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EXHIBIT 10.15
MASTER LICENSE AND SERVICES AGREEMENT
This Agreement is catered into as of this 24th day of June, 1998, by and
between Employers Mutual, Inc., a Florida corporation with its principal place
of business located at 0000 Xxx Xxxx xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX
00000 (hereinafter referred to as "EMI"), and MPOWER Solutions Inc., a Delaware
corporation with its principal place of Business located at 0000 Xxxxxx Xxxxx,
X. X., Xxxxx 000, Xxxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"MPOWER"). EMI together with its parent corporation, XxXxxxxx Corporation, a
Florida corporation with its principal place of business located at 000 Xxxxxxx
Xxxxxxx, Xxxxxx, Xxxxxxx 00000 ("XxXxxxxx") and together with XxXxxxxx'x parent
corporation, FPIC Insurance Group, Inc., a Florida corporation with its
principal place of business located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000 ("FPIC"), shall jointly and severally be hereinafter referred to
as "Customer".
WHEREAS, MPOWER is in the business of providing automated managed health
care information services and licensing software to businesses providing managed
health care and insurance services, and desires to provide such services, and
license such software, to EMI, subject to the terms hereof; and
WHEREAS, Customer is in the business of providing managed heath care and
insurance services to its customers and desires to use the software licensed By,
and the services of MPOWER, subject to rile terms hereof, and
WHEREAS, EMI has previously engaged MPOWER to provide Remote Processing
Services as set forth in the Processing and Services Agreement dated as of
January 1, 1996 and any amendments hereto ("Prior Agreement"), and whereas EMI
wishes to enter into this Agreement to license directly the MPOWER software.
NOW, THEREFORE, in consideration of the mutual promises made, the terms
and conditions hereunder described and or her valuable consideration, the
parties agree as follows:
1. DEFINITIONS
1.1 As used in this Agreement, the following terms shall have the
meanings indicated unless the context clearly requires otherwise;
(a) "Core Services" shall mean those services provided by MPOWER (as
described and set forth in Exhibit 1) in consideration of Customer's payment of
the License Fees.
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(b) A "Critical Failure" shall mean a verifiable Nonconformity in
the Shelf Version of the MPOWER Software (or verifiable failure of the MPOWER
System hardware if the problem arises with respect to Remote Processing) which
has a material impact on Customer's mission critical system related functions. A
Critical Failure may include, but is not limited to, the inability of Customer
to generate checks, complete failure of availability of the on-line system,
inability to perform on-line adjudication of any types of claims, or incorrect
adjudication of any types of claims.
(c) "Customer Processing" shall mean the use of the MPOWER Software
on Customer equipment, as set forth herein.
(d) "Derivative Work" shall mean any computer program, application,
interface or related documentation of any kind that is based, to any extent, on
MPOWER Software, or any component part thereof.
(e) "Documentation" shall mean collectively, the System
Documentation, the Functional Documentation and the User Documentation.
(f) "Effective Date" shall mean the date first set forth above.
(g) "Expenses" shall mean any reasonable out of pocket expenses,
including without limitation, travel and travel-related expenses, incurred by
MPOWER in connection with the performance of this Agreement.
(h) "Fees" shall mean the fees for MPOWER. Services as described and
set forth in Exhibit 2 of this Agreement attached hereto.
(i) "General System Enhancements" shall mean enhancements, revisions
or updates to the MPOWER Software that are made available generally to licensees
of the MPOWER Software as part of the Maintenance Fee (MF), as and when such
enhancements, revisions or updates are made available generally, and shall not
include any separate products where MPOWER charges a separate license fee to its
licensees.
(j) "Implementation" shall mean the conversion and installation of
Customer's managed health care and/or insurance processing from remote
processing to Customer Processing using the MPOWER(TM) system as set forth in
this agreement.
(k) "Implementation Date" shall mean the actual date that the first
Member transaction is processed, by Customer on Customer's equipment.
"Incremental Support" shall mean Supplemental Services.
(m) "License" shall mean the license granted by MPOWER to Customer
for the MPOWER Software, to the extent set forth herein.
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(n) "License Fees" shall include the Initial License Fee(s) ("ILF"),
the Maintenance Fee ("MF"), and any applicable License Extension Fee(s), as
hereinafter defined or described in Exhibit 2 herein.
(o) "Maintenance Services" shall include the "Maintenance Support
Services".
(p) "Maintenance Support Services" shall mean the post-production
services provided by MPOWER as part of the Core Services that do not provide for
upgrades or general enhancements to the MPOWER Software, which are provided
through the Maintenance Fee.
(q) "Member" shall mean an individual who is as of a certain
effective date eligible for certain benefits provided by or through Customer or
a Related Party, which individual becomes eligible either (a) directly as the
subscriber to a Customer or a Related Party sponsored and administered insurance
or benefit program, Co) as an eligible employee to an employer sponsored benefit
plan administered in whole or in part by Customer or a Related Party, or (c) as
a beneficiary of a government sponsored benefit plan administered in whole or in
part by Customer or a Related Party, or (d) indirectly as a dependent of that
subscriber, employee or beneficiary. For example, in a family of four (4)
individuals, where the employee is the primary participant individual, the
employee, the spouse and the two (2) dependent children are each a Member for a
total of four (4) Members.
(r) "Member Month" shall mean, respectively, as of the first of each
applicable month, the number of active eligible Members as enrolled and entered
by Customer, as of a given effective date, onto the MPOWER System (for Remote
Processing) or processed using the MPOWER Software (for Customer Processing,
adjusted for actual retroactive Customer Member enrollment or disenrollment
occurring in the prior twelve (12) months.
(s) "MPOWER Services" shall mean services furnished by MPOWER
according to the terms of this Agreement and attached Schedules and other
services described in any Work Order.
(t) "MPOWER Site" shall mean the site of the MPOWER System,
currently located at 0000 Xxxxxx Xxxxx, X. X., Xxxxxxxxxxx, Xxx Xxxxxx, 00000.
(u) "MPOWER Software" shall mean the copies of the MPOWER
Client-Server Software licensed by Customer under this Agreement. MPOWER
Software is marketed under the trade name "MPOWER(TM)"
(v) "MPOWER Client-Server Software" shall mean the
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MPOWER(TM) software owned by MPOWER, migrated to and operating on the IBM
RS/6000 computer (or operating on other hardware to which MPOWER(TM) has been
migrated and on which the MPOWER(TM) software is generally marketed under the
name of MPOWER(TM), and any updates, revisions, enhancements, or additions
thereto supplied by MPOWER, (including but not limited to those updates,
revisions, enhancements, or additions supplied to Customer pursuant to Work
Orders under this Agreement) or made by Customer and incorporated by MPOWER, as
described in Section 2.7 of this Agreement, and shall not include any separate
products for which MPOWER charges a separate licence fee for such products. The
subsystems included with the MPOWER Client-Server Software are set forth in
Exhibit 2.
(w) "MPOWER Standard Interface Specifications" shall mean the MPOWER
written specifications for the file size, format, blocking factors, field
content and frequency of batch transmission for interfacing software programs
for data exported from or imported into the MPOWER(TM) software-maintained
databases.
(y) "Nonconformity" shall mean a failure of a specific Release of
the MPOWER Software to materially conform to the User Documentation and
Functional Documentation of such Release.
(z) "Ongoing Basic Support" shall be the support provided by MPOWER
in consideration of the License Fees and the Maintenance Fee and limited by the
conditions of Core Services as defined in Exhibit 1 and which includes the
services described in Exhibit 1, attached hereto.
(aa) "Related Party" shall mean an entity as to which Customer
directly owns a greater than fifty percent (50%) equity interest in the assets
of such entity, but excludes any entity as to which another co-owner, partner or
joint venture participant or affiliate is a competitor of MPOWER as set forth in
Exhibit 5.
(bb) A "Release" shall mean a new version or new release of the
MPOWER Software containing General System Enhancement that is made available to
MPOWER's customers generally.
(cc) A "Release Date" is the date that a Release is made available
to MPOWER's customers generally.
(dd) "Remote Processing Fees" shall mean the Fees for Remote
Processing set forth in Exhibit 2
(ee) "Remote Processing Services" shall mean the MPOWER Services
which allows Customer's use of the MPOWER Software by remote access to the
MPOWER System at the MPOWER Site, if Customer and MPOWER agree to the terms for
Remote Processing Services set forth in Exhibit 2.
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(ff) "Shelf Version" shall mean the Releases of the MPOWER Software
which are accepted by Customer pursuant to Section 4 herein.
(gg) "Source Code Buyout Option" shall mean the option of Customer
to acquire the right to make modifications to the source code of the MPOWER
Software and to no longer pay the Maintenance Services Fees, in accordance with
the Source Code Buyout Option Fees stated in Exhibit 2 hereto.
(hh) "Supplemental Service(s)" shall mean any support or services
required by Customer and agreed to be provided by MPOWER in addition to that
provided as part of the License, as fully specified in each Work Order, which
Supplemental Services may include, but not be limited to, conversion support,
modification and enhancements, and system set-ups.
(ii) "System Documentation" shall mean the MPOWER system
documentation provided to Customer pursuant to the terms of this Agreement. An
outline of the current System Documentation is set forth in Exhibit 3 attached
hereto.
(jj) "User Documentation" shall mean the MPOWER user documentation
provided to Customer pursuant to the terms of this Agreement. An outline of the
current User Documentation is set forth in Exhibit 3 attached hereto.
(kk) "Work Order" shall mean a document that is separately executed
by both parties that authorizes MPOWER to perform Supplemental Services or other
services for Customer and obligates Customer to pay for such Supplemental
Services or other services under the terms of that separate document, and which
document is incorporated and made part of this Agreement.
(ll) "Workaround" shall mean a change in the procedures followed or
data supplied to avoid a Nonconformity without materially impairing performance
of the MPOWER Software.
2. MPOWER SOFTWARE; LICENSE; CORE SERVICES
2.1 MPOWER Software License.
MPOWER grants to EMI on behalf of Customer a nonexclusive,
non-transferable (except as specified herein) license (the "License") to use one
(1) production copy of the MPOWER Software on one (1) IBM R.S/6000 computer at a
single site for Members while this Agreement is in effect, which MPOWER Software
includes the Documentation, subject to the terms and conditions set forth
herein.
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(a) MPOWER shall prepare and provide Customer either one (1) paper-based
copy or one (1) electronic copy of the User Documentation and Functional
Documentation for the MPOWER Software and update same as required due to
enhancements, upgrades, error correction or other changes made by MPOWER to the
MPOWER Software.
(b) Until such time as EMI exercises the Source Code Buyout Option,
EMI's license extends only to the right to use the object code of the MPOWER.
Software and nor to make modifications to the source code of the MPOWER
Software, even though the source code to the MPOWER Software may be resident on
a Customer computer for purposes of compiling, ease in debugging, or for some
other reason of operational ease, integrity or efficiency.
2.2 Payment.
In consideration of the License, Customer shall timely pay the ILF, the MF, and
the License Extension Fees in accordance with Exhibit 2. The ILF shall extend to
Members as of the date hereof and shall also include Members added to Customer's
business as a result of internal growth of such business. EMI may acquire a
license extension ("License Extension") to cover Members added as a result of
merger or acquisition, either of Customer, or of another corporation or of a
block of business by Customer from another corporation, by payment of the
License Extension Fee in accordance with Exhibit 2.
2.3 Scope of Use.
(a) Customer, shall use the MPOWER Software and Documentation solely for
its own use as a provider or administrator of managed health care and/or other
insurance services to its Members, solely as expressly set forth herein,
pursuant to the terms herein and nor for the behest of any other entity, and
further subject to the Related Party restrictions in the License granted.
(b) Customer shall have the right to provide the use of certain limited
functions and features of the MPOWER Software, as described in the
Documentation, to its clients, including Members, providers of health care
services to Members, the employers of Members, which employers have signed a
contract with Customer to pay for health care services or the administration of
benefit plans for their employees, or government agencies that have signed a
contract With Customer for Members for which Customer provides administration
services, and to providers of health care services, subject to the
confidentiality restrictions set forth in Section 12 of this Agreement.
(c) Customer shall not copy the MPOWER Software or permit same to be
copied, except for production copies for use within the restrictions of the
License granted herein, and for a reasonable number of backup and test copies:
(i.) for the specific data center(s) where the MPOWER Software will be installed
where Customer is performing Customer Processing, and (ii.) for testing and
modification of the MPOWER Software.
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Customer shall promptly notify MPOWER in writing as to the number of production
and test copies and location of said copies of the MPOWER Software which it
intends to make in each instance.
(d) In addition, Customer shall be permitted to make a reasonable number
of copies of the User Documentation solely for Customer's internal use and for
distribution to Related Parties and non-Related Parties pursuant to Section
12.2, not to exceed one (1) copy per workstation, and only if the original
copyright and other proprietary rights notices are preserved.
(e) In addition, Customer shall be permitted to make a reasonable number
of copies of the Functional Documentation for Customer's internal use and {or
distribution to Related Parties pursuant to Section 12.2 solely for use by
business or technical analysts with a need to know and only if the original
copyright and other proprietary rights notices are preserved.
(f) Furthermore, Customer shall be permitted to make a very limited
number of copies, but not more than five (5) of the System Documentation solely
for Customer's internal use by senior business or technical analysts with a need
to know and only if the original copyright and other proprietary rights notices
are preserved and if Customer maintains such System Documentation under the
tightest security and destroys copies that are no longer needed.
(g) Notwithstanding anything herein to the contrary, in no event shall
Customer allow any third party to copy the System Documentation.
(h) Distribution of the Functional Documentation and of the System
Documentation is to be tightly controlled, subject to a need to know. No
identifying marks, copyright or other proprietary right notices may be deleted
from any copies of the MPOWER Documentation and all backup copies of the MPOWER
Software created shall include all such notices.
(i) MPOWER Software used for Customer Processing and testing of the
MPOWER Software or of Customer data to be used with the MPOWER Software may be
temporarily transferred to backup equipment owned by Customer or by a third
party provider of disaster recovery services and used thereon only for so long
as the Customer site is inoperative or Customer is testing the backup recovery
process itself. The use of such third party provider of disaster recovery
services shall not require the consent of MPOWER provided such provider agrees
to be bound by the confidentiality restrictions set forth herein, and is not a
competitor of MPOWER as set forth in Exhibit 5. Simultaneous use of more than
the authorized number of copies of the MPOWER Software is expressly prohibited.
(j) Customer shall not modify the MPOWER Software (except as set forth
in Section 2.7) or the Documentation, nor translate, or adapt the MPOWER
Software or the
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Documentation in any way or use it to create a Derivative Work or permit the
foregoing. Except as set forth in Section 8.2 with respect to the Shelf Version,
MPOWER shall nor be responsible for the functioning of updates, revisions,
enhancements, additions or conversions or otherwise maintaining the MPOWER
Software if the MPOWER Software is modified by Customer or if Customer installs
or attempts to install software, other than MPOWER Software, which interfaces
with the MPOWER Software in a manner which is inconsistent with MPOWER standard
interface specifications, or writes to any data files maintained by the MPOWER
Software. Customer shall be solely responsible for the results of such
modifications or interfaces, including the integrity of data used or generated
by the MPOWER Software. In the event that Customer makes a permitted
modification or enhancement to the MPOWER Software, as set forth in Section 2.7
herein, and it is subsequently determined that such modification or enhancement
was the cause of a Nonconformity in the MPOWER Software, then MPOWER shall be
reimbursed at the Supplemental Service Fees rates set forth in Exhibit 2 for the
time spent in determining that such modification or enhancement was the cause of
the Nonconformity, and MPOWER agrees to provide Supplemental Services support as
specified on a Work Order to correct such Nonconformity. Notwithstanding the
above, MPOWER acknowledges that there are certain permitted interfaces to third
party software that MPOWER supports and that are provided as part of the MPOWER
Software or as permitted interfaces thereto, as outlined in the Documentation,
or in an applicable Work Order or contract addendum. If an error occurs to the
data as a result of Customer's use of these interfaces, then MPOWER will provide
support to those interfaces in the same way that it supports the MPOWER
Software.
2.4 General System Enhancements. In consideration of the ILF and MF,
MPOWER shall provide to Customer General System Enhancements, if and when such
General System Enhancements are made available to licensees of the MPOWER
Software generally, except as otherwise provided in Exhibit 2. Any General
System Enhancements supplied to Customer by MPOWER shall become part of, and
subject to, this Agreement and License. MPOWER shall only provide General System
Enhancements for the then most current Release of the MPOWER Software. In
addition, MPOWER agrees also to provide support for the one prior Release
immediately preceding the most current Release of the MPOWER Software and to
provide support for any other Releases for up to one (1) year from the Release
Date of such other Releases. During any applicable support period, support for
any such prior Release of the MPOWER Software that has been replaced or modified
by General System Enhancements or by a subsequent Release shall be limited to
correction of identified and reproducible defects in the Shelf Version of such
prior Release from the published specifications therefor. MPOWER shall not be
obligated to provide General System Enhancements for any Release other than the
most current Release. Any additional MPOWER Services provided in connection with
an older Release of the MPOWER Software shall be provided as Supplemental
Services.
2.5 Correction of Nonconformities. In consideration of the ELF and MF,
and subject to the terms of this Agreement, upon written notification by
Customer of a Nonconformity in the most current Release of the MPOWER Software
or in the one prior
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Release immediately preceding the most current Release of the MPOWER Software,
MPOWER will analyze the Nonconformity and notify Customer of its estimate of
when and how such Nonconformity will be corrected or any Workaround provided and
MPOWER. shall use commercially reasonable efforts to correct such Nonconformity
in accordance with the procedures and priorities established in Exhibit 1 under
Help Desk. Notwithstanding the prior sentence, MPOWER's sole obligation
hereunder shall be limited to correcting identified and reproducible
Nonconformities in the Shelf Version of the MPOWER Software in accordance with
Section 4 herein and the relevant portions of Exhibit 1 which deal with
Definitions, Support and Time Frame for Resolution of issues logged through the
MPOWER Help Desk.
2.6 Proprietary Rights and Confidentiality.
(a) MPOWER represents and Customer acknowledges that the MPOWER
Software, including the Documentation, is the sole and exclusive
property of MPOWER, including, but not limited to, all applicable
rights to patents, copyrights, trademarks and trade secrets
inherent therein and appurtenant thereto, and MPOWER retains
title to the MPOWER Software and any copies thereof. Customer is
not purchasing title to the MPOWER Software or copies thereof,
but rather is being granted a license to use the MPOWER Software
pursuant to the terms herein. Customer shall not sell, License,
transfer, or otherwise make available (except as expressly
provided herein) any portion of the MPOWER Software to others,
including but not limited to Related Parties and non-Related
Parties for which Customer is providing processing services
pursuant to the terms hereof, nor permit the foregoing, except
for disclosure of the MPOWER Software to Customer consultants and
auditors pursuant to the provisions of Section 12.2 herein, and
the disclosure of the User Documentation to Related Parties and
non-Related Parties, pursuant to the provisions of Sections 2.3
and 12.2 herein.
(b) MPOWER represents and Customer acknowledges that all
information, data, designs, the structural definitions of any
system setups, benefit plans, provider contracts, fee groups, ad
hoc reports, letter formats, sample letter, content, business
process workflow diagrams, and any other structural templates and
other similar information provided by, developed or reviewed by
or in conjunction with MPOWER, or used by MPOWER in assisting
Customer in the installation, implementation or on-going use of
the MPOWER Product, and methodologies related thereto
("Proprietary Information") are the exclusive property of MPOWER
or MPOWER's suppliers and that such Proprietary Information is
confidential, has tangible value and includes trade secret
information of MPOWER and/or MPOWER's suppliers. MPOWER
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and/or MPOWER's suppliers shall retain all rights to the
Proprietary Information, including all copyright fights therein,
except to the extent to which MPOWER grants rights to Customer to
use the Proprietary Information pursuant to this Agreement.
Customer may not create Derivative Works based upon the
Proprietary Information in whole or in part. All improvements,
enhancements and modifications to the Proprietary Information
shall be owned exclusively by MPOWER or MPOWER's suppliers.
Without MPOWER's prior written consent, Customer shall nor
decompile, disassemble or reverse engineer any Proprietary
Information.
(c) Notwithstanding the above, Customer and MPOWER acknowledge
that the structural definitions of any system setups, benefit
plans, provider contracts, fee groups, ad hoc reports, letter
formats, sample letter content, workflow diagrams of Customer
business processes, and any other structural templates, that have
been provided, developed, reviewed or verified in whole or in
part by or with the support of MPOWER, its employees or agents,
do not constitute Proprietary Information of Customer within the
meaning of this Section 2,6, but that the License to the MPOWER
Software granted in Section 2.1 includes the right to use under
license such Proprietary Information; provided, however, that
specific provider and benefit contract rates, the names,
demographic information, contractual relationships, and medical
information of any group, member, provider or other entity with a
contractual relationship with Customer shall be considered
Proprietary Information of Customer, unless such information is
available through public sources (that have not been released by
or through the agency of MPOWER) or through publicly available
filings with any insurance or health care regulatory agency or
with any industry accreditation or reporting body.
(d) Customer agrees to use at least commercially reasonable
methods to secure and protect the MPOWER Software and the
Documentation as MPOWER Confidential Information as defined
herein, in a manner consistent with the manner in which it
protects its own most sensitive confidential information.
(e) MPOWER agrees to use at least commercially reasonable methods
to secure and protect the Confidential Information of Customer as
defined herein, in a manner consistent with the manner in which
it protects its own most sensitive confidential information.
2.7 Modification by Customer. In the event that Customer exercises its
option for the Source Code Buyout Option, Customer shall have the right to
modify the MPOWER
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Software for Customer Processing without notifying MPOWER and without obtaining
MPOWER's consent provided that (i.) Customer's ownership of such modifications
shall be subject to MPOWER's proprietary rights in the MPOWER Software and to
the provisions of this Section, (ii.) MPOWER's warranties and support
obligations related to the MPOWER Software shall apply only to the Shelf
Version, and (iii.) Customer shall not market or distribute such modifications
(except Customer may distribute descriptions and/or documentation of such
modifications to Related Parties and non-Related Parties) which distribution or
marketing shall be deemed a violation of MPOWER's proprietary rights in the
MPOWER Software. If Customer desires MPOWER to continue to provide support
services, Customer shall offer all modifications made by Customer to MPOWER for
inclusion in the MPOWER Software, subject to the mutual agreement by the parties
as to the consideration, if any, to be paid to Customer in return for Customer
costs and efforts in development of such modification(s). MPOWER shall have the
right to distribute such modifications as General System Enhancements, and if
MPOWER does so, such modification shall be covered by the MPOWER warranty and
support obligations as set forth in this Agreement. Subject to the foregoing,
Customer agrees that all modifications accepted by MPOWER in writing shall be
owned by MPOWER. All right, tide and interest in such accepted modifications are
hereby irrevocably assigned by Customer to MPOWER. All such modifications shall
belong exclusively to MPOWER, with MPOWER having the right to obtain and to hold
in its own name copyright registrations, patents and such other intellectual
property protection as may be appropriate to the subject matter and any
extensions and renewals thereof. Customer agrees to give MPOWER reasonable
assistance, at MPOWER's expense, required to perfect MPOWER's rights set forth
herein.
2.8 Support for Modifications.
(a) Modifications Not Included in the MPOWER Software; Support
Costs. In the event (i.) MPOWER modifies or enhances the MPOWER Software at
Customer's request pursuant to Section 3.2, or Customer modifies the MPOWER
Software pursuant to Section 2.7; and (ii.) such modifications or enhancements
do not have general applicability for MPOWER's customers and are not offered as
General Systems Enhancements, in order to provide support for such modifications
and enhancements, MPOWER will need to agree, in writing, to provide support for
such modifications and enhancements, and Customer agrees that there may need to
be an increase in the MF and/or the Fees for Maintenance Support Services. In
the event that MPOWER agrees, in writing, to provide such support, and
reasonably believes that an increase in the MF or the Fees for Maintenance
Support Services is required due to Customer Specific modifications, the parties
shall meet and discuss the nature of the increase. In the event that MPOWER does
not agree to provide such support, or if the parties fall to agree upon the
amount of the increase to the MF or the Fees for Maintenance Support Services,
MPOWER shall have no obligation to support such modifications and enhancements.
(b) Modifications Included in the MPOWER Software. Modifications
made to the MPOWER Software either by Customer, pursuant to Section 2.7, or by
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MPOWER, pursuant to Section 3.2, which are included in the MPOWER Software as
General System Enhancements by MPOWER shall be supported by MPOWER as set forth
in Section 2.4.
2.9 Core Services. In consideration of the payment of the License Fees
by Customer, M. POWER shall, during the term of this Agreement, provide the Core
Services set forth in Exhibit 1, except as otherwise provided in Exhibit 2.
3. SUPPLEMENTAL SERVICES
3.1 Supplemental Services. Supplemental Services may include as
applicable (i.) conversion services to convert Customer data; (ii.) system setup
such as the establishment of benefit plans, pricing information, tracking
information, capitation rules, procedure and diagnosis code files and fund
accounting and billing rules; (iii.) services for modifying the MPOWER Software
for enhancements and modifications; (iv.) training support after initial
training; (v.) consulting services; and (vi.) project coordination and
management for the above Supplemental Services. All such Supplemental Services
shall be described in an applicable Work Order and shall be undertaken by MPOWER
only pursuant to a Work Order. For services requested by Customer which are
beyond the scope of the services generally contemplated hereunder, for special
circumstances, or if the geographic location in which any MPOWER services are to
be provided for Customer demands higher labor or resource costs, MPOWER will
provide Customer with written notice, and MPOWER reserves the right to propose a
new fee structure or different rates, which fee structure or rates will be
detailed in the appropriate Work Order.
3.2 Enhancements and Modifications Under Work Orders. Pursuant to this
Section 3.2 and the applicable Work Order, Customer may identify enhancements or
modifications which it desires to have MPOWER make to the MPOWER Software, such
as integration to other software systems, modifications for legal requirements,
and other functional enhancements. Customer shall be responsible for providing
to MPOWER a description of the changes which Customer requests to be made in the
MPOWER Software. MPOWER shall have the right to design any Customer requested
enhancements or modifications in a way which, in MPOWER's reasonable opinion,
will not adversely affect the MPOWER Services or the structure or performance of
the MPOWER Software or will have general applicability. In the event MPOWER
agrees to provide such enhancements or modifications to the MPOWER Software,
such enhancements or modifications shall be owned by MPOWER and licensed to
Customer as part of the MPOWER Software subject to Section 2. Resources utilized
by MPOWER in providing services pursuant to any such requests will be detailed
in applicable Work Orders.
3.3 Data Integrity. Customer acknowledges that, although MPOWER may, as
part of Supplemental Services, perform certain conversion tasks (for which
MPOWER shall be responsible), including development of files and programs for
the conversion of Customer data into formats for the MPOWER Software, the
quality and integrity of all Customer data
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provided to MPOWER, and the results obtained or resulting from poor or
inaccurate data are solely Customer's responsibility.
3.4 Access. In order for the Supplemental Services to be completed in a
timely and successful manner, Customer shall provide MPOWER with such access to
applicable information and key Customer personnel as MPOWER may reasonably
request from time to time during the period the Supplemental Services are being
performed. In connection with the Supplemental Services, MPOWER will be entitled
to submit various materials, including time schedules, business requirements,
specifications, and test results, for Customer's review, comment, sign-off, or
approval. Customer will respond to each such request as soon as reasonably
practicable, and, in any event, in a time frame consistent with the applicable
project plan, and shall not unreasonably withhold any sign-off or approval
requested by MPOWER.
4. ACCEPTANCE
For all deliverables, including the MPOWER Software and General System
Enhancements and Customer-specific enhancements and modifications provided
pursuant to an applicable Work Order, whether for MPOWER Processing or for
Customer Processing, Customer shall, within thirty (30) days of receipt of the
deliverable, or within such other time period as may be agreed to in writing by
the parties, review and, if applicable, test the deliverable and approve it or
notify MPOWER in writing of non-approval, documenting in reasonable detail any
and all material defects in the deliverable which prevent it from conforming to
the Documentation or specifications therefor, as applicable. Work Orders for
Customer enhancement requests will include specification of an acceptance text
period that is mutually agreed to by Customer and MPOWER and which shall be
reflective of the estimated size and complexity of the deliverable specified by
the Work Order. MPOWER shall, upon receipt of such notice, use its best efforts
to correct any such material failures and shall notify Customer of its
completion thereof. Customer shall, after receipt of said notice, review the
deliverable and report. Customer shall do so promptly using diligent efforts,
but in no event shall such process exceed fifteen (15) days. The above cycle
shall be repeated as is necessary. A deliverable shall be deemed accepted by
Customer if either:
(a) Customer notifies MPOWER in writing of its acceptance and the
acceptance date shall then be the date of such notice;
(b) Customer fails to notify MPOWER in writing within the applicable
time period of any material defect in the deliverable and the acceptance date
shall then be the last day of said period; or
(c) Customer places in productive use any portion of the deliverable
and the acceptance date shall then be the thirtieth day of such productive use.
Productive use for purposes of the foregoing shall not include the use by
Customer of the MPOWER Software in a parallel processing environment where
Customer is utilizing the MPOWER Software to
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process a limited number of Members during a reasonable period of time for the
purpose of testing the MPOWER Software. Furthermore, notwithstanding the above,
the acceptance date shall not be considered completed as long as any online
production processing is still being conducted by Customer on the MPOWER
mainframe because of MPOWER's inability to transfer all of Customer's business
processing from the mainframe platform to Customer's client-server platform.
Customer agrees that it will so test any modifications or enhancements
made by MPOWER for Customer under an applicable Work Order and made part of a
Release and all General System Enhancements. The version and release of the
MPOWER Software so accepted by Customer shall be deemed the current Shelf
Version. Customer and MPOWER shall maintain copies of each Shelf Version. The
obligation of MPOWER to maintain any enhancements or modifications made
specifically for Customer that are nor part of either General System
Enhancements or a Release shall be specified in the Work Order that authorizes
such enhancements or modifications or in a subsequent Work Order.
5. FEES AND CHARES
5.1 Fees and Charges. The Fees for the MPOWER License and Services are
described in Exhibit 2 attached hereto.
5.2 Timeliness of Payment. All Fees payable by Customer hereunder shall
be paid by Customer on a monthly basis. Any applicable Remote Processing Fees
shall be due and payable in advance at the beginning of each month. Any other
sum due MPOWER hereunder for which a time for payment is not otherwise specified
will be due and payable within twenty (20) days after the date of Customer's
receipt of an invoice therefor from MPOWER. If Customer fails to pay any amount
due within thirty (30) days from the due date, late charges of 1 1/2% per month
shall also become payable by Customer to MPOWER. In addition, failure of
Customer to fully pay any amount due within sixty (60) days after the due date
shall be deemed a material breach of this Agreement and shall be sufficient
cause for immediate termination hereof. If Customer fails to pay, when due, any
amount payable hereunder or fails to fully perform its obligations hereunder,
Customer agrees to pay, in addition to any amount past due, plus interest
accrued thereon, all reasonable expenses incurred by MPOWER in enforcing this
Agreement including but not limited to all expenses of any legal proceeding
related thereto and all reasonable attorneys' fees incurred in connection
therewith. No failure by MPOWER to request any such payment or to demand any
such performance shall be deemed a waiver by MPOWER of Customer's obligations
hereunder or a waiver of MPOWER's right to terminate this Agreement.
5.3 Fee Changes. Not Applicable.
5.4 Taxes. There will be added to any charges under this Agreement, and
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Customer will pay to MPOWER, amounts equal to any taxes, however designated or
levied, based upon such charges, or upon this Agreement or the services or
materials provided hereunder, or Customer's use thereof, including state and
local sales, use, privilege or excise taxes based on gross revenue, and any
taxes or amounts in lien thereof paid or payable by MPOWER in respect of the
foregoing, but excluding any franchise taxes, taxes based on the adjusted gross
income of MPOWER, and employee withholding, FICA., and other taxes relating to
MPOWER personnel performing services hereunder.
6. PROBLEM RESOLUTION
Subject to the limitations in support for prior Releases provided by
MPOWER as set forth in Section 3 hereof, in the event MPOWER receives notice
from Customer of a Critical Failure in the most current Release of the MPOWER
Software or in the one prior Release immediately preceding the most current
Release of the MPOWER Software, pursuant the notice provisions of Section 16.4,
MPOWER agrees to respond to such notice by assigning a qualified individual to
attempt to remedy the Critical Failure, and agrees to use commercially
reasonable efforts to remedy the Critical Failure in accordance with the
provisions of Section 8.2 herein commensurate with the severity of the problem
and the timeliness and quality of information regarding the problem received
from Customer in accordance with the Definition, Support and Time Frame for
Resolution paragraphs of the Help Desk section of Exhibit 1.
7. CUSTOMER RESPONSIBILITIES
7.1 Customer Responsibilities. Customer acknowledges that MPOWER
Software reflects certain interdependent relationships, such as exist among the
data variables, logic rules and system functions of the MPOWER Software.
Customer further acknowledges that it is required and has a responsibility to
understand such data variables, logic rules and system functions, and their
interdependent relationships, and to define for its own purposes such data
variables, logic rules and system functions to the MPOWER Software in such a way
that the MPOWER Software will provide the functionality desired by Customer.
Customer acknowledges that it has or will hire and will maintain on its staff
personnel who are able to understand and define such data variables, logic
rules, system functions and interdependent relationships. Customer further
acknowledges that, even though MPOWER may assist Customer personnel in
performing these tasks, the responsibility for the effective definition and
maintenance of these data variables, logic rules and system functions resides
with Customer and not with MPOWER, unless Customer specifically requests MPOWER
to perform these tasks at the Supplemental Services Fees. Notwithstanding the
foregoing, nothing herein shall relieve MPOWER of responsibility for the
assistance that it may provide to Customer hereunder.
7.2 Testing. Customer acknowledges that it will undertake testing of the
MPOWER Software and of the basic functionality and interdependency of its
customer-
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defined data variables, logic rules and system functions as set forth in Section
4 herein, prior :o commencing use of the MPOWER Software for its business.
7.3 Customer Data. Except as may be provided under an applicable Work
Order, Customer shall be responsible for inputting and ensuring the accuracy,
validity and completeness of all data variables, logic rules, system functions
and Customer data, including but not limited to group, subscriber, Member,
provider, utilization, encounter, claims, capitation, fund accounting, billing,
collection, broker, benefits, product contract, provider contract, provider
fees, standard business measures, and other similar or related data. Customer
shall also be responsible for inputting and ensuring the accuracy, validity and
completeness of all user-defined report definitions, all report and batch
production job specifications and priority scheduling criteria. Customer shall
also be responsible for initiating, monitoring, operating, printing and ensuring
the accuracy, validity, and completeness of all print outputs and file
downloads, including but not limited to all reports, premium bills, checks,
etc., determining how many and on what print stock such outputs are to be
printed or into which files or programs on Customer controlled computers such
files are to be downloaded and manipulated, at Customer's own initiative,
responsibility and risk. Customer hereby acknowledges responsibility for
generally controlling all aspects related to the production, distribution and
control of such outputs. Customer further acknowledges that, notwithstanding the
responsibility of MPOWER to have used due care and diligence in the design and
documentation of the System, the accuracy of Customer's database within the
MPOWER. Software and the accuracy of the several outputs of the MPOWER Software,
including but not limited to, outputs that control the billing, receipt or
expenditure of moneys, will be dependent on the accuracy and use of the data
variables, logic rules, system functions and Customer data input into the MPOWER
Software by Customer and verified by Customer. Notwithstanding the foregoing,
nothing herein shall relieve/MPOWER of responsibility for the assistance that it
may provide to Customer hereunder.
7.4 Other Customer Obligations. In addition to its obligations
hereunder, Customer will on a timely basis:
(a) Establish appropriate priorities for Customer, on a regular
basis and no less frequently than every three months, that relate
to MPOWER Services and communicate the same to MPOWER. Customer
recognizes that changes in such priorities may result in
additional fees hereunder for additional staff, as Incremental
Support, or reordering of other priorities to provide MPOWER
Services within the current Fee structure;
(b) Cooperate with MPOWER by, among other things, making
available, as reasonably requested by MPOWER, management
decisions, information, approvals, and acceptances in order that
MPOWER may properly accomplish its obligations and
responsibilities hereunder;
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(c) Carefully inspect and review all MPOWER generated reports and
other output and notify MPOWER of any incorrect reports or
output;
(d) Personalize, maintain, reproduce and distribute (solely for
Customer's internal use) procedure manuals and documentation used
by Customer personnel in connection with the MPOWER Services and
Software;
(e) Train applicable Customer personnel in the proper use of
MPOWER Software;
(f) Pay all costs of acquisition, installation, use and
maintenance of equipment at Customer's site, as required for the
performance of MPOWER Software and Services;
(g) Properly maintain the Customer equipment at all Customer
sites;
(h) Properly maintain the operating environment, operating
system, network and database software as agreed to between the
parties;
(i) Such other responsibilities as set forth herein.
Customer agrees that to the extent its failure to meet its obligations set forth
in this Section affects the ability of MPOWER to perform MPOWER's obligations
under this Agreement, MPOWER shall be relieved of such obligations.
8. WARRANTIES
8.1 MPOWER warrants that it either owns the rights to the MPOWER
Software or has the right to grant the license to Customer herein, and that it
either owns or has licensed in the manner contemplated by this Agreement any
other software used in the provision of the MPOWER Services to Customer,
including but not limited to the enhancements or modifications provided by
MPOWER pursuant to an applicable Work Order. MPOWER warrants that the MPOWER.
Software, including without limitation each component or part thereof, does not
and will not infringe upon or violate any patent, copyright, trademark, trade
secret or other proprietary or contractual rights of any third party.
MPOWER shall, at its own expense indemnify, defend, settle and hold harmless
Customer and its officers and employees, from and against any and all claims,
damages, losses, liabilities, costs and expenses (including reasonable legal
fees) directly arising out of any such claim that the Shelf Version of the
MPOWER Software infringes upon or violates any United States patents,
copyrights, trademarks, trade secrets or other proprietary, contractual or
intellectual property rights of any third party; provided, however, Customer
must send MPOWER written notice of any claim relating to such infringement
promptly after Customer receives
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notice of the same and Customer fully cooperates, at MPOWER's expense, in the
defense of any such claim. Following such notice of a claim or of a threatened
or actual suit, MPOWER shall, upon written notice to Customer and at MPOWER's
expense, either: (a) procure for Customer the right to continue using such
MPOWER Software; (b) replace or modify same so that it becomes non-infringing;
or, (c) grant to Customer a refund for said MPOWER Software based upon a five
(5) year straight line depreciation if neither (a) nor (b) are reasonably
possible, in MPOWER's sole discretion. The foregoing states the entire liability
of MPOWER and the sole remedy of Customer with respect to any infringement or
claimed infringement by the MPOWER Software.
Notwithstanding the foregoing, MPOWER shall not be obligated to defend,
indemnify or hold Customer harmless from and against any claim, suit proceeding
or allegation (i.) asserted by a parent, subsidiary or affiliate of Customer or
any Related Party; (ii.) resulting from Customer's additions to, changes in, or
enhancements or modifications of the MPOWER Software; (iii.) resulting from
Customer's use of the MPOWER Software in combination With non-MPOWER Software,
unless MPOWER has agreed to provide support for the interface in which case,
MPOWER agrees to the warranties described in the applicable Work Order or
contract addendum; or (iv.) resulting from Customer's misuse of the MPOWER
Software.
8.2 MPOWER warrants that the Shelf Version of the MPOWER Software will
function as set forth in MPOWER's User Documentation, including all updates and
enhancements thereto. MPOWER covenants and warrants that all improvement and
enhancements of the MPOWER. Software provided by MPOWER will be compatible with,
and will not materially diminish the features or functions of, or the
specification of the Shelf Version of the MPOWER Software, and that the Shelf
Version of the MPOWER Software will be compatible with the equipment described
in the Documentation. MPOWER warrants that User Documentation shall reflect the
operation of the MPOWER Software, and MPOWER shall, at no additional cost to
Customer, correct any User Documentation that does not conform to this warranty.
If the Shelf Version of the MPOWER Software fails to meet the warranty described
in this Section 8.2 and Customer gives MPOWER notice thereof, MPOWER shall
correct the failure, provided that Customer gives MPOWER derailed information
regarding such failure.
8.3 MPOWER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EXCEPT
THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 8. MPOWER SPECIFICALLY
DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY OR FITNESS
FOR. A PARTICULAR PURPOSE OF THE MPOWER SERVICES OR THE MPOWER SYSTEM, OR THE
COMPLIANCE OF THE FOREGOING WITH ANY LAW, REGULATION OR ORDER.
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9. LIMITATION OF LIABILITY
NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS
UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR
PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
MPOWER SHALL NOT BE LIABLE FOR ANY CLAIM ARISING FROM TILE USE OF SOFTWARE OR
DATA WHICH HAS BEEN MODIFIED BY ANYONE OTHER THAN MPOWER, NOR FOR ANY CLAIM
ARISING FROM THE USE OF ANY SOFTWARE OR EQUIPMENT DEVELOPED OR MODIFIED BY
CUSTOMER OR WHICH HAS BEEN PROVIDED TO OR ACQUIRED BY CUSTOMER UNDER ANY LICENSE
OR OTHERWISE FROM ANY THIRD PARTY.
EXCEPT AS PROVIDED IN SECTION 8.1 WITH RESPECT TO MPOWER's EXPRESS
OBLIGATIONS TO INDEMNIFY CUSTOMER FOR LIABILITIES TO THIRD PARTIES, MPOWER's
SOLE AND TOTAL LIABILITY TO CUSTOMER RELATED TO THIS AGREEMENT WHETHER IN
CONTRACT OR TORT OR OTHERWISE SHALL BE LIMITED TO CUSTOMER'S ACTUAL DIRECT
DAMAGES NOT TO EXCEED THE SUM OF THE LICENSE FEES AND REMOTE PROCESSING FEES
PAID BY CUSTOMER TO MPOWER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS
IMMEDIATELY PRIOR TO THE BREACH OR CAUSE FOR WHICH THE DAMAGES ARE CLAIMED. THIS
LIMITATION APPLIES TO ALL CAUSES OF ACTIONS OR CLAIMS IN THE AGGREGATE INCLUDING
WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, MISREPRESENTATION AND OTHER TORTS. FURTHER, NO CAUSE OF ACTION WHICH
ACCRUED MORE THAN TWO (2) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH
CAUSE OF ACTION MAY BE ASSERTED AGAINST MPOWER, EXCEPT THAT IN NO EVENT SHALL
THE FOREGOING LIMITATION EXTEND ANY APPLICABLE STATUTORY LIMITATION PERIOD.
CUSTOMER AND MPOWER EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND
EXCLUSIONS CONTAINED HEREIN REPRESENT THE PARTIES' AGREEMENT AS TO THE
ALLOCATION OF RISK BETWEEN THE PARTIES IN CONNECTION WITH MPOWER's OBLIGATIONS
UNDER THIS AGREEMENT. THE PAYMENTS PAYABLE TO MPOWER IN CONNECTION HEREWITH
REFLECT THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES IN
THIS AGREEMENT.
MPOWER hereby is not assuming or otherwise responsible for, expressly or
implicitly, any obligation or liability of any kind whatsoever of Customer.
Customer shall and hereby does agree to indemnify and hold MPOWER harmless from
any and all claims, lawsuits, liabilities, expenses, costs, damages and fees
arising from or in connection with Customer's misuse of the MPOWER Services or
MPOWER Software in breach of its
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obligations hereunder. Customer, and not MPOWER, shall be responsible for
Customer's provision of services or products to any third party.
10. OTHER PROVISIONS
10.1 Inspection Rights. If MPOWER provides Remote Processing Services to
Customer, MPOWER will provide such auditors and inspectors as Customer may from
time to time designate in writing, with reasonable access to any data center
from which MPOWER is providing services hereunder for the limited purpose of
performing audits or examinations of Customer. MPOWER will provide to such
auditors and inspectors any routine assistance that they reasonably require,
rendered in connection with any such audit or inspection.
10.2 MPOWER Audits. Customer shall maintain adequate hooks and records
relating to its usage of the MPOWER Software and MPOWER Services and the Fees
due to MPOWER hereunder. MPOWER shall have the right, upon request, and in
connection with Customer's annual audit, to have Customer's auditors perform an
audit of Customer's books and records with respect to the MPOWER Software and
MPOWER Services and the Fees due to MPOWER hereunder. The cost of such audit
shall be borne by MPOWER solely to the extent that the auditors' services are
substantially different from or greater than those that the auditors would
ordinarily perform for Customer. Any over/under payment between the reported
usage of the MPOWER Software and the MPOWER Services and the Fees due to MPOWER
hereunder and the actual amount shall be paid by the appropriate party, or
applied as a credit by MPOWER, within thirty (30) days of notification of said
amount.
11. TERM OF AGREEMENT AND PROVISIONS FOR TERMINATION
11.1 Term of Agreement. The term of this Agreement shall commence on the
Effective Date and shall continue for seven (7) years unless otherwise
terminated pursuant to this Agreement. The agreement will be extended for an
additional 36 months upon the mutual written agreement of the parties. The
parties mutually agree to inform the other party, at least 120 days prior to the
Termination of this Agreement, as to whether or not they wish to negotiate a new
agreement which would be effective upon the Termination of this Agreement.
11.2 Termination for Cause. In the event that either party hereto
materially or repeatedly defaults in the performance of any of its duties or
obligations hereunder (except for a default in payments to MPOWER) and does not
substantially cure such default within one hundred twenty (120) days after being
given written notice specifying the default, or, with respect to those defaults
which cannot reasonably be cured within one hundred twenty (120) days, if the
defaulting party fails to proceed promptly after being given such notice to
commence curing the default and thereafter to proceed to cure the same, then the
party not in
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default may, by giving written notice thereof to the defaulting party, terminate
this Agreement as of a date specified in such notice of termination.
11.3 Termination for Nonpayment. In the event that Customer defaults in
the payment when due of any amount due to MPOWER hereunder, and does not cure
such default within sixty (60) days after the date of receipt the invoice, then
MPOWER may, by giving written notice thereof to Customer, terminate this
Agreement as of a date specified in such notice of termination.
11.4 Termination for Insolvency. In the event that either party hereto
becomes or is declared insolvent or bankrupt, is the subject of any proceedings
relating to its liquidation, insolvency or for the appointment of a receiver or
similar officer {or k, makes an assignment for the benefit of all or
substantially all of its creditors, or enters into an agreement for the
composition, extension, or readjustment of all or substantially all of its
obligations, then the other party hereto may, by giving written notice thereof
to such party, terminate this Agreement as of a date specified in such notice of
termination. Furthermore, in the event that MPOWER becomes or is declared
insolvent or bankrupt, is the subject of any proceedings relating to its
liquidation, insolvency or for the appointment of a receiver or similar officer
for it, makes an assignment for the benefit of all or substantially all of its
creditors, or enters into an agreement for the composition, extension, or
readjustment of all or substantially all of its obligations, then Customer may
exercise the Source Code Buyout for 50% of the fees shown in Exhibit 2,
provided, however, that Customer may only use the source code for the same
purposes granted by the object code License and may nor create Derivative Works
therefrom, not use the source code for relicense nor resale.
11.5 Termination Without Cause. In the event Customer ceases all
Customer Processing or Remote Processing Services, then MPOWER may terminate, at
ks option, this Agreement and License upon thirty (30) days written notice.
Customer may terminate this Agreement without cause with one hundred eighty
(180) days advance written notice to MPOWER subject to Customer's payment to
MPOWER of all outstanding fees incurred prior to the date of termination, all
applicable termination fees as provided in any Exhibit 2, and any applicable
early termination fees specified in Exhibit 2.
11.6 Termination Assistance. Upon the termination of this Agreement for
any reason, MPOWER will provide to Customer such termination assistance, at
MPOWER's Personnel Resources Rate plus Expenses, as may be reasonably requested
by Customer and scheduled by MPOWER. If this Agreement is terminated, then
Customer will pay MPOWER, on the first day of each month and as a condition to
MPOWER's obligation to provide such termination assistance to Customer during
that month, an amount equal to MPOWER's reasonable estimate of the total amount
payable to MPOWER for such termination assistance for that month.
11.7 Outstanding Amounts. Termination of this Agreement shall entitle
MPOWER to payment and Customer shall be obligated to pay for the provisions of
any and all
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MPOWER Services rendered by MPOWER under this Agreement prior to the date of
such termination, all outstanding fees incurred prior to the date of termination
and the lump sum of all remaining ILF payments due by Customer under Exhibit 2
(except as provided in Section 11.2 herein).
11.8 Customer Data. In the event that either party terminates this
Agreement, Customer retains ownership of all membership data and all other
Customer data in the MPOWER System. If MPOWER is providing Customer with Remote
Processing Services, MPOWER shall return same go Customer at the time of
termination in MPOWER's standard tape record format. Any support by MPOWER to
provide data in other than MPOWER's standard format shall be billed as
Termination Assistance per section 11.5 above.
11.9 MPOWER Software. Unless otherwise provided in this Agreement,
Customer agrees that upon termination of this Agreement, the License granted
hereunder shall also terminate and Customer shall cease using the MPOWER
Software and shall return to MPOWER or destroy, within thirty (30) days after
such termination, the original and all copies of such MPOWER Software and
Documentation. Except for termination resulting from the material breach on the
part of Customer, including without Limitation, breach of its Confidentiality
obligations or failure to timely make any payment hereunder, Customer shall be
permitted to continue to use the MPOWER Software pursuant to all the terms and
conditions set forth in this Agreement for up to a maximum of six (6) months
following such termination for the sole purpose of transitioning Members to an
alternate processing software, provided (i.) Customer remains obligated to pay
MF during such period; (ii.) MPOWER has no further obligations to provide Core
Services, new Releases, fixes to Nonconformities or Critical Failures, and
(iii.) the MPOWER Software is no longer warranted. If Customer destroys the
MPOWER Software, all copies thereof and Documentation, within thirty (30) days
of such destruction an officer of Customer shall certify to MPOWER in writing
that the MPOWER Software and all copies and Documentation thereof have been
destroyed. Due to the nature of the MPOWER Software and the need for its
protection as a trade secret and confidential proprietary information, time is
of the essence in its return or destruction, and in the event of Customer's
failure to do so within the time provided herein, Customer agrees that MPOWER
shall be entitled to obtain injunctive relief to require such return or
destruction and reasonable attorneys' fees and costs incurred in obtaining such
injunctive relief.
12. CONFIDENTIALITY
12.1 Confidential Information. "Confidential Information" shall mean
information such as customer lists, business plans, operation plans, client
information, application software programs and documentation licensed by third
parties to Customer or MPOWER, the MPOWER Software, the User Documentation,
Functional Documentation and the System Documentation, which are disclosed by
Customer or MPOWER to the other party, its employees, agents, contractors,
assignees or successors in the conduct of business
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under this Agreement. In addition, Confidential Information shall also include
any other materials relating to MPOWER's business or the business of Customer
which are designated in writing as confidential at the time of disclosure by
Customer or MPOWER, or is identified orally at the time of the disclosure as
confidential and confirmed in writing within one week of such disclosure, and
which are disclosed by Customer or MPOWER to the other party, its employees,
agents, contractors, assignees or successors in the conduct of business under
this Agreement. The following information shall not be deemed Confidential
Information, and a party and that party's employees shall have no obligation
with respect to any such information which:
(a) is or falls into the public domain through no wrongful act
of a party or that party's agents or employees; or
(b) is rightfully received from a third party without
restriction and without breach of this Agreement; or
(c) is approved for release by written authorization of an
officer of a party; or
(d) is disclosed pursuant to the requirements of a
governmental agency or operation of law; or
(e) is already in possession of a party or that party's
employees as evidenced by their records and is not the
subject of a separate non-disclosure or confidentiality
agreement with either of them.
12.2 Standard of Care. Each party hereby agrees that it and its
respective officers, employees, agents, contractors, assignees, and successors
shall (i.) keep all Confidential Information received from the other party
strictly confidential, (ii.) instruct their officers, employees, agents,
contractors, and permitted assignees and successors, who have access to such
Confidential Information, to use the same degree of care and discretion with
respect to the Confidential Information of the other party, or of any third
party utilized hereunder, that MPOWER and Customer each require with respect to
their own most confidential information, (iii.) use and disclose such
information solely for the purposes and in the manner set forth in this
Agreement, (iv.) not disclose any such information to any other person,
corporation, governmental agency or other entity without the express written
permission of the other party, except that Customer may (a) allow, with Customer
applying reasonable standards of system security, Customer's clients, providers,
Members, Members' employers and others with a need to use the MPOWER. Software
as users in the normal course of the Customer's business and may disclose to
such persons as much of the User Documentation as is necessary for their
effective use of the MPOWER Software in the normal course of the Customer's
business without obtaining a Non-Disclosure Agreement and (b) Customer may
disclose the MPOWER Software and Documentation to outside consultants or other
third parties having a need to know such Confidential Information for purposes
of this Agreement,
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and provided said consultants or third parties agree to hold the MPOWER Software
and Documentation in confidence, and have executed a Non-Disclosure Agreement in
the form annexed hereto as Exhibit 4, and (c) disclose the User Documentation to
Related Parties and Non-Related Parties in order for Customer to be able to
provide and for such parties to be able to effectively receive and utilize
Customer Processing, provided said Related and Non-Related Parties agree to hold
the User Documentation in confidence subject to the provisions herein, and have
executed a Non-Disclosure Agreement substantially in the form annexed hereto as
Exhibit 4. NOTWITHSTANDING THE FOREGOING, WITH RESPECT TO MPOWER SOURCE CODE AND
SYSTEM DOCUMENTATION, IN ADDITION TO ITS OBLIGATIONS SET FORTH HEREIN, CUSTOMER
SHALL USE NO LESS THAN THE SAME DEGREE OF CARE AND DISCRETION THAT CUSTOMER
REQUIRES WITH RESPECT TO ITS MOST VALUABLE TRADE SECRET INFORMATION.
Notwithstanding the foregoing, Customer may not disclose MPOWER's Confidential
Information to any of the parties identified by MPOWER in Exhibit 5, as such
Exhibit may be updated from time to time by MPOWER, or to their employees,
agents or consultants. Customer shall institute the necessary security policies
and procedures to meet its obligations hereunder. Notwithstanding the foregoing,
the mere viewing of data input screens or the review of output screens and
reports generated by released MPOWER Software by third parties, not in
competition with MPOWER, shall not be deemed a disclosure of MPOWER Confidential
Information.
Without limiting the foregoing, Customer shall use its reasonable
efforts to cooperate with MPOWER in identifying and preventing unauthorized use,
copying, or disclosure of the MPOWER Software and MPOWER Confidential
Information, or any portion thereof.
Customer shall indemnify and hold harmless MPOWER and its officers and
employees from and against any and all damages, losses, liabilities, costs and
expenses (including reasonable legal fees) arising in any way out of use not in
compliance with this Agreement or of any breach of the Confidentiality
obligations hereunder by Customer, or its subsidiaries and affiliates, or any
entity controlling, controlled by or under common control with Customer or any
Related Party. Customer's liability shall be limited to MPOWER's actual direct
damages not to exceed the sum of the license fees and remote processing fees
paid by Customer to MPOWER under this Agreement during the six (6) months
immediately prior to the breach or cause for which the damages are claimed.
MPOWER shall indemnify and hold harmless Customer and its officers and
employees from and against any and all damages, losses, liabilities, costs and
expenses (including reasonable legal fees) arising in any way out of use not in
compliance with this Agreement or of any breach of the Confidentiality
obligations hereunder by MPOWER, or its subsidiaries and affiliates, or any
entity controlling, controlled by or under common control with MPOWER, subject
to the limitations of liability outlined in Section 9.
13. DISPUTE RESOLUTION
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In the event of a dispute between the parties arising out of or relating
to this Agreement, then, upon the written request of either party, each of the
parties will appoint a designated representative to endeavor to resolve such
dispute. The designated representatives will negotiate in good faith to resolve
the dispute. Initially, disputes will be handled by the MPOWER Account
Representative and the Customer's designated liaison with MPOWER, or his/her
equivalent, and if they are unable to reach a resolution, the dispute will be
presented to the Chief Executive Officer of MPOWER and the Chief Executive
Officer of Customer for resolution. If the matter has not been resolved pursuant
to the aforesaid mediation procedure within sixty (60) days of the commencement
of such procedure (which period may be extended by mutual agreement), the
controversy shall be serried by arbitration in accordance with the American
Arbitration Association (the "Association) under the Commercial Arbitration
Rules of the Association there in effect, by a panel of three (3) arbitrators
knowledgeable in the computer area. The arbitration shall be governed by the
United States Arbitration Act, 9 U.S.C. Sec. 1-16, and judgment upon the award
by the arbitrator may be entered by any court having jurisdiction thereof. The
place of arbitration shall be in the jurisdiction in which the principal place
of business of the party not filing arbitration is located (i.e., Albuquerque,
New Mexico for MPOWER and Jacksonville, Florida for Customer). Each party shall
pay its own costs and expenses.
14. BACKUP AND DISASTER RECOVERY SERVICES AND AUDIT
14.1 Backup. In the event that MPOWER provides Customer with Remote
Processing Services, MPOWER will establish and maintain reasonable safeguards
against the destruction, loss or alteration of Customer data in the possession
of MPOWER. In the event that additional safeguards for Customer data are
reasonably requested by Customer, MPOWER will provide such additional safeguards
and Customer shall reimburse MPOWER for any additional costs incurred by MPOWER.
14.2 Disaster Recovery. In the event that MPOWER provides Customer with
Remote Processing Services, MPOWER shall maintain an agreement or arrangement
with a third party to provide MPOWER a disaster recovery sire with facilities
sufficient to enable MPOWER to provide a continuation of MPOWER Services in the
event the MPOWER System is unavailable for an extended period of time.
14.3 Notification. In the event that MPOWER provides Customer with
Remote Processing Services, MPOWER will provide customer with a current copy of
MPOWER's Backup and Disaster Recovery procedures and the results from Annual
Testing and EDI Audit.
15. RELATIONSHIP MANAGEMENT
15.1 Meetings. MPOWER and Customer agree to regularly discuss business
and relationship strategies affecting both parties. MPOWER and Customer further
agree to have
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regularly scheduled communications to summarize current activities, performance
results, error corrections and work efforts, as well as the future planned
activities.
15.2 Liaison. During the term of this Agreement, each party will provide
a liaison who (i) will have overall management responsibility for the
performance by the party hereunder, (ii) will have primary operational
responsibility, and (iii) will serve as the party's primary liaison with the
other party with respect to performance under this Agreement. Customer may have
primary liaison replaced for cause.
16. GENERAL
16.1 Independent Contractor. MPOWER, in performing its obligations under
this Agreement, is acting only as an independent contractor of Customer and the
rights and responsibilities of the parties shall be determined accordingly.
16.2 Force Majeure. Each party hereto shall be excused from performance
hereunder for any period and to the extent that it is prevented from performing
any services pursuant hereto, in whole or in part, as a result of delays caused
by the other party or an act of God, war, civil disturbance, court order, labor
dispute of the other party or any third party, or other cause beyond its
reasonable control and which it could not have prevented by reasonable
precautions, and such nonperformance shall not be a default hereunder or a
ground for termination hereof. In the event that either party is excused from
performance hereunder pursuant to this Section, then that party shall take all
reasonable actions to resume, or provide alternative performance of its
obligations hereunder as soon as feasible.
16.3 Governing Law: Jurisdiction and Venue. This Agreement shall be
construed and enforced according to the laws of the State of New Mexico without
reference to principles of conflicts of laws. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this
Agreement may be brought against any of the parties in the courts of the
jurisdiction in which the defendant's principal place of business is located
(i.e., the State and Federal courts of Albuquerque, New Mexico for MPOWER and
the State and Federal courts of Jacksonville, Florida for Customer), and each of
the parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the world.
16.4 Notices. All notices and other communications under this Agreement
shall be in writing and may be given by any of the following methods: (a)
personal delivery against signed receipt; (b) facsimile transmission; (c)
registered or certified mail, postage prepaid, return receipt requested; or (d)
over-night delivery service. Notices shall be sent to the appropriate party at
its address or facsimile number given below (or at such other address or
facsimile number for such party as shall be specified by notice given
hereunder):
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16.4.1. If to MPOWER, to:
MPOWER Solutions Inc.
0000 Xxxxx Xxxxx X. X., Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn.: Chief Executive Officer
Fax 000.000.0000
16.4.2. If to Customer, to:
Employers Mutual, Inc.
0000 Xxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn.: Chief Executive Officer
Fax 000.000.0000
All such notices and communications shall be deemed delivered upon (a) actual
receipt thereof by the addressee, (b) actual delivery thereof to the appropriate
address, or (c) in the case of a facsimile transmission, upon transmission
thereof by the sender and issuance by the transmitting machine of a confirmation
slip confirming that the number of pages constituting the notice have been
transmitted without error. In the case of notices sent by facsimile
transmission, the sender shall contemporaneously dispatch a copy of the notice
to the addressee at the address(es) provided for above by an overnight courier
service. However, such mailing shall in no way alter the time at which the
facsimile notice is deemed received.
16.5 Insurance. During the term of this Agreement, each party will
maintain insurance coverage, such coverage to bear the risks associated with the
performance of this Agreement as is reasonable, prudent and advisable under the
circumstances and will provide evidence of or otherwise demonstrate such
capability to the other party upon the other party's reasonable request from
time to time.
16.6 Assignment. Customer may assign this Agreement, upon notice to, but
without the consent of, MPOWER, to a third party which is not a direct
competitor, as set forth in Exhibit 5, of MPOWER's software business if all, or
substantially all, of Customer's business utilizing the MPOWER Software is
concurrently sold, assigned or transferred to such third party, and, further
provided, that such third party agrees in writing to adhere to the limitations
of the license granted herein, including that the license extends only to the
business transferred or to logical extensions thereof, and not to other business
conducted by the third party at the time of the assignment, transfer or sale, or
thereafter acquired, unless additional license fees are paid to MPOWER. This
Agreement and Customer's rights or obligations hereunder may not be otherwise
assigned or transferred by Customer to another entity whether by assignment,
merger, transfer of assets, sale of stock of Customer, operation of law or
otherwise without the prior written consent of MPOWER. MPOWER may assign this
Agreement upon notice to, but without the consent of, Customer, provided that
the assignee
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agrees to continue the obligations of the Agreement, otherwise, MPOWER may not
assign this Agreement to a third party without the prior written consent of
Customer. This Agreement shall inure to the benefit of and be binding upon the
parties, their permitted successors and their permitted assigns.
16.7 Termination of the Prior Agreement. Customer and MPOWER agree that
upon (i) the conversion of Customer data from the MPOWER mainframe computer to
Customer's RS6000 computer, (ii) the processing of such data in a live
transaction environment, and (iii) the payment by Customer, and receipt by
MPOWER, of the first installment of the ILF, xxxx the Prior Agreement shall be
considered thereby immediately terminated according to the terms thereof,
provided that any terms of the Prior Agreement that survive the termination
thereof shall, in accordance with the terms of the Prior Agreement, survive the
termination thereof. It is the intention of this Agreement that Customer shall
not be liable for duplicate payment in any month of the Remote Processing Fees
defined in the Prior Agreement and the ILF in this Agreement, unless Customer
decides to prepay an ILF installment prior to the commencement of production
processing under this Agreement.
16.8 Entire Agreement. This Agreement, including any Exhibits or
Schedules referred to herein and attached hereto, constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and there are no representations, understandings or agreements relative hereto
which are not fully expressed herein. No amendment, change, waiver, or discharge
hereof shall be valid unless in writing and signed by an authorized
representative of the party against which such amendment, change, waiver, or
discharge is sought to be enforced.
16.9 Publicity. It is the intent of Customer to reference MPOWER's name
and the MPOWER Software in its sales and marketing material. It is the intent
MPOWER to use Customer's name in its customer list and in marketing and sales
material. Customer shall have the right to list MPOWER's name and the MPOWER
Software in its sales and marketing materials and presentations, provided that
such listing(s) does not state or imply a recommendation, approval or
testimonial by MPOWER, and MPOWER shall have the right to list Customer's name
on customer lists, provided that such listing(s) does not state or imply a
recommendation, approval or testimonial by Customer. Each party hereby gives the
other party approval to use its name, trade name, service marks, trademarks,
trade dress or logo in such publicity releases, advertising or similar
activities. Each party agrees to cooperate with the other party- in developing
case study or other material that may be used in sales and marketing material
that may state a recommendation, approval or testimonial of the other party.
16.10 Export Assurance. Notwithstanding anything contained herein to the
contrary and regardless of any disclosure made by Customer to MPOWER of any
ultimate destination of the MPOWER Software, Customer shall not export or
re-export directly or indirectly the
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MPOWER Software acquired from MPOWER, or any technical data derived therefrom,
without first obtaining the written approval or required export license to do so
from the United States Department of Commerce or any other agency of the United
States Government or of any foreign government having jurisdiction over such
transaction, when required by an applicable statute, regulation or order.
Customer hereby assures MPOWER that it does not intend to nor will it knowingly,
without the prior written consent, if required, of the Office of Export
Administration of the U.S. Department of Commerce, Washington, DC, transmit or
ship the MPOWER Software or any modifications thereto or product thereof,
directly or indirectly, to Afghanistan or to the Peoples Republic of China or to
any Group Q, S, W, Y or Z country specified in Supplements to Section 370 of the
Export Administration Regulations issued by the U.S. Department of Commerce, as
may be amended from time to time, or any other applicable regulation.
16.11 Governmental Restrictions. Customer shall be responsible for
complying with all applicable governmental regulations of the United States or
any foreign countries with respect to Customer's transport or use of the MPOWER
Software outside of the United States, including, but nor limited to import and
export restrictions, obtaining any necessary consents, registering or filing any
documents and paying any duties, fees or taxes. Customer shall be solely
responsible for all costs associated with such compliance. Customer shall
defend, indemnify and hold MPOWER harmless from and against any and all claims,
judgments, costs, awards, expenses (including reasonable attorneys' fees) and
liability of any kind arising out of the non-compliance with applicable
governmental regulations, statute, decree or other obligation with respect to
the MPOWER Software outside the United States.
16.12 General. All provisions of this Agreement relating to
confidentiality, nondisclosure, publicity, proprietary rights and indemnity
shall survive the cancellation, termination or expiration of this Agreement. The
waiver or failure of either party to exercise any right in any instance shoji
not be deemed a waiver of any other or further right hereunder. If for any
reason a court of competent jurisdiction finds any provision of this Agreement,
or portion thereof to be unenforceable, that provision shall be enforced to the
maximum extent permissible so as to effect the intent of the parties, and the
remainder of this Agreement shall continue in full force and effect. The section
headings used herein are for reference and convenience only and shall not enter
into the interpretation thereof.
16.13 Provided Customer signs a Work Order authorizing the following
interfaces, MPOWER will provide Customer with eligibility interfaces to Customer
for OneCare, Pacificare and PCA within sixty (60) days after live production on
the MPOWER ClientServer Software, through an interface engine recommended by
MPOWER. and licensed by Customer, provided however that Customer and Customer's
clients (OneCare, Pacificare and PCA) support the implementation and eligibility
interface processes, as described and to the extent described in the applicable
Work Order(s), and authorizes the Work Order(s) in sufficient time to accomplish
the tasks. If MPOWER is not able to achieve such interfaces within the timeframe
designated in the Work Order, then MPOWER will reimburse
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Customer for the equivalent cost of one full time equivalent employee at an
annual cost of $30,000 until such time as the interfaces are working.
16.14 MPOWER will sub-license to Customer for additional license and
support fees an interface engine to facilitate electronic data interchange. In
no event shall the initial sub-license for such an interface engine exceed
$50,000 for the initial license fee, nor $10,000 per year for annual maintenance
for at least the first three (3) years of annual maintenance.
16.15 MPOWER has provided to Customer, a benchmark study. Customer may
review this benchmark study to judge whether the RS/6000 equipment configuration
that MPOWER has recommended for Customer's current and projected Member volume.
16.16 Customer and MPOWER will use their best efforts to migrate
Customer from Remote Processing Services on MPOWER's mainframe computer to
Remote Processing on Customer's RS/6000 equipment at the MPOWER. site.
16.17 MPOWER and Customer agree as follows:
a. Customer will serve as a development site and "test lab"
implementing MPOWER Solutions new mid-range Implementation plan for MPOWER.
b. Customer will assist MPOWER Solutions in marketing the MPOWER
Software and will serve as a reference site, provide interviews, allow
Customer's name and logo to be used in promotional materials and attend selected
conferences and presentations on MPOWER's behalf. There will be no use of
Customer's clients' names and logos without written consent. MPOWER Solutions
will pay Customer for any reasonable travel, lodging or other expenses related
to Customer's performance of services under this section 16.17.
c. MPOWER Solutions will provide reasonable assistance to Customer
in "selling" MPOWER capabilities to current and future clients, which shall
include, but not be limited to, on-site presentations, providing promotional
materials and participating in proposals. Customer will pay MPOWER for any
reasonable travel, lodging or other expenses related to MPOWER's performance of
services under this section 16.17.
* Confidential Treatment Requested
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
MPOWER Solutions Inc. CUSTOMER
By: By: [SIGNATURE ILLEGIBLE]
--------------------------- -----------------------------
Name: Name: [ILLEGIBLE]
------------------------- ---------------------------
------------------------------ --------------------------------
Title: Title: CEO
------------------------ --------------------------
Date: Date: 6/24/98
------------------------- ---------------------------
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INDEX OF EXHIBITS
Exhibit 1 - DEFINITION OF CORE SERVICES
Exhibit 2 - LICENSE, PROCESSING AND SERVICE FEES
Exhibit 3 - DOCUMENTATION OUTLINE
Exhibit 4 - NON-DISCLOSURE AGREEMENT
Exhibit 5 - MPOWER IDENTIFIED PARTIES FOR NON-
DISCLOSURE
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Exhibit 1
DEFINITION OF CORE SERVICES
"Core Services" are those services, in addition to the License, that are
provided to Customer by MPOWER in consideration for the payment of the License
Fees, except as otherwise provided in Schedule B. Core Services shall include
the following:
Conversion Plan: MPOWER will provide a template plan for migrating and
converting Customer members to the MPOWER Soft, are or the MPOWER System. The
template plan will include a description of tasks to be performed, milestones,
and deliverables. Customer and MPOWER will mutually agree on initial
modifications to the template plan to fit the Customer's specific situation and
circumstances. This modified template plan shall be referred to as the
"Conversion Plan"; which may be subsequently modified by agreement of the
parties from time to time.
Software Installation (if applicable): In accordance with the Conversion Plan,
MPOWER will provide up to one hundred-twenty (120) hours of systems support to
help install the MPOWER Software on a single Customer CPU(s) designated as
follows:
CPU Model Number(s): RS6000/050
------------------------
CPU Serial Number(s): 1063136
-----------------------
Prior to installation of MPOWER Software, Customer shall have installed rise
vendor software detailed on Exhibit 6.
Delivery: Unless otherwise requested in writing at the time of final delivery to
Customer of any deliverable of the MPOWER Software or of the enhancement or
modification provided under any Work Order under the License or applicable Work
Order to Customer or any Related Party, all deliverables to Customer or any
Related Party shall be by electronic delivery. Customer shall provide
appropriate communications linkages to receive such deliveries and shall pay
MPOWER the fees stated therefor in Exhibit 2.
Documentation: MPOWER will provide User Documentation and, if applicable, System
Documentation and the Functional Documentation for the functions and in the form
outlined in Exhibit 4, Documentation.
Help Desk: MPOWER shall provide a "Level Two" Help Desk to answer Customer
questions and solve Customer problems for acceptance testing and production
activities as further described herein. The Help Desk is staffed 8:00 am to 5:00
p.m., Mountain Time, Monday through Friday. Calls to the Help Desk outside of
these hours are rolled over either
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to MPOWER Operations or pager response. An Inward WATS number (currently
1-800-993- 3677) is available for Help Desk calls at no charge to the Customer.
Calls to the Help Desk that represent problems related to the MPOWER. Software
or MPOWER System are assigned a Problem Number and entered into the MPOWER.
Problem Reporting and Tracking System, where current status is available for
reporting back to the Customer.
A "Level Two" Help Desk call is a call from the Customer's internal Help Desk
seeking support for questions and problems for production activities that the
Customer's Help Desk was notable to resolve on its own (each a "Service Call").
MPOWER represents that Service Calls will be logged and responded to in
accordance with its then current Help Desk protocols for severity designation
and related response times. MPOWER's current severity designations and related
response time protocols are shown in Exhibit 1-A hereto.
Ongoing Support: MPOWER provides ongoing support in the areas of General System
Enhancement, correction of Nonconformities, and in certain specific situations,
support for modifications, whether made by Customer or MPOWER:
General System Enhancements: See Section 2.4.
Correction of Nonconformities: See Section 2.5.
Support for Modifications: See Sections 2.7 and 2.8(b).
Annual Audit: Annually, beginning within thirty (30) days after the anniversary
of the Effective Date, MPOWER, with Customer agreement, will audit the way the
Customer is using the MPOWER. Software or MPOWER System, and offer
recommendations for more efficient utilization. This MPOWER audit will be
performed only with the express proviso that Customer makes available to MPOWER
audit team knowledgeable personnel who can fully represent Customer's use of
MPOWER Software or MPOWER System.
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Exhibit 1-A
Severity Definitions and Resolution Process
- Severity 1.
The problem causes complete loss of service ha the production and
staging environment and work cannot reasonably continue. The problem or defect
has one or more of the following characteristics:
- Data corruption. Physical or logical data is unavailable or
incorrect. Examples: Block format corruption, invalid indices,
corruption of meta-data, incorrect results.
- Critical functionality is not available.
- System hangs. The process hangs indefinitely or there is severe
performance degradation, causing unreasonable waits for resources or
response, as if the system is hanging.
- The entire MPOWER application crashes repeatedly.
- Database process or background processes fall and continue to fall
after restart attempts.
- Potential for above occurrences is deemed imminent.
Resolution of severity 1: Until the issue is resolved MPOWER Solutions will work
on Severity 1 around the dock (7x24). As a result of the severity, the customer
must provide MPOWER with a point of contact during the 7x24 period. The
customer's point of contact will assist the MPOWER customer support and
development scarf in gathering data, testing fixes in the customer's tearing
region, and applying fixes to the customer production environment.
- Severity 2:
Problem or product defect causes a severe impact on the customer's
business regardless of customer environment. No workaround is available, however
operations can continue in a restricted fashion. The problem or defect has one
or more of the following characteristics:
- Business Impact Examples: The customer can handle current volume,
but will not be able to handle quarter dose, At dose, customer finds
totals wrong, but close is not for a few weeks.
- Internal software error, causing the application to fail to run to
completion, or return wrong results, or software error severely
decades performance.
- Some important functionality is unavailable, yet the system can
continue to operate in a restricted fashion.
- Potential for above occurrences is defined imminent.
Resolution of Severity 2: MPOWER Solutions will work on Severity 2 bug
based on customer assigned priority. Severity 2 fixes will be added in the next
scheduled maintenance or patch release.
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- Severity 3.
Problem or product defect causes minimal impact on the Customer's
business. The impact of the problem or defect is minor or an inconvenience, such
as a manual bypass to restore product functionality. The problem or defect has
one or more of the following characteristics:
- A software error for which there is an acceptable workaround.
- Software error minimally degrades performance. Software error or
- incorrect behavior has minor impact the operation of the system.
Resolution of Severity 3: Fixes for severity 3 bugs will be added to the
priority list for the next major scheduled release of the product. The order of
priority for resolving severity 3 issues will be assigned jointly by the
Customer and MPOWER.
- Severity 4.
The problem or product defect causes NO impact on the Customer's
business. The problem or defect is a minor error, incorrect behavior, or a
documentation error that in no way impedes the operation of a system.
Resolution of Severity 4: Fixes for severity 4 bugs will be added to the
priority list for the next major scheduled release of the product. The order of
priority for resolving severity 4 issues will be assigned jointly by the
Customer and MPOWER.
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Exhibit 2
LICENSE, PROCESSING AND SERVICE FEES
I. LICENSE FEES
A. License Fees. MPOWER License Fees for the use of the MPOWER Software
are broken into three(3) components: (i.) Initial License Fee (ILF) (ii) License
Extension Fee and (iii) Maintenance Fee (MF). These components are intended to
provide Customer with initial and ongoing rights to use the Software pursuant to
the terms of the License, Processing and Services Agreement.
1. Initial License Fee: The ILF is the initial fee payable by
Customer for the License to use the MPOWER Software. The
ILF for Customer is set forth in Section B(1) below.
2. License Extension Fee. The License Extension Fee covers
Members added to Customer's business beyond Members
covered by the ILF. It is set forth in Section B (2)
below.
2. Maintenance Fee: The MF is the fee payable by Customer for
the ongoing License and support for the MPOWER Software,
as described in Sections 3.4 and 3.5 of the Agreement.
B. License Fees (ILF, and MF) and Advanced Payments for Customer and
Related Parties
1. Initial License Fee.
The Initial License Fee payable by Customer for the
License of the MPOWER Software for the Subsystems listed
below in Subsection II. in this Exhibit B for Customer is
$400,000 (less a credit of $95,848.69) which will be
payable by Customer in twelve (12) equal installments
commencing as of the processing of Members on Customer's
RS6000 in a live production environment. The ILF shall
permit Customer to use the MPOWER Software for Members
that are Members as of the date of this Agreement and for
Members that become Members as the result of the natural
growth of Customer's existing business. It is the intent
of this Agreement that the first month for which Remote
Processing Fees under the Prior Agreement are not due is
the month when the first installment of the ILF under this
Agreement is due.
2. License Extension Fee. Members added to Customer's
business as a result of merger or acquisition, either of
Customer, or of another corporation or of a block of
business by Customer from another
* Confidential Treatment Requested
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corporation, may be added to the License by payment of a
license extension fee ("License Extension Fee") of [*]
($[*]) per Member when such Members are initially added
to the MPOWER Software in a production environment.
Subsequent normal growth of Members to this business shall
then be covered under the License
3. Extension Fee thus paid. Maintenance Fee for Customer and
Related Parties. The Maintenance Fee for the MPOWER
Software for the Subsystems listed below in Subsection II
in this Exhibit B for use by Customer will be paid by
Customer in accordance with the following schedule:
a. $[*] per year paid in twelve equal monthly
installments with the first payment due
July 1, 1999 for Members covered under
the ILF.
b. For Members covered under a License
Extension, the MF shall be an annual fee of
[*]% of the License Extension Fee paid by
Customer, payable in twelve equal monthly
installments with the first payment due in
the month following the occurrence of the
event triggering the License Extension.
4. Source Code Buyout Provisions. Customer shall have the
option to buyout the rights to the MPOWER Software source
code ("Source Code Buyout") upon providing MPOWER with
three (3) months advance written notice, according to the
following schedule:
- up to the third anniversary of the date of this
Agreement, upon the single payment to MPOWER of
$1,000,000 and any MF payment owed by Customer to
MPOWER pursuant to paragraph B.3 above;
- upon or after the third anniversary of the date of
this Agreement, upon the single payment to MPOWER of
$750,000;
- upon or after the fourth anniversary of the date of
this Agreement, upon the single payment to MPOWER of
$500,000; or
- upon or after the fifth anniversary of the date of
this Agreement, upon the single payment to MPOWER of
$250,000.
* Confidential Treatment Requested
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Upon the exercise of the Source Code Buyout, the terms of the
Agreement shall remain unchanged except, (a) Customer shall have
the right to modify the MPOWER Software without first obtaining
the consent of MPOWER and without notifying MPOWER; (b) Customer
shall no longer be entitled to future Releases or General System
Enhancements, and (c) Customer shall not be entitled to the
future provision of the Core Services. Any services provided by
MPOWER to Customer subsequent to Customer's completion of the
Source Code Buyout shall be provided as Supplemental Services at
MPOWER's then current rates. Upon exercise of the Source Code
Buyout, Customer's License shall not change and Customer may use
the source code only to the same extent as Customer's License and
License Extensions permit. Furthermore, it is explicitly noted
that Customer is not permitted to create Derivative Works from
the source code not to use it for re-license or re-sale nor on
behalf of entities not covered by the License or License
Extension.
II. SUBSYSTEMS OF MPOWER SOFTWARE INCLUDED WITHIN LICENSE FEE
Group &: Subscriber/Member Enrollment
Premium Billing & AR
Provider
Certification
Claims
Capitation & Fund Accounting
Accounting & Financial Reports (Batch Only)
Letter Writing
Communications Tracking
Data Listing &: Row & Columns Reporting
III. FEES FOR SUPPLEMENTAL SERVICES
Supplemental Services Fees, as incorporated in Work Orders, may be
either fixed-price or time and materials. Time and materials rates will
include the Personnel Resources
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Fees for MPOWER personnel and its subcontractors relative to the MPOWER
Software. The Personnel Resource Fees are as follows:
A. Personnel Resource Fees for MPOWER personnel and its
subcontractors relative to Supplemental Services for the MPOWER
Software are billable at the following rates:
For 1998:$[*] per hour
For 1999:$[*] per hour
Thereafter: at MPOWER's then current applicable fee schedule.
B. Total fees for the conversion of Customer from Remote Processing
to Customer Processing shall be capped at the sum of $[*],
accrued at the mount set forth above as Personnel Resource Fees.
The cap shall apply only to MPOWER services related directly to
conversion services and shall nor include services and products
of third party contractors for third party products, nor shall it
include services of MPOWER related to such third party products
or contractors. The conversion period will end when Customer
commences Customer Processing for any of its customers.
C. During conversion MPOWER shall charge Customer for third party
services as a direct pass through.
D. After conversion, the rates for outside independent contractors
provided by MPOWER for Supplemental Services shall be the greater
of (i.) the rates set forth above (for applicable skill sets) or
(ii.) a rate to be mutually agreed upon in advance by Customer
and MPOWER and set forth in an applicable Work Order
IV. COMPUTER OPERATIONS FEES
MPOWER will, at Customer's request, provide, as part of the ILF,
computer operations services for Customer by operating Customer's RS6000
computer at MPOWER's facility without additional charge to Customer for
the first month of a live production environment on the RS6000, provided
Customer is current with its payment of the ILF. After Customer has been
in a live production environment for one (1) month, MPOWER will continue
to provide computer operations services for Customer by operating
Customer's RS6000 computer at MPOWER's facility, at Customer's request,
at the rate of [*] dollars ($[*]) per month. Customer must remain
current in its payment of the ILF. Computer operations services shall
be indicated in an applicable Work Order.
* Confidential Treatment Requested
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V. REMOTE PROCESSING FEES
Remote Processing Fees shall continue under the Prior Agreement until
Customer commences a live production environment under this Agreement.
It is not anticipated that there will be Remote Processing Fees under
this Agreement, as that term is used in the Prior Agreement. There may
be computer operations services under this Agreement and, if so, they
will be covered under an applicable Work Order.
VI. OTHER FEES.
Other fees may pertain to the use by Customer of the MPOWER System for
set-up, testing, training, acceptance testing or other uses not related
to the production use of the MPOWER System for processing active Members
of Customer or of a Related Party. Such other fees will be indicated in
a Work Order and may include fees for third party consultants and
vendors.
VII. PAYMENT BY MPOWER TO EMI FOR CONVERSION OF EMI CUSTOMER
TO MPOWER LICENSE
Each Party acknowledges that from time to time a customer of EMI may
elect to acquire a license to use the MPOWER Software on its own, and
not through EMI. In those cases, where a customer of EMI elects to
acquire a license from MPOWER and uses the data and data setups from
EMI, MPOWER will pay to EMI a royalty payment of $[*], over the
timeframe of the implementation of such customer and initial use by such
customer of its own licensed software instance for the MPOWER Software,
in consideration of the reduced implementation effort for the MPOWER
Software because MPOWER and such customer can use the data and setups
already accomplished by EMI. For this consideration, EMI permits MPOWER
to use such setups and data for the respective customer. Notwithstanding
the above, MPOWER will owe no such payment to EMI for customers that are
jointly marketed to and signed as "joint" customers by both MPOWER and
EMI under the MPOWER QuickStart program or a similar program. And
further, notwithstanding anything else in this Agreement, such
QuickStart customers will not be covered under this Agreement and will
be assessed computer license or usage fees outside of this Agreement and
under a separate agreement or agreements among the parties, including
EMI and MPOWER.
* Confidential Treatment Requested
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Exhibit 3
DOCUMENTATION OUTLINE
MPOWER - USER REFERENCE MANUAL
TABLE OF CONTENTS
BATCH SYSTEM VOLUME 1
GROUP & SUBSCRIBER/MEMBER ENROLLMENT SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Batch Group & Subscriber/Member Enrollment Overview
Chapter 3 Group Termination - GRPTRM
Chapter 4 Change Member identification - CHGSID
Chapter 5 Dual / Duplicate Member Report - DUPMEM
Chapter 6 Special Identification Card Program - IDCARD
Chapter 7 Member Month Report - MBRMTH
Chapter 8 Ad Hoc Membership Reporting System - MBRRPT
Chapter 9 MEMCHG
Chapter 10 MEMELG
Chapter 11 Member Outputs - MEMOUT
Chapter 12 Member Listing - NEWLST
Chapter 13 Overage Dependent Label & Listing Program - OVDPLB
Chapter 14 Health Care Financing Administration Reply Data Report
Chapter 15 Subscriber Mailing Labels - SBLBGR
Chapter 16 Subscriber Mailing Labels By Primary Care Physician
(PCP) - SBLBPV
Chapter 17 Send HCFA Transmission - SDHCFA
Chapter 18 Senior Choice Enrollment - SRCHOI
Chapter 19 Subscriber Labels - SUBLBL
BATCH SYSTEM VOLUME 2
PREMIUM BILLING & ACCOUNTS RECEIVABLE SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Batch Premium Billing & Accounts Receivable Subsystem Overview
Chapter 3 Aged Accounts Receivable Report - AGARMO
Chapter 4 Detailed Accounts Receivable Report - ARDET
Chapter 5 Accounts Receivable Reconciliation - ARRECN
Chapter 6 Cash Receipts List - CSHRCP
Chapter 7 Current Accounts Receivable Report - CURAR
Chapter 8 Produce Premium Bills - PRMBIL
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Chapter 9 Detail Of Premium Revenue - PRMREV
Chapter 10 Reset Billing Run - RESBIL
BATCH SYSTEM VOLUME 4
PROVIDER SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Batch Provider Subsystem Overview
Chapter 3 Provider List By Hospital -
Chapter 4 Independent Practice Association Eligibility - IPAELG
Chapter 5 Primary Care Physician Availability Report - PCPAVL
Chapter 6 Provider Information Report - PVINFO
Chapter 7 Provider Mailing Labels - PVLBLS
Chapter 8 Terminated Provider's List Of Members - TRMPCP
BATCH SYSTEM VOLUME 5
CERTIFICATION SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Batch Certification Subsystem Overview
Chapter 3 Acute & Sub-Acute Bed days Report - ASABED
Chapter 4 Catastrophic Utilization Management Report - CATUMA
Chapter 5 Medical Management Detail Report - CRTMMI
Chapter 6 Quality Management Detail - CRTQMI
Chapter 7 Pended Certification Reports - CRTPND
Chapter 8 Hospital Log Listing Report - GENLOG
Chapter 9 Hospital Census Reports - HOSCEN
Chapter 10 Inpatient Summary by Hospital Admissions Report - INPHOS
Chapter 11 inpatient Summary By Physicians Admissions - INPPHY
Chapter 12 Mortality Report - MRTLTY
Chapter 13 Certification By Procedure Grouping - PXAPXG
Chapter 14 Hospital Service Category Report - SVCCAT
Chapter 15 Certification Monthly Statistical Summary - UMSTAT
BATCH SYSTEM VOLUME 6
CLAIMS SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Batch Claims Subsystem Overview
Chapter 3 Aging Report - Claims Set To Pay - AGECLM
Chapter 4 Member Claim Audit - AUDCLM
Chapter 5 Carrier List With Comments - CARCOM
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Chapter 6 Carrier Listing - CARLST
Chapter 7 Check Run Program - CHKRUN
Chapter 8 Catastrophic Claims Report - CLMCAT
Chapter 9 Claims Control Listing - CLMCTL
Chapter 10 Claims Processing Performance Report - CLMPPL
Chapter 11 Claim Transaction Report - CLMTRN
Chapter 12 COB Suspended Claims Processing - COBSUS
Chapter 13 Explanation Of Benefits - EOB
Chapter 14 Denial Letter Generation - DENLTR KLM
Chapter 15 Hold Claims - HLDCLM
Chapter 16 Member Claim Detail Report - MBRCDR
Chapter 17 Provider Claim Detail Report - PRVCDR
Chapter 18 Reset Checking Account Codes - RESACT
Chapter 19 Reset Check Run - RESCKS
Chapter 20 Reverse / Unset Claims - REVUNS
Chapter 21 Set Checking Account Code - SETACT
Chapter 22 Disconnect Paid Claims - SETCHK
Chapter 23 Claims Summary By Employee - SUBCLM
Chapter 24 Suspended Claims List - SUSCLA
Chapter 25 Suspended Claims Summary - SUSSUM
Chapter 26 Unpaid Claims Report - UNPDCL
Chapter 27 Batch Claims Processing - BATCLM
BATCH SYSTEM VOLUME 7
CAPITATION & FUND ACCOUNTING
Chapter 1 Users Reference Manual System Overview
Chapter 2 Batch Capitation & Fund Accounting Overview
Chapter 3 Capitation And Fund Budgeting - CAP JOB
Chapter 4 Fund Status - CFSRPT
Chapter 5 Capitation Deduction Run - CAPDED
Chapter 6 Batch Capitation & Fund Accounting Subsystem Output
Error Messages
BATCH VOLUME 8
ACCOUNTING & FINANCIAL REPORTS
Chapter 1 Users Reference Manual System Overview
Chapter 2 Batch Accounting & Financial Reports
Chapter 3 Claims Lag Report - AETLAG
Chapter 4 Define Report Grouping Codes - DEFINC
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Chapter 5 Display Report Grouping Codes - DISINC
BATCH SYSTEM VOLUME 9
LETTER WRITING SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Letter Writing Subsystem Overview
Chapter 3 Submit Batch Letters - BATLTR KLM
Chapter 4 Print Letters - PRTLTR
BATCH SYSTEM VOLUME 10
INTERFACES SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Interfaces Subsystem Overview
Chapter 3 Dental
Chapter 4 Pharmacy Management Interface - INTAPM
Chapter 5 Accounts Receivable Reconciliation - AR Interface
Chapter 6 Autocoder(R) Interface
Chapter 7 Claims Reporting System Interface - CRS
Chapter 8 Electronic Eligibility
Chapter 9 Electronic Encounters
Chapter 10 Enterprise Provider Database Interface - EPDB
Chapter 11 General Ledger Interface
Chapter 12 Lockbox Interface - LOCKBOX
Chapter 13 Marketing Survey Interface
Chapter 14 Medsyte(TM) Interface
Chapter 15 Provider Eligibility Rosters Interface
Chapter 16 Regional Event Tracking System Interface - RETS
Chapter 17 Sales Performance & Compensation System Interface - SPCS
Chapter 18 Data Migrator
Chapter 19 MCI interface
Chapter 20 Electronic Claims EDI Interface
Chapter 21 Accounts Payable/General Ledger Interface
Chapter 22 Send HCFA Transmission - SDHCFA
Chapter 23 Health Care Financing Administration Reply Data Report
BATCH SYSTEM VOLUME 11
SET-UPS & REFERENCE INFORMATION SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Batch Set-Ups & Reference Information Subsystem Overview
Chapter 3 Procedure File Listing Editing Information - C4EDIT
Chapter 4 Procedure File Listing Pricing Information - C4PRIC
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Chapter 5 Document File Listing - DOCLST
Chapter 6 Diagnosis Listing - DXLST
Chapter 7 Fee File Listing - FEELST
Chapter 8 Fee Schedule Report - FEESCH
Chapter 9 ICD9-CM Procedure File Listing - ICD9PX
Chapter 10 Provider Participation Area Report - PPDRPT
-------------------------------------------------------------------------------
ON-LINE SYSTEM
SET-UPS, REFERENCE & UVAM SUBSYSTEM VOLUME 1
Chapter 1 Users Reference Manual System Overview
Chapter 2 On-Line Group Enrollment Subsystem Overview
Chapter 3 Add New Group - ADDGRP
Chapter 4 Adding Group Contract - ADDGRP
Chapter 5 Adding Benefits - ADDGRP
Chapter 6 Adding Premium Billing Rates - ADDGRP
Chapter 7 Adding Average Contract Size Definitions - ADDGRP
Chapter 8 Adding Benefit Riders Information - ADDGRP
Chapter 9 Display Group - DISGRP
Chapter 10 Displaying Contract For Group - DISGRP
Chapter 11 Displaying Benefits For Group - DISGRP
Chapter 12 Displaying Rates For Group - DISGRP
Chapter 13 Displaying The Average Contract Size - DISGRP
Chapter 14 Modify Group - MODGRP
Chapter 15 Modifying Group Contract - MODGRP
Chapter 16 Modifying Benefits For Group - MODGRP
Chapter 17 Modifying Benefit Riders Information - MODGRP
Chapter 18 Modifying Premium Billing Rates - MODGRP
Chapter 19 Modifying Average Contract Size Definitions - MODGRP
Chapter 20 Add Market Projections - ADDPRJ
Chapter 21 Display Market Projections - DISPRJ
Chapter 22 Add Group Comments - ADDGCO
Chapter 23 Display Group Comments - DISGCO
Chapter 24 Group Name List - NAMGRP
Chapter 25 Define Group Contract Riders - DEFRDR
Chapter 26 Display Rider Details - DISRDR
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ON-LINE SYSTEM VOLUME 2
SUBSCRIBER & MEMBER ENROLLMENT SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 On-Line Subscriber & Member Enrollment Subsystem Overview
Chapter 3 Add Family - ADDFAM
Chapter 4 Display Family - DISFAM
Chapter 5 Modify Family - MODFAM
Chapter 6 Display Commercial Member Status History - DISMST
Chapter 7 Display Other Billing Information - DISOTH
Chapter 8 Display Subscriber Status - DISSST
Chapter 9 Subscriber Identification Number Assignment - NEXTID
Chapter 10 Add Duplicate Insurance Coverage Information - ADDDCI
Chapter 11 Duplicate Coverage Comments - DClCOM
Chapter 12 Display Duplicate Coverage - DISDCI
Chapter 13 Update Pre-Existing Condition - ADDPEC
Chapter 14 Display Pre-Existing Medical Conditions - DISPEC
Chapter 15 Add Family Comments - ADDFCO
Chapter 16 Display Family Comments - DISFCO
Chapter 17 Find Member List - FNDMBR
Chapter 18 Cross Reference Identification Number - IDXREF
Chapter 19 Member Name List - NAMMBR
Chapter 20 Title 19 Member - T19MBR
Chapter 21 Adding Member Dual Coverage - ADDMDC
Chapter 22 Display Member Dual Coverage - DISMDC
Chapter 23 Add Medicare Member - ADDMED
Chapter 24 Display Medicare Member - DISMED
Chapter 25 Modify Medicare Member - MODMED
ON-LINE SYSTEM VOLUME 3
PREMIUM BILLING & ACCOUNTS RECEIVABLE
Chapter 1 Users Reference Manual System Overview
Chapter 2 On-Line Premium Billing & Accounts Receivable
Chapter 3 Define Premium Rate Table - DEFRTB
Chapter 4 Display Premium Rate Table - DISRTB
Chapter 5 Define Premium Billing Format - BILFMT
Chapter 6 Add Customer Account - ADDCUS
Chapter 7 Display Customer Account - DISCUS
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Chapter 8 Add Payment - ADDPAY
Chapter 9 Adjust Customer Account - ADJACT
Chapter 10 Add Customer Account Comments - ADDCAC
Chapter 11 Display Customer Account Comments - DISCAC
Chapter 12 Add Premium Billing History Records - ADDHST
Chapter 13 Display Subscriber Premium Billing History - DISHST
Chapter 14 Modify Premium Billing History Records - MODHST
Chapter 15 Change Billed Through Date - CHGBIL
ON-LINE SYSTEM VOLUME 5
PROVIDER SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 On-Line Provider Subsystem Overview
Chapter 3 Define Provider Category - DEFCAT
Chapter 4 Display Provider Category - DISCAT
Chapter 5 Add New Provider - ADDPRV
Chapter 6 Adding A Provider In Multiple Networks - The IPA Equals 99999
Chapter 7 Adding Discount And Interest Data
Chapter 8 Display Provider- DISPRV
Chapter 9 Displaying Network/HIO/XXX Data
Chapter 10 Modify Provider Information - MODPRV
Chapter 11 Modifying A Provider In Multiple Networks - MODPRV - The IPA
Equals 99999
Chapter 12 Modifying Discount And Interest Data - MODPRV
Chapter 13 Add Provider Practice Addresses - ADDPRA
Chapter 14 Display Provider Practice Addresses - DISPRA
Chapter 15 Add Provider Payment Address - ADDPPA
Chapter 16 Provider Payment Addresses Display - DISPPA
Chapter 17 Define Tax Identification Owner - DEFTAX
Chapter 18 Display Tax identification Owner - DISTAX
Chapter 19 Add Provider Comments - ADDPCO
Chapter 20 Display Provider Comments - DISPCO
Chapter 21 Display Providers By Drug Enforcement Agency Number - DEAPRV
Chapter 22 Provider internal Revenue Service Name List - IRSPRV
Chapter 23 Provider Name List - NAMPRV
Chapter 24 Title 19 Member Lookup - T19PRV
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ON-LINE SYSTEM VOLUME 6
CERTIFICATION SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 On-Line Certification Subsystem Overview
Chapter 3 Adding Procedure Authorizations - ADDPXA
Chapter 4 Adding Procedure Authorization Review Lines - ADDPXA
Chapter 5 Displaying Procedure Certifications - DISPXA
Chapter 6 Modifying Procedure Authorizations - MODPXA
Chapter 7 Modifying Procedure Authorization Review Lines - MODPXA
Chapter 8 Adding Outpatient Surgery Authorizations - ADDOSA
Chapter 9 Adding Outpatient Authorization Comments - ADDOSA
Chapter 10 Display Outpatient Surgery Authorization - DISOSA
Chapter 11 Modifying Outpatient Surgery Authorizations - MODOSA
Chapter 12 Modifying Outpatient Authorization Comments - MODOSA
Chapter 13 Add Inpatient Certification - ADDLOG
Chapter 14 Adding Inpatient Certification Review Data - ADDLOG
Chapter 15 Display Inpatient Certification - DISLOG
Chapter 16 Modify Inpatient Certification - MODLOG
Chapter 17 Modifying Inpatient Certification Review Data - MODLOG
Chapter 18 List Hospital Certification - HOSLOG
Chapter 19 Member Certifications - MBRCRT
Chapter 20 Display Member Certification Eligibility - DISMCE
Chapter 21 List Member Certification - MBRLOG
Chapter 22 Member Procedure Certification List - MBRPXA
Chapter 23 Provider Procedure Certification List - PRVPXA
Chapter 24 Delete Procedure Authorization - DELPXA
Chapter 25 Delete Inpatient Certification - DELLOG
Chapter 26 Add Referral Certification - ADDREF
Chapter 27 Modify Referral Certification - MODREF
Chapter 28 Display Referral Certification - DISREF
Chapter 29 Member Referral Certification - MBRREF
Chapter 30 Provider Referral Certification Listing - PRVREF
ON-LINE SYSTEM VOLUME 7
CLAIMS SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 On-Line Claims Subsystem Overview
Chapter 3 Add General Claim - ADDGEN
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Chapter 4 Adding Additional Claim Lines - ADDGEN
Chapter 5 Modifying & Viewing General Claim Pricing & Payments - ADDGEN
Chapter 6 Displaying Payment Address Verifications - ADDGEN
Chapter 7 Add Inpatient Claim - ADDINP
Chapter 8 Adding Claim Line Details -ADDINP
Chapter 9 Inpatient Claim Payment Category Billing Breakout - ADDINP
Chapter 10 Modifying Inpatient Claim Pricing & Payments - ADDINP
Chapter 11 Displaying Payment Address Verifications - ADDINP
Chapter 12 Modify General Claims - MODCLM
Chapter 13 Modify Inpatient Claims - MODCLM
Chapter 14 Modify Credit Claims - MODCLM
Chapter 15 Displaying Payment Address Verifications - MODCLM
Chapter 16 Display Old Claim Numbers - OLDCLM
Chapter 17 Suspended Claim List - SUSCLM
Chapter 18 Add Coordination Of Benefits Recovery- ADDCOB
Chapter 19 Add Credit Claim - ADDCRE
Chapter 20 Adjust Claim - ADJCLM
Chapter 21 Batch Reprocessing Suspended Claims - BRSCLM
Chapter 22 Manual Claim Payment - PAYCLM
Chapter 23 Add Refund - REFUND
Chapter 24 Unset Claim To Pay - UNSCLM
Chapter 25 Void Check - VODCHK
Chapter 26 Claim Comments - CLMCOM
Chapter 27 BATCLM - Batch Claims Processing
Chapter 28 Check Input - CHKINP
Chapter 29 Check Input By Run Type Code - CKINP2
Chapter 30 Add Transfer Business Data - ADDTBD
Chapter 31 Modify Transfer Business Data - MODTBD
Chapter 32 Display Benefit Thresholds - BENINQ
Chapter 33 Claims Associated With Benefits - BENINQ
Chapter 34 Check Claim List - CHKCLM
Chapter 35 Reverse / Voided Check Claim - CHKCLM
Chapter 36 Display General Claim - DISCLM
Chapter 37 Display Inpatient Claims - DISCLM
Chapter 38 Display Credit Claim - DISCLM
Chapter 39 Member Claim List - MBRCLM
Chapter 40 Provider Claim List - PRVCLM
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Chapter 41 Set To Pay Claim List - STPCLM
Chapter 42 Add New Carrier - ADDCAR
Chapter 43 Display Carrier - DISCAR
Chapter 44 Modify Carrier - MODCAR
Chapter 45 Carrier Name List - NAMCAR
Chapter 46 Add Claim Comments - ADDCMC
Chapter 47 Display Claim Comments - DISCMC
Chapter 48 Modify Claim Comments - MODCMC
ON-LINE SYSTEM VOLUME 8
CAPITATION & FUND ACCOUNTING SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Capitation & Fund Accounting Subsystem Overview
Chapter 3 Define Capitation Claim Deduction Report - DEFCCR
Chapter 4 Display Capitation Claim Deduction Report Definition - DISCCR
Chapter 5 Define Capitation Detail Report - DEFCDR
Chapter 6 Display Capitation Detail Report Definition - DISCDR
Chapter 7 Define Capitation Summary Report - DEFCSR
Chapter 8 Display Capitation Summary Report - DISCSR
Chapter 9 Define Cluster Code - DEFCLC
Chapter 10 Display Cluster Code - DISCLC
Chapter 11 Add Entity - ADDENT
Chapter 12 Adding Entity Contract - ADDENT
Chapter 13 Displaying Rate Verification -
Chapter 14 Adding / Modifying Entity Comments - ADDENT
Chapter 15 Display Entity - DISENT
Chapter 16 Modify Entity - MODENT
Chapter 17 Adding and Modifying Entity Contracts - MODENT
Chapter 18 Displaying Rate Verification - MODENT
Chapter 19 Adding / Modifying Entity Comments - MODENT
Chapter 20 Define Completion And Credibility Factors - DEFCCF
Chapter 21 Display Completion And Credibility Factors - DISCCF
Chapter 22 Update Member Capitation Status - ADDMCS
Chapter 23 Display Member Capitation Status - DISMCS
Chapter 24 Capitation Processes Run Dates - CAPDTE
Chapter 25 Display Capitation Payment Data - DISCAP
Chapter 26 Manual Capitation Adjustment - CAPADJ
Chapter 27 Cluster Codes By Name Within Type - NAMCLC
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Chapter 28 Entity List By Name - NAMENT
ON-LINE SYSTEM VOLUME 9
LETTER WRITING SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 On-Line Letter Writing Subsystem Overview
Chapter 3 Add Letter Paragraph - ADDLPA
Chapter 4 Display Letter Paragraph - DISLPA
Chapter 5 Modify Letter Paragraph - MODLPA
Chapter 6 Add Letter Run Type - ADDLRT
Chapter 7 Display Letter Run Type - DISLRT
Chapter 8 Modify Letter Run Type - MODLRT
Chapter 9 Add Letter Type - ADDLTP
Chapter 10 Display Letter Type - DISLTP
Chapter 11 Modify Letter Type - MODLTP
Chapter 12 Add Letter Series - ADDSRS
Chapter 13 Display Letter Series - DISSRS
Chapter 14 Modify Letter Series - MODSRS
Chapter 15 Add Letter Definition - ADDLTR
Chapter 16 Defining Database Inserts - ADDLTR
Chapter 17 Defining Letter Text - ADDLTR
Chapter 18 Display Letter Definition - DISLTR
Chapter 19 Displaying Letter Text - DISLTR
Chapter 20 Modify Letter Definition - MODLTR
Chapter 21 Defining Database Inserts - MODLTR
Chapter 22 Modifying Letter Text - MODLTR
Chapter 23 Find Letter - FINLTR
Chapter 24 Send Letter - SNDLTR
Chapter 25 Display Review Letters - DISRLT
Chapter 26 Display Letter By User - LTRENT
Chapter 27 Response to Letter- LTRRSP
Chapter 28 Review Letter - RVWLTR
Chapter 29 Display History Letter - DISHLT
Chapter 30 Find Letters In History File - FINHLT
ON-LINE SYSTEM VOLUME 10
SET-UPS, REFERENCE & UVAM INFORMATION SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
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Chapter 2 Set-Ups, Reference & UVAM Information Overview
Chapter 3 HIO / XXX User Value Assignment Module
Chapter 4 Type Of Service User Value Assignment Module
Chapter 5 Certification Requirement User Value Assignment Module
Chapter 6 Certification Action User Value Assignment Module
Chapter 7 Care Set User Value Assignment Module
Chapter 8 Point of Service User Value Assignment Module
Chapter 9 Fee Group User Value Assignment Module
Chapter 10 Checking Account User Value Assignment Module
Chapter 11 Member Class User Value Assignment Module
Chapter 12 Certification Number User Value Assignment Module
Chapter 13 Group Access User Value Assignment Module
Chapter 14 Member Network User Value Assignment Module
Chapter 15 Benefit Plan
Chapter 16 Element Variables
Chapter 17 Display HMO Information - DISHMO
Chapter 18 Display Control E File - DISCTE
Chapter 19 Display Control 2 File - DISCT2
Chapter 20 Display Object Module - DISOBJ
Chapter 21 Display Benefit Plan - DISPLN
Chapter 22 Define Procedure - DEFPX
Chapter 23 Display Procedure -
Chapter 24 Display Diagnosis - DISDX
Chapter 25 Document Definition Codes - DOCDEF
Chapter 26 Define Account Code - DEFACT
Chapter 27 Display Checking Account Number - DISACT
Chapter 28 Define Provider Pricing Data - ADDPPD
Chapter 29 Adding Hospital Fees
Chapter 30 Display Provider Pricing Data - DISPPD
Chapter 31 Define General Fee - DEFFEE
Chapter 32 Display Fee History - DISFEE
Chapter 33 Add Conversion Factors - ADDCFC
Chapter 34 Display Conversion Factors - DISCFC
Chapter 35 Define Procedure Modifier - DEFMOD
Chapter 36 Display Procedure Modifier- DISMOD
Chapter 37 Display Usual & Customary Rate Data
Chapter 38 DEFVMP - Define Place Of Service Codes
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Chapter 39 DISVMP - Display Place Of Service Codes
Chapter 40 Define Adjusted Average Per Capita Cost - DEFAPC
Chapter 41 Display Adjusted Average Per Capita Cost - DISAPC
Chapter 42 Internal Security System - SECURE
Chapter 43 HMO2 Record
Chapter 44 Outpatient Case Rate Pricing
Chapter 45 Case Rate User Value Assignment Module
ON-LINE SYSTEM VOLUME 11
COMMUNICATIONS TRACKING SUBSYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Communications Tracking Subsystem Overview
Chapter 3 Add Telephone Log
Chapter 4 Displaying Telephone Logging - XXXXXX
Chapter 5 Modify Telephone Logging Records-MODTEL Function
Chapter 6 List of Logged Calls - LSTTEL
DATA LISTING REPORTING SYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Data Listing Reporting System Overview
Chapter 3 Define List Report - DEFLST
Chapter 4 List Report - LSTRPT
ROWS AND COLUMNS REPORTING SYSTEM
Chapter 1 Users Reference Manual System Overview
Chapter 2 Define Rows And Columns Report - DEFRAC
Chapter 3 Submit Rows And Columns Report - RACRPT
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Exhibit 4
NON-DISCLOSURE AGREEMENT ("Agreement")
This Agreement is entered into as of 24th June, 1998, by and between MPOWER
Solutions Inc., a Delaware corporation ("MPOWER"), with its principal place of
business at 0000 Xxxxxx Xxxxx, X.X., Xxxxxxxxxxx, Xxx Xxxxxx 00000 and Employers
Mutual, Inc. ("Customer") with its principal place of business located at 0000
Xxx Xxxx Xxxx., Xxxxxxxxxxxx, Xxxxxxx. WHEREAS, each party wishes to disclose
and to receive from the other party certain proprietary information for the
purpose of conveying the MPOWER software license as set forth in the Agreement.
WHEREAS, the parties wish to protect certain confidential and proprietary
information which may be disclosed between them, and for and in consideration of
the disclosures made and to be made hereunder, the parties agree as follows:
1. For purposes of this Agreement, "Owner" means the party disclosing Trade
Secrets and Confidential Information hereunder, whether such party is
MPOWER or Customer, and "Recipient" means the party receiving any Trade
Secrets or Confidential Information hereunder, whether MPOWER or the
Customer.
2. Recipient acknowledges and agrees that Owner claims that the Trade Secrets
and the Confidential Information of Owner are the sole and exclusive
property of Owner (or a third party providing such information to Owner)
and that Owner owns all worldwide copyrights, trade secret fights,
confidential information rights and all other property rights therein.
3. Recipient acknowledges and agrees that disclosures of the Trade Secrets
and the other Confidential Information of Owner to Recipient does not
confer upon Recipient any license, interest or rights of any kind in and
to the Trade Secrets and Confidential Information.
4. Recipient will hold in confidence and, without the prior written consent
of Owner, will not reproduce, distribute transmit, reverse engineer,
decompile, disassemble or transfer, directly or indirectly, in any form,
by any means, or for any purpose, the Trade Secrets or the Confidential
Information of Owner or any portion thereof communicated, discussed,
delivered or made available by Owner to or received by Recipient.
Notwithstanding the foregoing, Recipient may only disclose the Trade
Secrets and Confidential Information to its employees with a need to know
such information, provided each such employee shall be obligated in
writing to comply with the terms and conditions of this Agreement.
Recipient will not use the Trade Secrets or the Confidential Information
of Owner or any portion thereof communicated, discussed, delivered or made
available by Owner to or received by Recipient with our the prior written
consent of Owner.
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5. Recipient acknowledges that its obligations under this Agreement with
regard to the Trade Secrets of Owner shall remain in effect for as long as
such information shall remain a Trade Secret under applicable law.
Recipient acknowledges that its obligations with regard to the
Confidential Information of Owner shall remain in effect for one (1) year
after its disclosure under this Agreement. The foregoing shall not apply
if and to the extent that information shall not be deemed proprietary and
each part shall have no obligation with respect to any information which:
(i.) is or falls into the public domain through no wrongful act of the
receiving party;
(ii.) is rightfully received from a third party without restriction and
without breach of this Agreement;
(iii.) is approved for release by written authorization of the
disclosing party;
(iv.) is disclosed pursuant to the requirement of a governmental agency
or operation of law; or
(v.) has been previously and independently developed by the receiving
party.
6. Recipient agrees to return to Owner, upon request by Owner, the Trade
Secrets and Confidential Information of Owner and all materials relating
thereto, disclosed by Owner to Recipient.
7. As used herein, "Trade Secrets" means information, including, but not
limited to, technical or non-technical data, formulas, patterns,
compilations, programs, devices, methods, techniques, drawings, processes,
financial data, financial plans, product plans or a list of actual or
potential customers or suppliers, computer source code and related
documentation, which: (a) derives economic value, actual or potential, for
its Owners, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use; and Co) is the subject of efforts that
are reasonable under the circumstances to maintain its secrecy.
"Confidential Information" means information, other than "Trade Secrets",
that is of value to its Owner and is treated as confidential, including,
but not limited to, licensing strategies, advertising campaigns,
information regarding executives and employees, the terms and conditions
of this Agreement, any information designated by Owner as Confidential
Information, and any data or information defined herein as a Trade Secret,
but which is determined by a court of competent jurisdiction not to rise
to be a trade secret under applicable law.
8. Recipient shall use its reasonable efforts to cooperate with Owner in
identifying and preventing unauthorized use, copying, or disclosure of the
Owner's Trade Secrets and Confidential Information.
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9. Recipient shall indemnify and hold harmless Owner and its officers and
employees from and against any and all damages losses, liabilities, costs
and expenses (including reasonable legal fees) arising in any way our of
use not in compliance with this Agreement or of any breach of the
confidentiality obligation hereunder by Recipient or its employees.
10. Each party hereto agrees that during the term of this Agreement and for a
period of one (1) year following termination or expiration of this
Agreement for any reason, neither party will solicit for employment,
attempt to employ or affirmatively assist any other person, entity or
enterprise ha employing or soliciting for employment any person employed
or hired by the other part.
11. If any provision or any part of any provision of the Agreement shall not
be valid for any reason, such provision shall be entirely severable from,
and shall have no effect upon, the remainder of this Agreement. Any such
invalid provision shall be subject to partial enforcement to the extent
necessary to protect the interests of the parties.
12. This Agreement shall inure to the benefit of, and be binding upon, any
successor in interest of the parties.
13. The intent of this Agreement is to provide the parties with all remedies
afforded to them under applicable law. Each party acknowledges and agrees
to the other party that monetary damages may be inadequate to compensate
Owner for any breach under this Agreement. Accordingly, Recipient agrees
that Owner will, in addition to any other remedies available to it at law
or equity, be entitled in injunctive relief to enforce the terms of this
Agreement.
14. This Agreement together with Exhibits hereto, if any, constitutes the
entire agreement of the parties with respect to the subject matter hereof,
and supersedes any prior agreements or understandings; whether oral or
written, between the parties with respect to such subject matter. No
amendment or waiver of this Agreement or any provision hereof shall be
effective unless ha a writing signed by both of the parties.
15. This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New Mexico, without giving effect
to its conflict of laws.
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58
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
caused this Agreement to be executed as of the date first written above.
MPOWER Solutions Inc. Customer
By: By: [Signature Illegible]
------------------------- ------------------------
(Authorized Signature) (Authorized Signature)
Title: Title: CEO
---------------------- ---------------------
Date: Date: 6/24/98
----------------------- ----------------------
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Exhibit 5
MPOWER IDENTIFIED PARTIES FOR NON-DISCLOSURE
In accordance with Section 12 of the Agreement, other references in the
Agreement, and certain other conditions regarding disaster backup and recovery,
Customer may not disclose MPOWER's Confidential Information to direct
competitors of MPOWER, including but not limited to, the companies listed below,
including such companies' parents, subsidiaries and affiliates, and such
parents' subsidiaries and affiliates:
Computer Science Corporation (CSC)
Electronic Data Systems Corporation (EDS)
ERISCO
AMISYS Managed Care In:formation Systems, Inc.
Health Systems Design, Inc. (HSD)
Health Systems Integration, Inc. (HSII)
GTE Health Systems
Resource Information Management Systems (RIMs)
HBO & Co.
TXEN
Xxxxx Systems
IDX
Sunquest
Paragon Systems
Electronic Healthcare Systems
The Medical Manager
Synertek
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