto as Attachment B,
which Attachment is incorporated in this Agreement by this reference. Such
Task Specifications may, during the term of this Agreement, be amended by
mutual agreement of the parties with such amendments to be in writing and
executed by authorized representatives of the parties. NRC shall also provide
KFHP's Northern California Regional Office the Listening System Software (TM)
on a trial usage basis as described in Attachment C, which Attachment is
incorporated in this Agreement by this reference.
(b) Change Requests. Kaiser may request changes to the services described
in Section 1(a) above during the course of this Agreement. NRC shall make
reasonable efforts to accommodate such changes within the scope and schedule of
this Agreement. If any requested change is of such a material nature as to
result in additional costs and expenses or delay in the schedule, NRC shall
immediately notify Kaiser of the amount of such additional cost and the impact
on the schedule. Kaiser shall promptly notify NRC of its desire to implement
such change. No such change, however, shall be implemented until the details
and cost of such change is agreed upon in writing by NRC and Kaiser.
2. ASSIGNED PERSONNEL.
(a) NRC will provide qualified and trained personnel to perform the Task
Specifications, Attachments A and B hereto, at NRC's offices in Lincoln,
Nebraska. NRC shall
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designate a project leader who will be the principal contact between Kaiser and
NRC. NRC project leader will be Xxxxx Copper. Kaiser will also designate a
principal contact person. Xxxxxx'x principal contact person will be J. Xxxx
Xxxxxx. NRC shall assign and direct its employees in such a manner as
necessary to perform the Task Specifications, Attachments A and B hereto.
(b) During the Initial Term or any renewal term of this Agreement, and
continuing for a period of one (1) year thereafter, NRC and Kaiser agree not to
hire, nor to engage on contract, nor to solicit the employment of any of the
other's employees with whom there is contact during an assignment under this
Agreement, without the written authorization of the other.
3. TERM. This Agreement shall become effective as of February 1, 1994 (the
"Effective Date"), and shall continue in effect through March 31, 1996 unless
earlier terminated by one of the parties hereto in accordance with the
provisions of paragraph 6 hereinbelow (the "Initial Term").
4. COMPENSATION AND TERMS OF PAYMENT. The compensation payable by Kaiser
to NRC shall be as follows:
(a) The compensation for performance by NRC of the Task Specification for
the Member/Patient Survey Project, as specified in Attachment A hereto, shall
be * Dollars ($ * ) for the period commencing with the Effective Date of this
Agreement through *, and the compensation to be paid to NRC by Kaiser for the
performance of such Project during the period of * through * shall be *
Dollars ($ * ). The compensation payable by Kaiser to NRC for the period from
the Effective Date through * is payable as follows:
On or before * $ *
Upon initiation of sampling $ *
On * and the first day of each
month thereafter (eight payments)
through * $ *
Final payment for *, upon receipt
and acceptance by Kaiser of the full
* sample data set and performance
reports for facilities and departments $ *
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
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The compensation payable by Kaiser to NRC for the period from * through * is
payable as follows:
Commencing * and as of
the first day of each month through
* $ *
Final payment for *, upon receipt
and acceptance by Kaiser of the full
* sample data set and performance
reports for facilities and departments
(no earlier than * ) $ *
(b) The compensation for performance by NRC of the Task Specification for
the Competitor Benchmark Study, as set forth in Attachment B hereto, shall be
the sum of * Dollars ($ * ), payable one-half upon execution of this
Agreement and one-half on or before *.
(c) In addition to the payments set forth in subparagraphs 4(a) and (b)
hereof, Kaiser shall reimburse NRC for NRC's actual costs for reasonable travel
expenses (including air travel costs, hotel, meals and incidental expenses) for
NRC personnel, and overnight express delivery service charges when such travel
expenses or overnight express deliveries are requested by representatives of
Kaiser. In-house photocopying, routine postage and telephone (within
California) are excluded from reimbursable expenses and shall not be charged to
Kaiser. It is estimated that air travel, hotel, meals and incidental expenses
for a two-day trip to the offices of Xxxxxx'x Northern California Region will
approximate One Thousand Five Hundred Dollars ($1,500), and four to six such
trips will be required during each twelve-month period. NRC will xxxx Xxxxxx
for the foregoing out-of-pocket expenses on a monthly basis and shall furnish
to Kaiser copies of bills for which expense reimbursement is being requested.
Reimbursable expenses shall not exceed * Dollars ($ * ).
(d) Records. NRC shall maintain complete and accurate accounting records,
in a form in accordance with generally accepted accounting principles, to
substantiate NRC's fees and expenses under this Agreement. Kaiser shall have
the right to review these records during the term of this Agreement. If this
Agreement is subject to the provisions of Section 952 of P.L. 96-499, which
governs access to books and records of subcontractors of services to Medicare
providers where the cost or value of such services under the contract exceeds
Ten Thousand Dollars ($10,000.00) over a twelve (12) month period, then NRC
shall permit
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
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representatives of the Secretary of the Department of Health and Human Services
and the Comptroller General, in accord with criteria and procedures contained
in applicable Federal regulations, to have access to their books, documents and
records as necessary to verify the cost of services provided under this
Agreement.
(e) Other charges in compensation or expense reimbursement pursuant to this
paragraph shall occur only on mutual written agreement of the parties. In no
event will equipment or software purchased by NRC be billed to or reimbursable
by Kaiser without the prior written consent of Kaiser.
(f) Kaiser and NRC acknowledge and agree that increases in the postal rates
may be implemented by the United States Postal Service subsequent to the
Effective Date. Any such postal rate increases will be passed through to
Kaiser on a dollar-for-dollar basis. Other changes in compensation or expense
reimbursement pursuant to this paragraph shall occur only on mutual written
agreement of the parties.
5. INVOICES. NRC will invoice Kaiser for compensation payable to NRC for
services rendered in connection with the performance of the Task Specifications
and for all reimbursable out-of-pocket expenses. Kaiser shall make payment to
NRC in U.S. Dollars of all amounts due and owing within * ( * ) days after
receipt of invoice. Kaiser shall pay a late payment fee of * percent (*%) per
month for the outstanding balance of any amount past due for more than three
(3) business days after receipt of notice from NRC that such amount is past
due.
6. TERMINATION.
(a) Termination For Default. If either NRC or Kaiser shall at any time
during the Initial Term, or any renewal term hereof, fail or refuse to perform
in accordance with any material provision of this Agreement, then the other
party may serve upon such defaulting party a notice of intention to terminate
this Agreement, which notice shall specify the claimed neglect, failure or
refusal, and shall be served in accordance with the NOTICES section of this
Agreement. If within thirty (30) days after the date of providing such written
notice, the defaulting party shall not have cured the default indicated in such
Notice, or presented a plan acceptable to the other party to cure such default,
then upon the expiration of such thirty (30) day period, the other party may,
at its option, elect to terminate this Agreement. In the event of termination
by Kaiser due to NRC's uncured default, NRC shall, within thirty (30) days
after termination, refund to Kaiser all amounts paid by Kaiser for NRC's
services but not yet performed through the date of termination, including any
prepaid out-of-pocket expenses reimbursed by Kaiser through the date of
termination. The right of either party to terminate this Agreement for default
shall not be affected by such party's failure to take action with respect to
any previous default.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
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(b) Termination Without Cause. At its option and for its convenience,
Kaiser may terminate this Agreement for any reason upon thirty (30) days
written notice to NRC. NRC shall be entitled to payment for all amounts
specified herein for its services performed through the date of termination,
and reimbursed for its out-of-pocket expenses through the date of termination,
including expenses incurred for inventory of materials relating to this
Agreement which could not otherwise be used by NRC customers.
(c) Actions on Termination. NRC shall not perform any more services or
incur any further costs claimed to be reimbursable hereunder after the date of
the termination notice, without the prior written approval of Kaiser. Upon
termination, NRC shall act in such a manner as to facilitate Xxxxxx'x or any
new consultant's assumption of duties; provided however, that NRC shall not be
obligated to provide to any new consultant any NRC proprietary materials or NRC
confidential information utilized by NRC in its performance pursuant to this
Agreement.
7. CONFIDENTIAL INFORMATION. NRC acknowledges that it and its employees,
agents or representatives may, in the course of performance of this Agreement,
require access to proprietary or confidential information of Kaiser and will be
exposed to or acquire information which is proprietary to or confidential to
Kaiser, its affiliated companies, vendors or Kaiser members or employees. This
information may include data relating to survey results, identities of Kaiser
members or employees involved in the survey, financial data, personnel records,
computer programs, marketing information and, to the extent marked proprietary
or confidential, any other information relating to the business affairs of
Kaiser. All such information obtained by NRC or its employees, agents and
representatives, shall be deemed to be the confidential and proprietary
information of Kaiser ("Confidential Information"). NRC agrees to hold such
information in strict confidence and not to disclose such information for any
purposes other than the provision of services to Kaiser under this Agreement
and to take appropriate actions by instruction or agreement with each of its
employees, contractors, agents and representatives to keep such information
confidential and NRC will, upon written request by Kaiser, have all NRC
employees, contractors, agents and representatives performing work under this
Agreement sign the confidentiality agreements satisfactory to Kaiser. NRC
further acknowledges that Kaiser has a legal obligation to keep all
Confidential Information confidential, including without limitation, all
patient records, medical records, test results and personnel records; and that
the unauthorized disclosure of the same could irreparably damage Kaiser and its
affiliated corporations; and that by reason of its duties under its Agreement,
NRC may come into possession of such Confidential Information. If NRC breaches
this provision, damages may not be an adequate remedy and Kaiser shall be
entitled to injunctive relief to restrain such breach, threatened or actual.
Upon termination of this Agreement, NRC shall return to Kaiser all Confidential
Information in NRC's possession. This paragraph shall survive the termination
of this Agreement.
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8. TITLE AND POSSESSION. NRC does not convey to Kaiser, nor does Kaiser
obtain any rights in any software programs, systems, data or materials provided
by NRC in the course of performing this Agreement. NRC shall retain all
rights, title and interest in the Listening System Software (TM) provided to
Kaiser for its use as stated in Attachment C hereto. Kaiser is hereby granted
all rights of ownership and the right to produce or copy all of the survey
response data and periodic reports provided by NRC to Kaiser as specified in
the Task Specification for Member/Patient Survey Project, Attachment A hereto,
or the Task Specification for Competitor Benchmark study, Attachment B hereto.
All survey forms, results, data, member lists; all other information and
materials provided by Kaiser; and all survey reports and other reports produced
by NRC under this Agreement, shall remain the property of Kaiser and NRC shall
return all such information and material to Kaiser upon completion or earlier
termination of this Agreement unless otherwise instructed in writing by Kaiser.
9. WARRANTY.
(a) NRC warrants that the services provided hereunder will be performed in
a good and workmanlike manner, and that the deliverables provided by NRC to
Kaiser will conform to the applicable Task Specification. NRC's sole
obligation under this warranty is to correct and adjust the deliverables which,
within a reasonable time, are found to not conform to this warranty.
(b) NRC does not warrant or represent that the services or products
provided pursuant to this Agreement will be capable of achieving any particular
result in Xxxxxx'x business, or that all errors, defects or deficiencies can or
will be found or corrected, or that any deliverables which are the subject of
the Task Specification will be error free. NRC'S ENTIRE LIABILITY AND XXXXXX'X
EXCLUSIVE REMEDY FOR DEFECTIVE PERFORMANCE OR NON-PERFORMANCE UNDER THE
WARRANTY CONTAINED IN THIS SECTION 9 SHALL BE LIMITED TO CORRECTION AND
ADJUSTMENT OF OR SUBSTITUTION FOR THE SERVICES OR PRODUCTS WHICH DO NOT COMPLY
WITH THIS WARRANTY, PROVIDED THAT NRC PROMPTLY AND IMMEDIATELY CORRECT, ADJUST
OR SUBSTITUTE THE SERVICES OR THE PRODUCTS WHICH DO NOT COMPLY WITH THIS
WARRANTY AND FURTHER PROVIDED THAT KAISER SHALL ALLOW A REASONABLE OPPORTUNITY
FOR NRC TO PROVIDE SUCH REMEDY AND SHALL ASSIST NRC, AT NRC'S EXPENSE, IN
IDENTIFYING AND ANALYZING SUCH DEFECTS OR DEFICIENCIES.
(c) THE LIMITED WARRANTY PROVIDED HEREIN IS IN LIEU OF ALL OTHER
WARRANTIES, GUARANTEES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW, OR
FROM A COURSE OF DEALING OR USAGE OF TRADE.
(d) IN NO EVENT SHALL NRC BE OBLIGATED OR LIABLE TO KAISER FOR ANY
CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THE SERVICES OR PRODUCTS PROVIDED BY NRC HEREUNDER, OR ANY DELIVERABLES
PROVIDED BY NRC TO KAISER
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HEREUNDER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT, EVEN IF NRC
HAS BEEN ADVISED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH
DAMAGES OR LOSS.
10. INDEMNITY.
(a) Kaiser shall, except to the extent of NRC negligence or willful
misconduct, indemnify and hold NRC harmless from and against any and all
liabilities, claims, actions, proceedings or suits against NRC by any
physician, specialist or other employee of Kaiser, or by any third party
arising out of or connected with the performance by NRC pursuant to this
Agreement and the Task Specification, or any use by Kaiser of the deliverables
produced by NRC pursuant to the agreement and Task Specification. This
indemnity shall include all costs, attorneys' fees and damages which NRC is or
may be required to pay by reason of any claims, actions, proceedings or suits
against NRC. NRC shall give Kaiser written notification of any claims,
actions, proceedings or suits against NRC within the scope of this
indemnification. Upon receipt of such notice, Kaiser shall, at its expense,
defend NRC, and NRC shall provide Kaiser with reasonable assistance and
cooperation to facilitate the defense or settlement of such claim, action,
proceeding or suit.
(b) NRC shall indemnify and hold harmless Kaiser, its officers, agents,
affiliates and employees from and against all liabilities, claims, losses,
damages, demands and expenses, including reasonable attorneys' fees, arising
out of NRC's breach of Section 7, Confidential Information and for personal
injury or property damage to the extent that any such liabilities, claims,
losses, damages, demands or expenses are caused by any act, error or omission
of NRC, its officers, employees, agents or consultants. This indemnity shall
include all costs, attorneys' fees and damages which Kaiser is or may be
required to pay by reason of any claims, actions, proceedings or suits against
Kaiser. Kaiser shall give NRC written notification of any claims, actions,
proceedings or suits against Kaiser within the scope of this indemnification.
Upon receipt of such notice, NRC shall, at its expense, defend Kaiser, and
Kaiser shall provide NRC with reasonable assistance and cooperation to
facilitate the defense or settlement of such claim, action, proceeding or suit.
11. INDEPENDENT CONTRACTOR. NRC is an independent contractor and engages
in the operation of its own business, and neither party is or shall be
considered to be the agent of the other party for any purposes. Neither party
has authorization to enter into any contracts, assume any obligations or make
any warranties or representations on behalf of the other party. Nothing in
this Agreement shall be construed to establish a relationship of co-partner or
joint venturer between the parties. Kaiser shall not be responsible to NRC,
NRC's employee or any governing body for any payroll-related taxes related to
the performance of this Agreement.
12. INSURANCE.
a. NRC shall procure and maintain in effect the following policies of
insurance covering liability arising from or related to services performed or
to be performed by NRC under this Agreement:
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(1) all insurance coverage required by Federal and State law, including
worker's compensation and employer's liability all with statutory minimum
limits;
(2) general comprehensive liability insurance with not less than a Two
Million Dollar ($2,000,000.00) combined single limit and aggregate, including
personal injury, death, sickness or disease of any persons and injury to or
destruction of property, including loss of use resulting therefrom, and also
including a contractual liability endorsement covering NRC's liability under
Section 8, Indemnity;
(3) automobile liability insurance (bodily injury and property damage
liability) with not less than a One Million Dollar ($1,000,000.00) combined
single limit each accident for bodily injury and property damage combined,
including coverage for all owned, hired and non-owned automobiles; and
(4) professional liability (errors and omissions) insurance with a limit
of not less than One Million Dollars ($1,000,000.00).
b. All insurance required under this Section shall be carried by companies
acceptable to Kaiser and the insurance required under subsections 12a(2) and
12a(3) shall name Kaiser and its affiliate, Xxxxxx Foundation Hospitals/Health
Plan, Inc., as additional insureds. All insurance shall also contain
cross-liability endorsements, be primary and noncontributing with respect to
any policies carried by Kaiser, and shall state that any coverage carried by
Kaiser shall be excess insurance.
c. NRC shall, upon execution of this Agreement, provide Kaiser with a
certificate of insurance evidencing these coverages, naming Kaiser and its
affiliate as additional insureds as required and providing that no such
coverage shall be subject to cancellation or material reduction in coverage
without thirty (30) days prior written notice to Kaiser. The insurance
requirements hereunder shall not limit or relieve NRC of its duties,
responsibilities or liabilities under this Agreement.
13. FORCE MAJEURE. Neither party shall be responsible for any failure to
comply with, or for any delay in, the performance of the terms of this
Agreement, including but not limited to, delays in delivery, to the extent that
such failure or delay is directly or indirectly caused by or results from
events of force majeure beyond the reasonable control of the party claiming a
failure to perform or delay under this paragraph.
14. TAXES. If Kaiser is exempt from payment of taxes, Kaiser shall
provide NRC with a certification of exemption or comparable document issued by
the applicable taxing
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authority, If exemption of Kaiser from taxes is not established, Kaiser shall
promptly pay to NRC an amount equal to any excise, use, privilege, sales, or
any other tax (except income and franchise taxes of NRC), assessment, or any
import duties, imposed by or under authority of any federal, state, provincial,
or local law, and to be paid by NRC with respect to the goods and services
furnished under this Agreement or any Attachment hereto. Notwithstanding any
other provision in this Agreement, in no event shall Kaiser be responsible to
NRC, the employees of NRC or any governing body for taxes or withholding on the
payroll of NRC.
15. NOTICES. All notices of any kind required or permitted under the
terms of this Agreement shall be in writing and shall be delivered by mailing a
copy thereof by certified or registered United States mail, postage prepaid,
with return receipt requested, or by overnight express delivery, addressed as
follows, or to such other address as either party shall give notice of from
time to time:
If to NRC:
NATIONAL RESEARCH CORPORATION
Gold's Galleria
0000 "X" Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx, President
If to Kaiser:
THE PERMANENTE MEDICAL GROUP, INC.
Executive Offices
0000 Xxxxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, MD
Associate Executive Director
XXXXXX FOUNDATION HEALTH PLAN, INC.
Executive Offices
0000 Xxxxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Vice President
16. Intentionally Omitted.
17. NO PUBLICITY. NRC shall not, without the prior written consent of
Kaiser, use in advertising, publicity or otherwise the name of Xxxxxx
Foundation Health Plan, Inc., Xxxxxx Foundation Hospitals, The Permanente
Medical Group, Inc. or the Xxxxxx Permanente Medical Care Program, or refer to
the existence of this Agreement in any press releases, advertising or materials
distributed to prospective customers or other third parties.
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18. BINDING EFFECT; ASSIGNMENT. This Agreement shall not be assigned by
either party without the prior written consent of the other, except that Kaiser
may assign this Agreement or any interest herein, to any organization directly
associated with the Xxxxxx Permanente Medical Care Program, or to (i) any
parent, subsidiary or affiliated corporation of Kaiser; or (ii) any corporation
with which Kaiser may merge or consolidate, except that Kaiser shall remain
responsible to NRC for the full performance of the terms of this Agreement.
Nothing in this Agreement, whether express or implied, is intended to confer
any rights or remedies under or by reason of this Agreement on any party other
than the parties hereto and their respective successors, nor is anything in
this Agreement intended to relieve or discharge the obligation or liability of
any third party to either party to this Agreement, nor shall any provision give
any third party any right of subrogation or action against either party to this
Agreement.
19. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter hereof and
supersedes all prior agreements, representations, and understandings of the
parties hereto with respect to the subject matter hereof, including without
limitation, the MOU. This Agreement may be supplemented, modified or amended
only by a written instrument duly executed by authorized representatives of
each of the parties hereto.
20. ATTORNEYS' FEES. If any action is commenced to enforce any of the
provisions of this Agreement, including without limitation, an arbitration
proceeding, the prevailing party shall, in addition to other remedies, be
entitled to recover reasonable attorneys' fees and costs of suit from the other
party.
21. NONDISCRIMINATION. NRC recognizes that as a government contractor,
Kaiser is subject to various federal laws, executive orders and regulations
regarding equal opportunity and affirmative action which may also be applicable
to subcontractors. NRC, therefore, agrees that any and all applicable equal
opportunity and affirmative action clauses shall be incorporated herein as
required by federal laws, executive orders, and regulations which include the
following:
A. The nondiscrimination and affirmative action clauses contained in:
Executive Order 11246, as amended, relative to equal opportunity for all
persons without regard to race, color, religion, sex or national origin; the
Vocational Rehabilitation Act of 1973, as amended, relative to the employment
of qualified handicapped individuals without discrimination based upon their
physical or mental handicaps; the Vietnam Era Veterans Readjustment Assistance
Act of 1974, as amended relative to the employment of disabled veterans and
veterans of the Vietnam Era; and the implementing rules and regulations
prescribed by the Secretary of Labor in Title 41, Part 60 of the Code of
Federal Regulations.
B. The utilization of small and minority business concerns clauses
contained in: the Small Business Act, as amended; Executive Order 11625; and
the Federal Acquisition Regulation (FAR) at 48 CFR Chapter 1, Part 19,
Subchapter D, and Part 52, Subchapter H, relative to the utilization of
minority business enterprises, small business concerns and small business
concerns owned and controlled by socially and economically disadvantaged
individuals, in the performance of contracts awarded by federal agencies.
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22. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
(b) The waiver by one party of the performance of a covenant, condition
or promise herein shall not invalidate this Agreement nor shall it be
considered a waiver by such party of any other covenant, condition or promise
herein, nor shall any such waiver be construed as a future waiver of the
performance of any other like act, covenant, condition or promise.
(c) Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law;
provided, however, that in the event that any provision of this Agreement shall
be invalid or prohibited under such applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
(d) The headings of the several paragraphs of this Agreement are inserted
solely for the convenience of reference and are not a part of this Agreement
and are not intended to govern, limit or aid in the construction of any of the
terms or provisions of this Agreement.
(e) This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The parties hereto
agree that a facsimile copy of the signature of an authorized representative of
one or more of the parties hereto shall have the same legal effect as the
original signature of such representative.
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IN WITNESS WHEREOF, the parties, by and through their authorized
representatives, have executed this Agreement on the dates indicated below.
NATIONAL RESEARCH CORPORATION ("NRC")
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
---------------------------------
Title: CEO
---------------------------------
Date: 7-15-94
---------------------------------
THE PERMANENTE MEDICAL GROUP, INC. ("TPMG")
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx, MD
---------------------------------
Title: Associate Executive Director
---------------------------------
Date: 8/15/94
---------------------------------
XXXXXX FOUNDATION HEALTH PLAN, INC. ("KPHP")
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------------
Title: V.P. Associate Regional Manager
---------------------------------
Date: 8/11/94
---------------------------------
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ATTACHMENT A
Task Specification for Member/Patient
Survey Project
_____________________________________
Kaiser will provide to NRC certain member and patient level data, and NRC,
by use of this data, will perform periodic surveys of Xxxxxx'x members and
patients regarding satisfaction with the services such members and patients
have received from KPHP. Based upon survey results, NRC will provide period
reports to Kaiser as more specifically described herein. The Survey Project
will cover data for the period of * through *, unless extended pursuant to
Paragraph 3 of the agreement.
Kaiser will provide NRC with the data relating to the patient or member to
whom NRC shall transmit a survey form. Data pertaining to patients and members
shall include information as reasonably required by NRC to perform this Task
Specification, such information to be provided by Kaiser to NRC in a mutually
acceptable format. Kaiser agrees to exercise its best efforts to keep such
data up-to-date and accurate. Data regarding certain patients may be withheld
by Kaiser in the event that Kaiser determines that confidentiality
considerations so warrant.
Kaiser and NRC will cooperate in the design of a questionnaire to be used as
the survey instrument. Kaiser shall approve the survey in writing prior to
NRC's distribution of the instrument to patients or members. The survey
instrument may undergo periodic revision in response to Xxxxxx'x needs for new
or different survey data.
NRC shall collect * completed patient surveys and * member surveys during
each of the periods of * through *, and * through *, as more specifically
described on the following page of this Attachment. These survey return
numbers are based on the * response rates of *% for the patient survey and *%
for the member survey.
NRC shall monitor a sample selection and avoid transmitting a survey to a
patient more than once during a * period. No member shall be surveyed if he or
she has made a visit to a Kaiser physician within the past * (*) months. (If a
member has visited a physician within the prior *, such member shall be
regarded as a "patient" for survey purposes). Kaiser shall provide NRC with
necessary data to establish the date of a member's last office visit.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
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* NRC will restrict its phone contacts to the hours of 10:00 a.m.-9:00
p.m. Monday through Friday, 10:00 a.m.-5:00 p.m. Saturday, and 12:00 p.m.-4:00
p.m. Sunday. Phone contacts shall be conducted in professional manner.
NRC will issue written reports using the survey returns on the following
schedule:
* - * facility reports and * Medical Center reports;
* - * facility reports, * Medical Center reports, and reports for
individual physicians and nurse practitioners;
* - * facility reports, * Medical Center reports, and reports for the
departments of each facility;
* - * facility reports, * Medical Center reports, and reports for the
departments of each facility;
* - * facility reports, * Medical Center reports, and reports for the
departments of each facility;
NRC shall hold in storage for a maximum of * (*) months the completed survey
forms received from members or patients. Thereafter, unless Kaiser wishes to
take possession of such surveys, such documents will be destroyed, provided,
however, that the survey results shall be stored by NRC on magnetic media.
At the beginning of each month, NRC shall deliver to Kaiser the original
copies of completed surveys received in the prior month which contain written
comments from the respondents. NRC shall make and retain copies of these
original surveys and hold them in storage for a maximum of * (*).
On a weekly basis, NRC will provide a written summary report to Kaiser
detailing the number of surveys mailed out and the number received by NRC.
This report shall be in a form specified by Kaiser as necessary to track the
response rate for mailings which occur at different times throughout the year,
and to track the response rate resulting from different stages of NRC's survey
process.
At the beginning of each month, NRC shall deliver to Kaiser an updated
electronic data set containing all survey responses received from members and
patients as of that date.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
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Such data sets will include for each respondent all survey items, necessary
weighing factors, Kaiser-supplied data (e.g., date of visit, provider code),
and survey tracking data maintained by NRC (e.g., date of survey mailing, last
contact, date of survey return to NRC). Such data sets shall be delivered in
the format and on the storage medium specified by Kaiser. NRC shall deliver
such documentation as necessary to access the delivered data sets, and shall
update the documentation whenever any changes are made to the data set contents
or format.
Due to the fact that a significant proportion of Xxxxxx'x members and
patients are non-English speaking (and are not literate in the English
language), NRC will take reasonable steps to facilitate response by such
individuals to surveys. On the survey instrument NRC will provide an
explanation and 800 numbers to be staffed during extended business hours by
Spanish-speaking and Chinese-speaking individuals. Kaiser shall provide NRC
with the survey instrument translated from English to Spanish and English to
Chinese. Upon request, a Spanish-speaking Kaiser pateitn or member will be
provided with a Spanish language survey form. Upon request, a Chinese-speaking
Kaiser patient or member will be administered the survey over the phone by a
Chinese-speaking NRC staff person. If required, NRC will explore with Kaiser
the need to provide assistance to patients or members in other languages. NRC
shall include the requested data on survey activity and response rates for
these special language groups in its weekly survey activity and response
reports.
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ATTACHMENT B
Task Specification for Competitor Benchmark Study
_________________________________
In conjunction with Xxxxxx'x Member/Patient Survey Project, NRC will conduct
a Competitor Benchmark Study of individuals enrolled in the following health
plans;
(a) Fee for service;
(b) Non-Kaiser managed care plans; and
(c) Kaiser members
Such Study shall be performed in accordance with this Task Specification.
The Study's objective is to provide Kaiser with comparative health plan
satisfaction scores. The sample group from which data will be collected will
be identified through the use of * . The responses will consist of *
individuals enrolled in a fee-for-service health care plan, * individuals
enrolled in a managed care plan other than Kaiser, and * individuals who are
Kaiser members. Due to the size of the sample, it will be impractical to
report study results by specific health care providers other than Kaiser. All
market research conducted in conjunction with this Study will be performed in
accordance with generally accepted standards for sound market research.
_______________
* Indicates that material has been omitted and confidential treatment
has been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 406.
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ATTACHMENT C
Listening System Software (TM) Trial
____________________________________
In conjunction with this Study, NRC will install at Xxxxxx'x Northern
California Regional Office, NRC's Listening System Software (TM) (the
"Software"). The objective of such installation is to allow Kaiser, on a trial
basis for the period from the date of installation to *, to evaluate the
benefits and merits of the Software for licensing from NRC and installation at
each of Xxxxxx'x Northern California Region Medical Centers.
NRC shall install one copy of the Software on a Kaiser personal computer at
an office of Xxxxxx'x choice, train two (2) Kaiser personnel in the operation
of the Software, and support the Software for the duration of the trial review.
NRC will not charge Kaiser for the use, installation or support of the Software
during the trial period. Software support shall be provided Monday through
Friday (excluding holidays) from 9:00 a.m. to 4:00 p.m. Central Time via a
telephone user support line. NRC shall provide one (1) day of installation and
training services at Xxxxxx'x site. NRC will furnish, free of charge, one (1)
Systems Operations Manual for training of Xxxxxx'x personnel and for such
during the trial period.
NRC has, and shall retain, title to the Software during the trial period and
NRC warrants that it has the right to grant the license to the Software.
Kaiser shall not make copies of the Software for any purpose. Kaiser may not
alter or modify the Software or merge the Software into other programs. Kaiser
acknowledges that it has no proprietary interest in or right to use of the
Software except in accordance with the terms described herein.
Kaiser recognizes that the Software and other materials supplied by NRC to
Kaiser are subject to the proprietary rights of NRC. Kaiser agrees that it
will hold the Software in confidence, and that it shall not disclose to any
third party the Software and documentation and that the Software and
documentation are provided for Xxxxxx'x exclusive use. Kaiser further
understands that operator manuals, training aids and other written materials
are subject to copyright protection.
If at the end of the trial period, Kaiser desires to enter into a license
for the use of the Software, Kaiser and NRC shall in good faith negotiate the
terms of a license agreement. If Kaiser does not desire to license the
Software, it shall return the Software and any documentation to NRC without
further obligation.
_______________
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed separately
with the SEC pursuant to Rule 406.
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NRC warrants that it has the right to grant the license granted to Kaiser
under this Agreement, free and clear of any liens and encumbrances, and that
the Software will not infringe upon or violate any patent, copyright or trade
secret right of any third party. NRC shall indemnify, defend, save and hold
Kaiser harmless from any and all liabilities, including attorneys' fees and
costs, arising out of claims that the Software infringes the patent, trademark,
copyright, trade secret or other proprietary or intellectual property rights of
others. Kaiser shall promptly notify NRC in writing if Kaiser becomes subject
to any such claims. Kaiser shall, upon NRC's request and at NRC's expense and
to the extent Xxxxxx'x interests are not adverse to NRC, provide reasonable
assistance to NRC in the defense of such action. NRC shall have the sole
control of the defense and settlement of such claims (except that any
settlement which will adversely affect the financial viability of NRC must be
approved by Kaiser) and NRC shall be entitled to replace or modify the Software
so that it becomes noninfringing provided that the performance of the Software
is not materially impaired thereby.
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