LICENSE AGREEMENT
THIS AGREEMENT, dated as of March 7, 1997 (the "Effective Date"), is by and
between Customer, a United Wisconsin Services, Inc. ("Licensee"), and
Electronic Data Systems Corporation, a Delaware corporation ("EDS").
WHEREAS, Licensee and EDS entered into an Agreement dated November 15, 1983,
as amended, for electronic data processing services (the "EDS Agreement"); and
WHEREAS, EDS currently provides Licensee access to Licensee's data for
Licensee's own use and manipulation; and
WHEREAS, EDS uses a proprietary software program to provide such data to
Licensee in a certain format and with certain efficiencies; and
WHEREAS, Licensee plans to migrate its claim processing business from EDS to
a third party vendor and wishes to continue receiving its data from EDS in
the manner in which it currently receives such data; and
WHEREAS, EDS is willing to provide such data to Licensee so long as the
propriety and confidential information of EDS is protected in accordance with
the terms and conditions set forth herein;
WHEREAS, Licensee desires to use the Licensed System Files (as defined in
Section I below) that are proprietary to EDS; and
WHEREAS, EDS is willing to license such Licensed System Files to Licensee on
the terms and conditions set forth herein;
NOW, THEREFORE, EDS and Licensee hereby agree as follows:
1. LICENSED SYSTEM FILES. As used in this Agreement, the term "Licensed
System Files" means the most current version, as of the Effective Date, of
the EDS proprietary data file access routines and data file record layouts
listed in Attachment A. Upon execution of this Agreement, EDS will provide
to Licensee electronic read-only access to the most current version of the
Licensed System Files for use by Licensee in accordance with and subject to
the terms and conditions of this Agreement.
2. GRANT OF LICENSE. As of the Effective Date, EDS grants to Licensee, and
Licensee accepts from EDS, a royalty-free, non-transferable, non-exclusive
license to use, and copy the Licensed System Files during the term of this
Agreement in accordance with and subject to the following restrictions:
1
(a) The Licensed System Files will be used by Licensee solely to support
the internal data processing operations of Licensee and of any direct
or indirect majority owned subsidiary of Licensee so long as such
entity remains a direct or indirect majority-owned subsidiary of
Licensee (collectively, the "Licensee Group").
(b) The Licensed System Files will be used by Licensee solely on equipment
and at facilities owned or leased by the Licensee Group and under the
control of the Licensee Group and will be operated solely by employees
of Licensee. Licensee will notify EDS in writing as to the number and
specific location of the copies of the Licensed System Files used by
Licensee hereunder prior to the commencement of each such use.
Licensee agrees that it will cause the Licensee Group to comply with
the terms and conditions of this Agreement.
(c) Licensee will not, and will not permit its employees to copy or
reproduce the Licensed System Files, or any component thereof, except
as may be necessary in connection with Licensee's use of the Licensed
System Files to support the internal data processing operations of the
Licensee Group in accordance with the terms of this Agreement.
(d) Licensee will maintain the Licensed System Files in strictest
confidence, will provide access to the Licensed System Files solely to
those Licensee employees requiring such access to support the internal
data processing operations of the Licensee Group, and will instruct
those Licensee employees that the Licensed. System Files, and all
components thereof, are proprietary to, and, as between the parties,
are considered to be the trade secrets of EDS.
(e) Licensee will not, and will not permit its employees or agents to,
sell, assign, lease, license, sublicense, or otherwise transfer or
provide the Licensed System Files, or any component thereof, right
therein, or access thereto, to any other party for any purpose.
(f) Licensee accepts full responsibility for the selection of the Licensed
System Files to achieve Licensee's desired results, the use of the
Licensed System Files, the results obtained from the Licensed System
Files, and all ongoing maintenance and support for the Licensed System
Files.
(g) Licensee will include on all components of the Licensed System Files
which it may have in its possession, or create, whatever type of
designation EDS may reasonably require from time to time to indicate
that such material is the proprietary property of EDS.
(h) In the event that any portion of the Licensed System Files should come
into the possession of unauthorized third parties as a result of a
breach by Licensee of this Agreement, Licensee will, at its expense,
use all reasonable efforts to retrieve such
2
material and, if unsuccessful in such efforts, will reimburse EDS for
all reasonable expenses incurred by EDS in attempting to retrieve
such materials.
(i) Licensee acknowledges and agrees that the Licensed System Files, and
all components thereof, are the valuable property and, as between the
parties, are considered to be trade secrets of EDS, that any violation
by Licensee of the provisions of this Section 2 would cause EDS
irreparable injury for which EDS would have no adequate remedy at law,
and that, in addition to any other remedies which EDS may have, EDS
will be entitled to preliminary and other injunctive relief against
any such violation.
Notwithstanding any provision to the contrary in this Agreement, the parties
agree that Licensee is the owner of all of its data embodied in the Licensed
System Files and that this Agreement shall not place any restrictions or
obligations on Licensee's use, distribution and manipulation of such data.
Licensee shall not be prevented from disclosing any or all portions of the
Licensed System Files if it is disclosed pursuant to any requirement of the
law of the United States or any state thereof, the order of any court or
governmental agency, or the rules or regulations of any governmental agency,
provided, however, that Licensee provides EDS with prompt written notice
thereof prior to disclosure.
3. WARRANTY DISCLAIMER. THERE ARE, AND EDS MAKES, NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING NO
REPRESENTATIONS OR WARRANTIES REGARDING THE MERCHANTABILITY, SUITABILITY,
ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE
DERIVED FROM THE USE OF ANY SERVICE OR FROM THE LICENSED SYSTEM FILES OR
FROM OTHER ITEMS PROVIDED UNDER THIS AGREEMENT. Further, EDS expressly
does not warrant that the Licensed System Files will conform to any
particular specifications, contain any specific functions, meet any of
Licensee's requirements or be free from defects. Licensee acknowledges and
agrees that EDS is providing the Licensed System Files on an "AS IS"
basis. Without limiting the foregoing, Licensee's acknowledges and agrees
that the Licensed System Files are not year 2000 compliant, and EDS has
no obligation to make the Licensed System Files year 2000 compliant.
4. ELECTRONIC READ-ONLY ACCESS CHARGES. Licensee will pay EDS for all incurred
computer usage associated with electronic read-only access Licensed System
Files on EDS owned or leased equipment. EDS charges for electronic access
to Licensed System Files will be paid on a quarterly basis at the computer
usage rates specified in Attachment B.
5. TAXES. Licensee will pay directly, or reimburse EDS for, all taxes,
assessments, duties, permits and fees, however designated, which are levied
upon this Agreement, the Licensed System Files, or computer usage, or their
use, excluding franchise taxes and taxes based on the net income of EDS.
3
6. TERMINATION. This Agreement may be terminated as follows:
(a) If either party defaults in the performance of any of its obligations
hereunder and if such default continues for more than ten days after
written notice specifying the default is given to the defaulting
party, then the other party may, by giving the defaulting party
written notice thereof, terminate this Agreement as of a date
specified in such notice of termination.
(b) If Licensee ceases to carry on its business, a receiver or similar
officer is appointed for Licensee, Licensee makes an assignment for
the benefit of, or a composition with, its creditors, or another
arrangement of similar import, or if proceedings under any bankruptcy
or insolvency law are commenced by or against Licensee, then EDS may,
by giving Licensee written notice thereof, terminate this Agreement as
of a date specified in such notice of termination.
(c) If Licensee ceases to receive data processing services from EDS, such
as with the termination of services under the EDS Agreement, and all
Licensed System Files have been converted from the proprietary format
of the EDS software program, then EDS may, by giving Licensee prior
written notice thereof, terminate this Agreement as of a date
specified in such notice of termination.
(d) Unless previously terminated, this Agreement will terminate on
December 31, 1999, provided, however, that Licensee will have the
option to extend the term of this Agreement for up to two additional
terms of two years each by providing EDS with written notice at least
90 days prior to December 31, 1999, or the end of the first additional
two year term, as the case may be.
Upon termination of this Agreement for any reason, then, in addition to
any other rights which either party may have, Licensee will promptly
return to EDS all copies of the Licensed System Files, and all
components thereof, in Licensee's possession or under Licensee's control
and will completely erase the Licensed System Files, and all components
thereof, from Licensee's computer systems. Upon EDS' request, Licensee
will execute and deliver to EDS a written certification that Licensee
has complied with the provisions of this Section 6 and no longer retains
any material relating to the Licensed System Files or any component
thereof.
7. INFRINGEMENT INDEMNITY. EDS will, at its own expense, defend any action
brought against Licensee to the extent such action is based on a claim that
the Licensed System Files, used within the scope of the license granted
herein, infringes a copyright enforceable under United States law,
infringes a patent granted under United States law, or constitutes an
unlawful disclosure, use or misappropriation of another party's trade
secret or similar property right. EDS will bear the expense of such
defense and pay any damages and
4
attorneys fees finally awarded by a court of competent jurisdiction
which are attributable to such claim, provided that Licensee notifies
EDS promptly in writing of the claim and that Licensee allows EDS to
fully direct the defense or settlement of such claim. If any such
action is brought, or in the opinion of EDS is likely to be brought,
then EDS may, at its election: (i) obtain for Licensee the right to
continue using the Licensed System Files; (ii) replace or modify the
Licensed System Files so that they become noninfringing; or (iii) if EDS
determines that such remedies are not reasonably available, accept
return of the Licensed System Files and terminate this Agreement. In
the event that EDS terminates this Agreement under this Section, nothing
in this Agreement will prevent Licensee from entering into an agreement
with the applicable third party to use the system that such third party
claims the use of the Licensed System Files was infringing. EDS shall
have no obligation under this Section if the alleged infringement or
violation is based upon the use of the Licensed System Files in
combination with other software, equipment or documentation not
furnished by EDS. EDS will not be responsible for any settlement or
compromise made without its consent. This Section states EDS' entire
obligation regarding infringement.
8. LICENSEE INDEMNITY. Licensee will indemnify, defend and hold harmless EDS
from any liability, loss, or damage to persons or property arising out of a
third party claim based on Licensee's possession, or use of the Licensed
System Files or the fault or negligence of Licensee, its employees or
agents, and will indemnify EDS from any cost or expense incurred by EDS
with respect to any such liability, loss, or damage.
9. LIMITATION OF SUPPORT, Except as provided in Section I hereof, EDS will
have no liability to provide licensee with staffing resources related to
this Agreement as of a date specified in such notice of termination.
10. LIMITATION OF LIABILITY. Except as provided in Section 7 hereof, EDS
will have no liability to Licensee for any claims relating to this
Agreement, the Licensed System Files, or EDS' performance hereunder,
whether in contract or in tort, including negligence, and Licensee's
exclusive remedy with respect to any such claim will be to terminate
this Agreement as provided in Section 6 hereof. Without limiting the
foregoing, EDS will have no liability for any cause of action against
EDS which accrued more than two years prior to the filing of a suit
alleging such cause of action.
11. MISCELLANEOUS.
(a) This Agreement will be binding on the parties hereto and their
successors and assigns, but Licensee may not assign this Agreement
without the prior written consent of EDS, which consent will not be
unreasonably withheld.
(b) Wherever under this Agreement one party is required to give notice to
the other, such notice will be deemed given if actually delivered or
if mailed by United
5
States mail, registered or certified mail, return receipt requested,
and postage prepaid, and addressed as follows:
In the case of EDS:
Electronic Data Systems Corporation
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Attention of the President
In the case of Licensee:
United Wisconsin Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Post Office Box 2025
Xxxxxxxxx, Xxxxxxxxx 00000
Attention of the President
Either party may at any time changes its address for notification
purposes by mailing a notice stating the change and setting forth
the new address.
(c) If any provision of this Agreement is declared or found to be illegal,
unenforceable or void, then both parties will be relieved of all
obligations arising under such provision, but if the remainder of this
Agreement is not affected by such declaration or finding, then each
provision not so affected will be enforced to the extent permitted by
law.
(d) No delay or omission by either party hereto to exercise any right or
power accruing upon any noncompliance or default by the other party
with respect to any of the terms of this Agreement will impair any
such right or power or be construed to be a waiver thereof. A waiver
by either of the parties hereto of any of the covenants, conditions,
or agreements to be performed by the other will not be construed to be
a waiver of any succeeding breach thereof or of any other covenant,
condition or agreement herein contained.
(e) All remedies provided for in this Agreement will be cumulative and in
addition to and not in lieu of any other remedies available to either
party at law, in equity or otherwise.
(f) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof. There are no
understandings or agreements relative hereto which are not fully
expressed herein and no change, waiver or discharge hereof will be
valid unless in writing and executed by the party against which
such change, waiver or discharge is sought to be enforced.
6
(g) This Agreement will be governed by and construed in accordance with
the laws of the State of Wisconsin.
IN WITNESS WHEREOF, EDS and Licensee have caused this Agreement to be signed
and delivered by their duly authorized representatives, all as of the
Effective Date.
ELECTRONIC DATA SYSTEMS UNITED WISCONSIN SERVICES, INC.
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
-------------------------------- ----------------------------------
Printed Printed
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
------------------------------ --------------------------------
Date: March 6, 1997 Date: March 7, 1997
------------------------------ --------------------------------
7
FIRST AMENDMENT
THIS FIRST AMENDMENT TO THE AGREEMENT, dated as of July 16, 1997 (the
"Effective Date"), is by and between Customer, a United Wisconsin Services,
Inc; ("Licensee"), and Electronic Data Systems Corporation, a Delaware
corporation ("EDS").
WHEREAS, Licensee and EDS entered into a License Agreement dated March 7,
1997, for electronic data processing services (the "EDS Agreement"); and
WHEREAS, EDS and the Licensee wish to amend that;
NOW, THEREFORE, EDS and Licensee hereby agree as follows:
1. Attachment A of the Agreement is amended to include the following:
EDS PROPRIETARY DATA FILES AND RECORD LAYOUTS: MEMBERSHIP
MEMBERSHIP (MODEL OFFICE)
Group master
Subscriber master
Document Control System (DCS) transaction file
MEMBERSHIP (PRODUCTION)
Group master
Subscriber master
Document Control System (DCS) transaction file
EDS PROPRIETARY DATA FILES AND RECORD LAYOUTS: CLAIMS
CLAIMS (MODEL OFFICE)
Daily Pend
GENO Tables
ITS - DF (Home plan aid extracted )
ITS - DF (Host received via NDM)
ITS - SF (Home SF incoming via NDM)
ITS - SF (Outgoing, Wisconsin is host)
ITS - SF (Outgoing adjustments, Wisconsin is host)
ITS - RF (Home Authorized/Denied RF incoming via NDM)
ITS - RF (Incoming via NDM)
ITS - NF (Incoming NF's from NDM)
ITS - NF (Outgoing NF's)
ITS - Summaries data bases
ITS - Home Plan Aid Data Manager
Message Codes
Page 1
Condition Codes
Diagnosis Codes
Deductible Maximum File
Referral file
Coordination of Benefits Comment
HXAR2001 Error Report
CLAIMS (PRODUCTION)
Batch Activation
Daily Pend
Purge Pend
GENO Tables
ITS - DF (Home plan aid extracted )
ITS - DF (Host received via NDM)
ITS - SF (Home SF received via NDM, eventually fed to reformatter)
ITS - SF (Wisconsin is Host SF sent via NDM)
ITS - SF (outgoing adjustments, Wisconsin is host)
ITS - RF (Home Authorized/Denied RF received via NDM)
ITS -RF (CFA response file report and RF records received via NDM)
ITS - NF (Incoming NF's from NDM)
ITS - NF (Outgoing NF's)
ITS - Summaries data bases
ITS - HPA (Home Plan Aid Data Manager)
Message Codes
Condition Codes
EOB Codes (Message file)
Reject Messages (Severity file)
NASCO TRLOG files (To NASCO)
Diagnosis Codes
Deductible Maximum File
Referral file
Coordination of Benefits comment
NASCO Provider File Feed
Customer Service CCS Inquiry
Benefits
Provider Extract
Procedure Master
Pricing: Level 1
Pricing: Xxxxx 0
Xxxxxxx: Xxxxx 0
Xxxx Xxxxxxx Master
Open Claims A/Rs
Quarterly IL Ameritech Provider File
Page 2
EDS PROPRIETARY DATA FILES AND RECORD LAYOUTS: PLAN SERVICES
PLAN SERVICES (PRODUCTION)
Fixed Assets
Asset History
Vendor
Invoices
A/P (trade vendor)
Broker: Accrual
Broker File (name)
Broker: On-line backup
Broker Master Input
Broker: IBP Variables
Broker: Pooling Records
Broker: Group/LOB with premium updates
Broker: Premium History
Broker: Tax IDs
Broker: Commission History
Cost Plus: Date File
Cost Plus: Extracted Claims File
Cost Plus: Detail History
Cost Plus: Life Time History
Cost Plus: 3 Month History
Cost Plus: Detail ID Records
Cost Plus: Backup
U/A - Weekly
U/A - Monthly
Xxxxxx: P Records
Bridge Tables
Cost Allocation: A Records
Capitation History
Capitation Monthly
Admin File
2. All terms and conditions of the Agreement not specifically amended herein
shall remain in full force and effect.
Page 3
IN WITNESS WHEREOF, EDS and the Licensee have caused this FIRST AMENDMENT to
be signed and delivered by their duly authorized representatives, all as of
the Effective Date.
ELECTRONIC DATA SYSTEMS UNITED WISCONSIN SERVICES, INC.
CORPORATION
By: By:
-------------------------------- ---------------------------------
Printed Printed
Name: Name:
------------------------------ -------------------------------
Date: Date:
------------------------------ -------------------------------
Page 4
