EXHIBIT 10(i)
SOFTWARE LICENSE, DEVELOPMENT SERVICES AND MAINTENANCE AGREEMENT
By and Between
Corporate Systems Ltd.
and
Hartford Fire Insurance Company
* Certain portions of this contract have been redacted for confidentiality.
Redacted portions are marked [ ]. The registrant has filed the redacted
portions with the SEC as required pursuant to Rule 406.
TABLE OF CONTENTS
Section 1. Definitions
Section 2. Software License
Section 3. [THIS SECTION INTENTIONALLY OMITTED]
Section 4. Access, Telecommunication System Usage and Storage of Hartford
Data and Information
Section 5. Software Development Services
Section 6. Report Services
Section 7. Maintenance Services
Section 8. Training Services
Section 9. Other Services
Section 10. Personnel
Section 11. Documentation
Section 12. Warranties
Section 13. Liability and Indemnities
Section 14. Source Code
Section 15. Intellectual Property Indemnity
Section 16. Confidentiality
Section 17. Fees, Payment, Charges and Taxes
Section 18. Auditing
Section 19. Term and Termination
Section 20. Relationship Between the Parties
Section 21. Assignment
Section 22. General
SCHEDULES
Schedule A. Authorized Hardware, Operating System and Interface Software
Schedule B. Description and Specifications for the Customizations
Schedule C. Software Purchase Pricing Options
Schedule D. Description and Specifications for the MCM System
Schedule E. Third Party Software
Schedule F. [THIS SECTION INTENTIONALLY OMITTED]
Schedule G. [THIS SECTION INTENTIONALLY OMITTED]
Schedule H. [THIS SECTION INTENTIONALLY OMITTED]
Schedule I. Hartford Code Development Guidelines
Schedule J. Service Level Agreement
Schedule K. Report Schedule
Schedule L. Preferred Provider Organizations
Schedule M. CS Nondisclosure Agreement
Schedule N. Hartford Nondisclosure Agreement
Schedule O. Payment Schedule
Schedule P. Disaster Recovery Plan
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AGREEMENT effective as of the 1st day of January, 1994 by and between
Corporate Systems Ltd. ("CS"), a limited partnership having an address at
0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 and Hartford Fire Insurance Company
("Hartford"), a Connecticut Corporation having an address at 000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
WITNESSETH
WHEREAS, Hartford wishes to license certain data processing software from CS
and to obtain certain services related to such software; and
WHEREAS, CS wishes to license such software and to provide related services;
and
WHEREAS, CS will install CS's proprietary software as well as software
developed by CS for Hartford on computers in the CS Computer Facility, will
maintain Hartford's data base on said computers in the CS Computer Facility
as well as at other sites as specified in Section 4 below, and will provide
Hartford, as specified in this Agreement, with access via telecommunications
to such software.
NOW, THEREFORE, in consideration of the mutual covenants and agreement herein
contained and subject to the terms and conditions hereinafter set forth,
Hartford and CS hereby agree as follows:
1.0 DEFINITIONS
1.1 As used in this Agreement, the terms set forth in this Section 1 shall
have those meanings indicated below:
1.2 Access - Shall mean telecommunications access to the MCM System.
1.3 Acceptance Test - As described in Section 5.8 below.
1.4 Additions - As described in Section 5.3 below.
1.5 Agreement This Software License, Development Services and Maintenance
Agreement
1.6 Application Crisis - Any production problem that prevents Hartford from
receiving daily data feeds within four (4) hours or prevents Hartford
from accessing on-line data for any length of time that materially and
adversely affects Hartford.
1.7 Authorized Hardware, Operating Systems and Interface Software - As
specified in Schedule A, which is attached hereto and incorporated
herein by reference.
1.8 CS Computer Facility - CS's computer facility in Texas (or such other
locations where it may move or add facilities) where the MCM System is
or will be installed and to which Hartford shall have full access as
described herein for processing purposes.
1.9 [THIS SECTION INTENTIONALLY OMITTED]
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1.10 Custom Programming - The software programming developed by CS for
Hartford in accordance with Hartford's user requirements and as
described in the Specifications in Schedule B which is attached hereto
and incorporated herein by reference and as such Schedule B may be
changed from time to time with Supplements upon the mutual written
agreement of the Parties.
1.11 Customizations - All Custom Programming (together with all related
Documentation and an" portion or copies thereof) related to the MCM
System as specified in Section 5 below.
1.12 Development Services - As described in Section 5 below.
1.13 Documentation - All materials which are necessary to instruct or assist
users, operators and systems personnel in the installation, operations,
use and modification of the MCM System and the Customizations,
including but not limited to such materials as operating manuals,
program manuals, systems manuals and users manuals. All Documentation
shall include information on the functionality of each and every
Customization and new Release and of the interrelationship of each such
Customization and Release to the rest of the MCM System and process. CS
WILL PROVIDE HARTFORD ON A QUARTERLY BASIS WITH DOCUMENTATION WHICH MAY
BE NECESSARY FOR HARTFORD'S USE OF THE MCM SYSTEM AND THE CUSTOMIZATIONS
REFLECTING THE COLLECTION OF ALL DAILY ENHANCEMENTS MADE BY CS.
1.14 [THIS SECTION INTENTIONALLY OMITTED]
1.15 Enhancements - Any modification, change, correction, or update of the
MCM System developed by CS on a daily basis, except for Customizations
and Third Pay Software and Enhancements thereto. CS shall deliver to
Hartford Documentation for such Enhancements on a quarterly basis.
1.16 Hartford - Hartford Fire Insurance Company and, unless it refers to the
party to this Agreement which may exercise discretion in any matter
arising under this Agreement, all its corporate affiliates and
subsidiaries.
1.17 Integrated Customizations - Customizations ordered by Hartford as part
of Development Services which are integrated by CS into the MCM System
and are provided as part of an Enhancement or Release to other CS
customers.
1.18 MCM System - The CS software system operating on CS's mainframe
computer in Amarillo, Texas, or such other place where CS may locate
its mainframe computer, described in Schedule D, which is attached
hereto and incorporated herein by reference, and Claim Administration
System (CAS) Account Design and Special Report modules essential to the
execution and use of the MCM System as well as such Third Party
Software as are listed and added to from time to time in Schedule E,
which is attached hereto and incorporated herein by reference. The MCM
System shall include all Enhancements thereto and all Releases thereof
as well as all related Documentation.
1.19 Medical Management Centers- One or more ITT Hartford processing facilities
where ITT Hartford employees use the MCM System to process Hartford claims.
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1.20 Nonconformance - A variance, due to a programming error, in any
part of the MCM System or the Custom Programming from the related
Specifications.
1.21 Object Code - The software in a form resulting from the
translation or processing of the machine readable portions of the
Source Code by a computer into machine language or intermediate
code, and which is thus in a form that would not be convenient for
human understanding of the program logic of the software, but
which is appropriate for its execution or interpretation by a
computer.
1.22 Parties - CS and Hartford.
1.23 PPO - Preferred Provider Organization.
1.24 Project - Custom Programming done by CS for Hartford pursuant to
this Agreement on a defined project basis as specified in
Supplements to Schedule B.
1.25 Release - A System upgrade such as CICS, MVS, security, operating
platform, or environment.
1.26 Reports - Reports generated by using the computer software
capability developed by CS at Hartford's request.
1.27 Section - The numbered Section referred to and all numbered
subsections of said Section. (For example, Section 2.2 includes
Section 2.2.1.)
1.28 Services - Any and all services to be performed by CS hereunder,
including but not limited to services performed pursuant to
Section 4, 5, 6, 7 and 8 below.
1.29 Source Code - Both machine readable and human readable copies of
all software covered under this Agreement consisting of
instructions to be executed upon a computer in the language used
by its programmers (i.e., prior to compilation or assembly) in a
form in which the program logic of the software is deducible by a
human being, fully (to the extent available to CS in tangible -
human or machine readable - form) commented, and including all
related flow diagrams and all other documentation and manuals
available to CS in tangible - human or machine readable - form
which would allow Hartford to properly effect modifications and
support for the MCM System.
1.30 Specifications - Detailed descriptions of the MCM System and the
Customizations.
1.31 Supplement - An instrument which incorporates this Agreement
executed by Hartford and CS.
1.32 Third Party Software - All third party software and data bases,
including but not limited to Enhancements thereto and all Releases
thereof as well as all related Documentation, which have been
approved by Hartford and will be used to carry out the
requirements described in this Agreement. All such Third Party
Software products are specified in Schedule E.
1.33 [THIS SECTION INTENTIONALLY OMITTED]
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2.0 SOFTWARE LICENSE
2.1 CS hereby grants Hartford and Hartford hereby accepts subject to
the terms and conditions of this Agreement a non-exclusive,
non-transferable perpetual license to use and access the MCM System
in the ordinary course of its insurance, insurance administration,
including but not limited to third party administration, claims
services, and insurance services businesses, or such other
insurance businesses that may be mandated by state and/or federal
law, but not otherwise.
2.2 OPTION TO PURCHASE
2.2.1 Hartford shall have the option and the right to exercise said
option at any time to purchase one (l) copy of the Source Code and
all Documentation together with one (1) copy of the Object Code to
the MCM System from CS. The purchase price will be [ ] with CS
for maintenance of the System [ ] contracting for maintenance of
the System by CS. The software purchase pricing options are
specifically defined in Schedule C.
2.2.2 In the event that Hartford exercises said option, CS will assist
Hartford (at CS's usual time and expense rates) as reasonably
necessary in such a transition, including but not limited to using
its best efforts to: (i) continue to provide access to the MCM
System at the CS Computer Facility until such time as Hartford is
processing all claims on the MCM System at Hartford's site and (ii)
facilitate and assist Hartford in obtaining sublicenses (at
Hartford's expense) from vendors to all Third Party Software
specified in Schedule E and the Operating and Interface Software
specified in Schedule A.
3.0 [THIS SECTION INTENTIONALLY OMITTED]
4.0 HARTFORD DIRECT ACCESS TO MCM SYSTEM
4.1 CS will provide Hartford, at all times while this Agreement is in
effect, at Hartford's Home Office, Medical Management Centers,
participating Hartford claim offices and any other sites that
Hartford designates with remote access to CS's data processing
system, in order that Hartford may:
(a) view the detailed claim information and the MCM System review
process, and
(b) allow Hartford's nurse auditors, cost containment coordinators
and/or claim processing supervisors and other individuals so
designated by Hartford to communicate with Hartford's Medical
Management Centers via on-line diary system as is currently
being utilized.
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[ ] Material redacted for confidentiality
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4.1.1 CS acknowledges that the MCM System and all Customizations
will be installed on computers at the CS Computer Facility,
and that Hartford, as specified in Section 4.1.2 below, will
have complete access from any compatible computer system (as
specified in Schedule A) in the United States and Canada to
fully use the MCM System and all Customizations, subject to
CS's reasonable security requirements.
4.1.2 CS will provide Hartford with telecommunications access to any CS
system that Hartford requires pursuant to the terms and conditions
of this contract. In the event that Hartford should request that CS
put in a telecommunications line, there will be an additional
reasonable charge agreed upon by both Parties in advance. Hartford
reserves the right to provide at its own expense private leased
line facilities connecting to and communicating with CS systems.
CS will provide space, power and environmental requirements for
Hartford's telecommunications equipment at the CS location.
CS will allow vendors who have maintenance contracts with Hartford
access to Hartford equipment located at CS sites during hours of
operation.
4.2 Hartford and CS will be jointly responsible for establishing and
maintaining the electronic interfaces necessary for the transmission
of required data, including but not limited to payment record and
claim rates data between Hartford's claim system and the MCM System.
These interfaces and the joint capacity to transmit and receive the
data to support the medical xxxx processing activities will allow
for: (i) the daily transmission of basic claim data elements from
Hartford's systems to the CS data-processing system and (ii) the
daily transmission of the completed medical payment transactions
from CS's data-processing system to Hartford's claim systems.
4.3 CS shall maintain the appropriate computer files of all
information and data transmitted to the CS Computer Facility
by Hartford. This will not require CS to retain data
transmission or tape files after such data has been entered
into the MCM System. It is expressly understood that all such
data transmitted by Hartford and maintained and stored by CS
shall remain the exclusive property of Hartford.
4.3.1 CS acknowledges that the data processed on the MCM System is
extremely valuable to Hartford. Accordingly, CS agrees to
follow the provisions in Section 4.7.1 below for two (2) daily
back-ups of Hartford's data, one to be kept at the CS Computer
Facility and the other at an off-premises location remote from
the CS Computer Facility.
4.4 CS agrees that it will not permit access to Hartford data by
any person or entity other than Hartford or to such other
persons or entities who have been approved in advance by
Hartford.
4.5 [THIS SECTION IN INTENTIONALLY OMITTED]
4.6 ON-GOING HARTFORD OBLIGATIONS
4.6.1 All Hartford claim offices using the MCM System will provide
CS with a daily update consisting of new claim additions and
existing claim transactions, including but not limited to
changes and deletions.
4.6.2 Hartford will determine compensability of claims and provide
final authorization for claim payment.
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4.7 DISASTER RECOVERY PLAN
4.7.1 CS shall make available a disaster recovery program that will
allow for reinstatement of full production capacity as
specified in this Section 4.7. CS represents and warrants that
no later than March 1, 1994 it will have established a
disaster recovery plan, in accordance with the provisions
specified in this Section 4.7 ("Disaster Recovery Plan") in
the event that one or more disasters should prevent the CS
Computer Facility from processing Hartford's data on the MCM
System. A copy of the Disaster Recovery Plan will be attached
hereto as Schedule P, which will be incorporated herein by
reference. Hartford shall have the right to approve any
Disaster Recovery Plan so that it as a minimum reflects the
terms of this Section 4.7. In the event that the Disaster
Recovery Plan does not reflect the terms of this Section 4.7,
Hartford shall have the right to cancel the Agreement. The
Parties shall mutually agree in advance to the cost of such
Disaster Plan, but if Hartford does not agree with the cost,
Hartford shall have the right to cancel this Agreement. In
order to safeguard Hartford's data and information on the MCM
System, CS represents and warrants that at a minimum CS shall
take the following back-up and recovery measures in order to
permit recovery and processing of Hartford's data on the MCM
System in the event of destruction of normal processing files
and computers at the CS Computer Facility:
(i) CS shall maintain daily back-up computer tape files of
Hartford's historical database stored in a safe area at the
CS Computer Facility.
(ii) In addition to the daily back-up computer tape files at the CS
Computer Facility, CS shall prepare daily back-up computer
tape files which shall be delivered on a daily basis to an
off-premises location for safe-keeping. Hartford shall have
the right to approve such off-premises location.
(iii) WARM SITE. CS shall have a continuous contractual agreement
with a reliable entity in the business of providing a computer
"Warm Site" where back-up computer tape files can be processed
with remote telecommunications access to Hartford staff at any
location in the United States in the event that the CS
Computer Facility is damaged by such occurrences as tornados
or storms and therefore unable to process data on the MCM
System. Hartford shall have the right to review such Warm Site
agreement and to approve the Warm Site vendor.
(a) TOTAL FAILURE. In the event that the CS Computer
Facility is totally disabled and such disability causes
the MCM System not to be accessible for the purpose of
processing Hartford business ("Total Failure"), as soon
as CS knows or reasonably should have known of such
Total Failure or such Total Failure has existed for
twenty-four (24) hours, whichever is the shorter time
period, CS must install the MCM System and all Hartford
data files at the Warm Site with the result that
Hartford processing on the MCM System is fully
operational in accordance with the approved Disaster
Recovery Plan within forty-eight (48) hours, unless
Hartford agrees in writing to another plan.
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(b) PARTIAL FAILURE. In the event that the CS Computer
Facility is partially disabled and such disability
causes the MCM System to be partially inaccessible for
the purpose of processing Hartford business ("Partial
Failure"), as soon as CS knows or reasonably should have
known of such Partial Failure or such Partial Failure
has existed for forty-eight (48) hours, whichever is the
shorter time period, CS must install the MCM System and
all Hartford data files at the Warm Site with the result
that Hartford processing on the MCM System is fully
operational in accordance with the approved Disaster
Recovery Plan within forty-eight (48) hours, unless
Hartford agrees in writing to another plan.
4.7.2 CS shall make available to Hartford for Hartford's
review the Disaster Recovery Plan and procedures in
effect. Furthermore, Hartford may inspect the CS
Computer Facility as well as the off-site storage
facility upon demand. Any material changes to the
Disaster Recover Plan, including but not limited to a
change in the off-site storage center or in the backup
procedures, will require the prior written consent of
Hartford which consent will not be unreasonably withheld.
5.0 SOFTWARE DEVELOPMENT AGREEMENT
5.1 CS agrees to provide Development Services, at Hartford's cost as
specified in Schedule O, developing for Hartford the following
types of Custom Programming: (i) software to enhance or modify the
MCM System which will be integrated with the MCM System
("Integrated Customizations"); and (ii) stand-alone software
("Stand-Alone Customizations"). Said Development Services shall
include, but not be limited to, consulting in identifying
Customizations to meet Hartford's needs, software development and
implementation activities with respect to such identified
Customizations, and software to meet Hartford reporting needs.
5.2 Hartford shall provide CS with Hartford's user requirement
specifications for the Custom Programming which shall be included
as part of Schedule B. CS shall analyze such Specifications and
respond to Hartford with a written plan within a reasonable time
period as mutually agreed to by CS and Hartford. If the complexity
of the proposed Customization allows, the design specifications
(the rough documentation from a technical perspective) will be
delivered at the same time. Stages and tasks in the development
and implementation of the specifications and associated costs,
if any, with respect to each Customization, together with time
frames in which such stages and tasks are to be completed will
be established jointly by CS and Hartford and will be set forth
from time to time in Supplements to Schedule B. The software
Development Services to develop Customizations covered in each
such Supplement shall be referred to as a Project. The Parties
shall agree in advance of commencement of work on any one Project
whether the Customizations shall be free of charge or subject
to a charge and shall specify this information in the applicable
Supplement to Schedule B for such Project. CS will routinely
keep Hartford advised of the status of the Project while being
programmed and will notify Hartford when the Customization is
ready for testing. After the completion of all testing and
correction the parties will agree on a time frame for installation
of the Customization. CS will complete documentation of the
Customization and deliver it to Hartford prior to such
installation. CS agrees not to commence work on any Project
until such time as Hartford has given prior written approval
of both the time schedule as well as any associated costs as
specified in Schedule O.
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5.3 In the event that Hartford requests changes or additions to
earlier agreed-upon Specifications ("Additions"), CS shall analyze
such requests and respond to Hartford, within a reasonable time
period as mutually agreed to by CS and Hartford, with a written
plan, including stages and tasks in the development and
implementation of such requested Additions and the associated
costs together with time frames in which such stages and tasks are
to be completed. If Hartford and CS agree to such Additions and
associated additional costs, if any, the Specifications for such
Additions, including time frames, will become part of the
Supplement to Schedule B for such Customizations.
5.4 CS shall develop the Custom Programming in accordance with
Hartford's Source Code Development Guidelines specified in
Schedule I, which is attached hereto and incorporated herein by
reference.
5.5 CS shall design and develop all Customizations to conform to the
Minimum MCM System Requirements specified in Schedule D unless
waived by Hartford in a particular instance.
5.6 OWNERSHIP OF CUSTOMIZATIONS. Prior to CS starting work on any
Customization, the Parties will discuss whether such requested
Custom Programming shall constitute a Integrated Customization or
a Stand-Alone Customization. If Hartford decides that a
Customization shall be a Stand-Alone Customization, Hartford shall
have all right, title and interest in such Customization. CS
agrees not to provide any Stand-Alone Customizations to any other
CS customers unless CS and Hartford have agreed otherwise in
writing.
5.7 CS shall make such Integrated Customizations and Stand-Alone
Customizations accessible to Hartford from the CS Computer
Facility. In addition, CS shall deliver to Hartford as soon as
available one (1) copy of the Source Code and all Documentation
for all Stand-Alone Customizations which will run as a discrete
module not a part of the MCM System. CS shall have no obligation
to provide Hartford with the Source Code to any Hartford Specific
Integrated Customization, except as provided in Section 14 below.
5.8 ACCEPTANCE TESTING. CS agrees that as part of the Development
Services, CS shall thoroughly test each and every Customization to
assure that such Customization: (i) performs in accordance with
the Specifications and the standards in the Service Level
Agreement set forth in Schedule J; (ii) does not adversely affect
the capabilities of the current accepted Release of the MCM
System; and (iii) as an individual program and together with the
current accepted Release of the MCM System functions as a totality
and operates with internal consistency. After CS has conducted
such tests and corrected any Nonconformances, Hartford shall have
the option to acceptance test all Customizations.
5.8.1 ACCEPTANCE TESTING OF STAND-ALONE CUSTOMIZATIONS. Upon Hartford's
receipt of notice from CS that a StandAlone Customization is ready
to be tested, Hartford shall have the option to test the
Stand-Alone Customization together with CS at the CS Computer
Facility, using all related Documentation, in accordance with the
standards set forth in this Section 5.8.1. Within ten (10) days of
Hartford's receipt of such notice from CS, the Parties shall
perform the Acceptance Test on Authorized Hardware, using Hartford
data and test cases to ensure that the Stand-Alone Customization
is complete and that it performs in accordance with the
Specifications and produces the expected results. If, at such
test, Hartford discovers that the
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Stand-Alone Customization does not perform in accordance with the
Specifications, Hartford shall notify CS. Hartford will provide a
written evaluation of the Stand-Alone Customization with the
results of such Acceptance Test. The necessary changes to assure
that the Stand-Alone Customization performs in accordance with the
Specifications shall be prioritized by both Parties and shall be
completed in accordance with a mutually agreed-upon time schedule
which shall be set forth in the Supplement to Schedule B which
covers the particular Project. After its receipt of the corrected
Customization, together with all necessary Documentation,
Hartford, in accordance with the time frames in Schedule B, shall
re-conduct the Acceptance Test either at the CS Computer Facility
or from any Hartford location to the CS Computer Facility via
telecommunications, as the Parties shall mutually agree. Such
Customization shall not be considered accepted by Hartford until
signed off by Hartford which will occur: (i) if, in Hartford's
sole written opinion, no changes are necessary, (ii) if the
necessary changes, as determined by Hartford, are made between the
time reported and the agreed upon sign-off time, or (iii) if the
necessary changes, as determined by Hartford, are scheduled, with
Hartford's prior approval, for a later time.
5.8.2 ACCEPTANCE TESTING OF INTEGRATED CUSTOMIZATIONS. Upon Hartford's
receipt of notice from CS that an Integrated Customization is
ready to be tested, Hartford shall have the option to test the
Integrated Customization together with CS at the CS Computer
Facility, in accordance with the Documentation within ten (10)
days of receipt of notice from CS. The test of such Integrated
Customization shall be in accordance with the standards set forth
in Section 5.8.1 above and in this Section 5.8.2 to ensure that
such Integrated Customization performs in accordance with the
Specifications and meets the following Performance Criteria: (i)
it does not adversely affect the capabilities of the current
accepted Release of the MCM System; and (ii) that the Integrated
Customization, as an individual program and together with the
current accepted Release of the MCM System functions as a
totality and performs in accordance with the Specifications in
Schedule B and operates with internal consistency. If, at such
test, Hartford discovers that the Integrated Customization does
not perform in accordance with the Specifications and/or does not
meet the Performance Criteria, Hartford shall notify CS. Hartford
will provide a written evaluation of the Integrated Customization
with the results of such Acceptance Test. The necessary changes
to assure that the Release, which includes the Integrated
Customization, performs in accordance with the Specifications and
the Performance Criteria shall be prioritized by both Parties and
shall be completed in accordance with a mutually agreed-upon time
schedule set forth in the Supplement to Schedule B for such
Project. After its receipt of the corrected Integrated
Customization, and the current Release of the MCM System if
appropriate, together with all necessary Documentation, Hartford,
in accordance with the time frames in the Supplement to Schedule B
for such Project, shall re-conduct the Acceptance Test either
at the CS Computer Facility or from any Hartford location to the
CS Computer Facility via telecommunications, as the Parties shall
mutually agree. Such Integated Customization shall not be
considered accepted by Hartford until signed off by Hartford
which will occur: (i) if, in Hartford's sole written opinion, no
changes are necessary, (ii) if the necessary changes, as
determined by Hartford, are made between the time reported and
the agreed upon sign-off time, or (iii) if the necessary changes,
as determined by Hartford, are scheduled, with Hartford's prior
approval, for a later time.
5.8.3 ON-GOING ACCEPTANCE TESTING OF EACH RELEASE. With respect to each
and every new Release which Hartford exercises its option to
acceptance test, Hartford shall have thirty (30) days (unless a
longer time period has been mutually agreed to by the Parties) to
test such Release, either at the CS Computer Facility or from a
Hartford location to the CS Computer Facility via
telecommunications, in accordance with the standards for the
Acceptance Tests set forth in Section 5.8.1 and 5.8.2 and the
following Performance Criteria: (i) All capabilities are carried
forward from the prior accepted Release; (ii) there are no
regressions from such prior accepted Release and (iii) that the
Release, as a totality and with components, performs in
accordance with the Specifications in Schedule B and operates with
internal consistency. If, during this period, Hartford discovers
that such new Release does not meet said Performance Criteria,
Hartford shall notify CS. Hartford will provide a written
evaluation of such Release to CS with the results of such
Acceptance Test. The necessary changes to assure that this
Release meets said Acceptance Test standards and said Performance
Criteria shall be prioritized by both Parties and shall be
completed within fifteen (15) days (unless a longer time period
has been mutually agreed upon by both Parties). After receipt of
the corrected Release and all related Documentation, Hartford
shall have ten (10) days (unless a longer time period has been
mutually agreed upon by both Parties) to conduct the Acceptance
Test. Any such Release shall not be considered accepted by
Hartford until signed off by Hartford which will occur: (i) if, in
Hartford's sole written opinion, no changes are necessary, (ii)
if the necessary changes, as determined by Hartford, made between
the time reported and the agreed upon sign off time, or (iii) if
the necessary changes, as determined by Hartford, which must be
compatible with prior Releases, are scheduled, with Hartford's
prior approval, for the next Release or a specified future date.
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5.8.3.1 REINSTALLATION OF PRIOR RELEASE. CS agrees that if, at any time
after the installation of a new Release, Hartford and CS
reasonably determine that a Release does not perform in accordance
with the Performance Criteria and Specifications or with the
Service Level Agreement to the extent that the previous Release
did, CS will either restore such performance in the new Release or
will restore and reinstall the immediately prior Release at the CS
Computer Facility and keep it installed until such time as the new
Release performs in accordance with the Specifications and the
Performance Criteria and the Service Level Agreement
5.8.4 CS warrants that any change it makes in any Integrated
Customization or Release of the MCM System shall not negatively
impact the functionality available in an earlier Release. CS
agrees that in order to prevent such negative impact, CS will
always as a routine procedure, after making a change in the MCM
System, do regression testing of the prior Release of the MCM
System. Each new Release will be integrated with and will include
the entire MCM System.
5.8.5 In addition to meeting all Acceptance Test standards set forth in
Section 5.8 above, the MCM System and all Integrated
Customizations shall meet the standards set forth in the Service
Level Agreement, attached hereto as Schedule J and incorporated
herein by reference.
5.8.6 CS shall bear all direct and indirect costs associated with
correcting Nonconformance, including but not limited to the cost
of reinstallation of a prior release, as specified in this Section
5.8, in the MCM System and all Customizations thereto.
5.9 SYSTEM CHANGES. CS will establish a formal systems release process
for communicating status on any systems changes ("Systems
Changes") that could create any vulnerability in Hartford's use of
the MCM System. Systems Changes include but are not limited to
general MCM Enhancements, Integrated Customizations, Stand-Alone
Customizations and Third Party
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Software as well as any changes to the Operating System. CS will
advise Hartford when any requested Customization is delivered to
the programmers.
5.9.1 CS will routinely advise Hartford on the status of general MCM
Enhancements, [as well as any changes to the Operating System,]
which are being programmed and will give Hartford a timeline on
all major developments and Enhancements being planned. CS will
notify Hartford weekly of all Enhancements which are currently
being tested. Depending on the complexity of the project and
particularly the impact on end-users of the MCM System, CS will
deliver to Hartford documentation for all Enhancements from one
(1) to thirty (30) days prior to installation of the
Enhancements. The parties will agree on a time frame for such
installation.
5.9.2 If any Release will contain new or substantially revised input
screens or other details which reasonably can be expected to
require Hartford's employees to need additional instruction or
training, CS will not place such Release in production at the CS
Computer Facility until after it has delivered Documentation of
the Release to Hartford, and Hartford shall have had a reasonable
time to conduct the necessary instruction and training of its
employees.
5.10 TIME SCHEDULE
5.10.1 TIME IS OF THE ESSENCE. CS shall use its best efforts to perform
its obligations hereunder in accordance with the Time Schedule set
forth in Schedules B. Notwithstanding the foregoing sentence, CS
shall not be deemed to have breached the provisions of this
Section 5.10.1 for reasonable delays contemplated by the
provisions of this Agreement.
5.11 The Development Services will be rendered at the locations agreed
upon by CS and Hartford. The primary location will be the CS
Computer Facility in Amarillo, Texas.
6.0 REPORT SERVICES
6.1 CS agrees to develop report capabilities requested by Hartford in
accordance with the provisions in Section 5 above.
6.2 CS agrees to maintain and produce on a timely basis, in accordance
with the report time schedule in Schedule K, all the reports
available based on the computer software capability developed by
CS pursuant to Section 5 above to generate such reports.
7.0 MAINTENANCE SERVICES
7.1 In accordance with the provisions of this Section 7, CS agrees to
provide at no additional charge the following Maintenance Services
("Maintenance") to Hartford: (i) Problem Resolution as specified
in Section 7.2 below, including but not limited to daily system
checking, balancing, trouble shooting backup and database recovery
in the case of system failure; and (ii) Enhancements and Releases
as specified in Section 7.3 below.
7.1.1 In the event that there is a dispute between the Parties regarding
Problem Resolution, the Parties agree to submit the dispute to
Executive Review, pursuant to Section 20.4 below, no later than
five (5) working days after the Parties have failed to agree on a
resolution.
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7.2 PROBLEM RESOLUTION. The objective of the Problem Resolution is to
ensure that recovery and resolution activity is initiated in a
planned, organized and timely manner so as to minimize disruption
of the production of Hartford business on the MCM System.
7.2.1 Upon Hartford's notification to CS of a problem encountered in the
use by Hartford of the MCM System or any Customization, CS will
investigate any such problem to determine the nature and origin of
the problem, and, upon the completion of such investigation,
outline to Hartford the procedures to be followed in reaching a
resolution to such problem. CS may request additional information
from Hartford, in the form of problem description of system test
results, as may be reasonably necessary for CS to fully diagnose
the reported problem. Hartford may also call CS for the purpose of
clarification and discussion of a problem and/or to give advance
information to CS prior to CS's receipt of the notice. CS warrants
that it will begin Problem Resolution of any problem, as
specified in Section 7.2.2, within a reasonable period of time
(based on the significance on the problem) after notification
thereof by Hartford.
7.2.2 RESOLUTION OF ALL NONCONFORMANCE IN THE MCM SYSTEM AND FAILURE OF
THE MCM SYSTEM TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS
AND SERVICE LEVEL AGREEMENT
7.2.2.1 Resolution of all problems under this Section 7.2.2 to assure that
the MCM System and/or Customizations conform to the Specifications
in Schedule D and/or Schedule B shall be provided to Hartford by
CS as follows:
(i) For all problems that prohibit the entire MCM System or a
Customization from operating - two (2) hours following receipt of
notice from Hartford;
(ii) for all problems which cause the hardware to hang or cause a
complete function of the MCM System to fail or to cause an
Application Failure - four (4) hours following notice thereof by
Hartford to CS;
(iii) for all problems which cause the MCM System or Customization
to produce significant erroneous data - eight (8) hours following
said notice; and
(iv) for all problems (other than those which come under
subsections (i), (ii) and (iii) of this Section 7.2.2.1) which
cause a feature of a function to fail, which can be avoided by a
procedural change, or which are cosmetic or otherwise trivial in
nature - thirty (30) days following said notice.
Resolution by CS of problems as stated in this Section 7.2.2.1
shall be carried out and completed during regular business hours
as well as during non-business hours.
In the event CS fails to resolve a problem in accordance with the
provisions of Section 7.2.2.1 (i), (ii) or (iii) (or with respect
to a problem which cannot be resolved within thirty (30) days, to
have begun all necessary efforts to resolve such problem as
diligently as practicable), then CS agrees to diligently pursue
Problem Resolution by dedicating at least one (1) of its employees
who has knowledge and experience with the MCM System and the
Customizations on a full-time extraordinary basis, free of charge
to Hartford until such problem has been resolved.
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7.2.2.2 CS agrees that a CS operations representative will be available to
Hartford via phone from 7 a.m. until 11 p.m. Monday through Friday
EST, 8 a.m. through 5 p.m. Saturdays and during other hours of
on-line system. At all other times, a CS representative will be
made available, on an exception basis, at Hartford's cost,
providing Hartford has given two (2) day's advance notification,
except that CS shall provide emergency service on a twenty-four
(24) basis by the CS computer operations representative.
7.2.2.3 (THIS SECTION INTENTIONALLY OMITTED).
7.3 Right to Enhancements and Releases
7.3.1 As part of the Maintenance Services, CS shall provide to Hartford
all Enhancements and Releases as they become generally available
for delivery to other CS customers, and CS warrants that such
Enhancements and Releases shall work with MCM System. These
Enhancements and Releases shall be made available to Hartford
together with all related Documentation. Hartford shall have the
right to conduct an Acceptance Test pursuant to Section 5.8.3 for
each Release. Enhancements and Releases shall be deemed to be part
of the MCM System.
7.3.1.1 Enhancements shall be provided to Hartford no less frequently than
quarterly. A maintenance schedule for CS installation of the new
Enhancements and Releases within thirty (30) days of the issuance
of the Enhancement or Release will be adhered to. Furthermore, CS
will provide Hartford with further specifics in the maintenance
schedule and will advise in detail of the impact of each Enhancement
on the MCM System.
8.0 TRAINING AND CONSULTATION SERVICES
8.1 CS agrees to provide such training as is requested by Hartford at
any Hartford site specified by Hartford for Hartford employees
regarding the use of the MCM System. Such training shall occur at
a time mutually agreed upon by the Parties. Hartford shall pay CS
for such training at CS's then current charges for training, and
Hartford shall reimburse CS for reasonable expenses for travel and
hotel provided such expenses have been approved in advance by
Hartford.
9.0 OTHER SERVICES
9.1 GOVERNMENT COMPLIANCE
9.1.1 CS agrees that at least one (1) qualified CS employee will be
dedicated to continuous review of state requirements in order to
maintain the highest level of government compliance.
9.2 INCLUSION OF PPOs/HMOs
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9.2.1 CS agrees to include all PPOs and HMOs specified in Schedule L,
attached hereto and incorporated herein by reference and as it
may be changed from time to time. CS will load each PPO and HMO
file and will integrate each such PPO and HMO processing into the
adjudication process in accordance with the contractual
arrangements between Hartford and each such PPO and HMO. CS will
verify that the PPO and HMO discounts and fee arrangements are
being processed in accordance with each such Hartford-PPO/HMO
agreement. In order to fulfill this requirement, CS will
establish the appropriate interface software to receive the
PPO/HMO file data, maintenance updates and PPO/HMO adjudicated
data, if appropriate, from each PPO/HMO and will return the
appropriate information to each PPO/HMO.
9.2.2 [ ]
9.3 MCM SYSTEM DEVELOPMENT PLAN
9.3.1 CS will establish a formal MCM System Development Plan.
9.3.2 CS will establish an MCM System users' group and will conduct priority
planning sessions with such users' group at least two times each year.
9.3.3 Hartford shall participate in the establishment of the MCM System
priorities and in the continued design evolution of the MCM System
process. CS agrees to provide Hartford with an updated MCM System
project/priorities list on a monthly basis. The basis of Hartford's
participation in the process will be proportionate to the use of
the MCM System by Hartford in relation to the use of the MCM
System by other users, measured by the number of invoices processed
by each user on the MCM System.
CS at its sole discretion may dedicate additional resources to take
care of items it deems appropriate regardless of the priority
determined by the users group.
9.3.4 CS will provide Hartford's senior management at Hartford's site in
Hartford, Connecticut with a project review on an annual basis,
including an overview of development schedules and strategic MCM
System initiatives.
9.4 HARTFORD MARKETING
9.4.1 Upon Hartford's request, CS shall provide information and guidance
concerning CS's products and product capabilities to be used by
Hartford in developing Hartford marketing materials.
9.5 There shall be no charge for any of the Other Services specified in
this Section 9, with the exception of charges indicated in
Section 9.2.2.
10.0 PERSONNEL
10.1 CS PERSONNEL
[ ] Material redacted for confidentiality
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10.1.1 CS shall assign one individual as the CS Director who shall manage
other CS personnel ("Personnel") throughout the term of this Agreement
as is necessary to complete all Services and obligations hereunder.
10.1.2 The CS Director shall prepare written progress report on a periodic
basis as agreed to by both Parties. Hartford and CS will jointly
review each progress report promptly to ensure mutual understanding
of progress achieved and problems encountered and to determine the
action necessary to accomplish the set goals.
10.1.3 Because the progress of projects specified in this Agreement may be
dependent on the continuity of individual employees assigned by CS
to such project, CS agrees that it shall not reassign or substitute
for any employee without prior discussion with Hartford.
10.1.4 In the event of prolonged illness of a CS employee, or other causes
beyond CS's control, such CS employee may be replaced from time to
time with other CS Personnel of equal or superior experience,
competence and professional level.
10.1.5 It is the express intention of the Parties that CS is an
independent contractor and not an employee, agent, joint venturer
or partner of Hartford. CS warrants and represents that it has
complied, is in compliance with, and covenants that during the
term of this Agreement, CS will comply with all laws, rules
and regulations required by appropriate government authorities of
independent contractors.
10.1.6 CS represents and warrants that each and every employee assigned by
it to perform services under this Agreement shall be an employee of
CS and not of Hartford.
10.1.7 CS represents, warrants and covenants that during the course of this
Agreement it will be solely responsible for the withholding and
payment of all employment-related taxes, including, but not limited
to, Workers' Compensation, disability and unemployment insurance.
CS represents, warrants, and covenants that with respect to all CS
employees assigned to perform services under this Agreement, it
will comply with all state, local and federal laws, statutes and
regulations relating to employment. CS agrees to defend, indemnify
and hold harmless Hartford and its employees from any and all loss,
costs, damages, expenses or liabilities (including attorney's fees),
arising out of the breach of the provisions of this Section 10 and
all subsections thereto by CS.
10.1.8 Upon Hartford's request, CS shall provide Hartford, within thirty (30)
days of said request, proof in a form reasonably requested by
Hartford that as an employer of such employees as are assigned to
provide Services pursuant to this Agreement, CS has complied with
all laws, rules, and regulations applicable to an employer,
including appropriate tax withholding and filings and payments for
all insurance, including but not limited to, employment related
taxes, workers' compensation, disability and unemployment insurance
for CS and CS's employees.
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10.1.9 CS agrees that it and its employees will at all times comply with all
reasonable regulations regarding security, assigned parking, usage of
Hartford equipment, facilities and personnel and safety generally
applicable to Hartford's employees and invitees, in effect from time
to time at Hartford's premises and externally for materials belonging
to Hartford. Further, CS agrees that it and its employees will be
subject to reasonable restrictions imposed by Hartford in connection
with areas of their premises at which CS employees may be present
during the course of the performance of this Agreement.
10.1.10 CS will indemnify and hold harmless Hartford and its employees,
from any and all loss, costs, damages, expenses and liabilities
(including attorney's fees) with respect to: (a) any injury to,
or death of any employee of CS while such person is present on the
premises of Hartford; and (b) any damage to CS property or that of
any of its employees which may occur while at the premises of
Hartford, unless and except to the extent that such injury, death,
loss or damage is caused by the negligence or willful misconduct
of Hartford, its employees or agents.
10.1.11 CS will indemnify and hold harmless Hartford and its employees
from any and all loss, costs, damages, expenses and liabilities
(including attorney's fees) by reason of personal injury or
property damage of whatsoever nature or kind arising, in whole
or in part, out of, as a result of, or in connection with the
acts or omissions of CS or CS Personnel. Furthermore, CS agrees
to maintain comprehensive general liability insurance and any
other appropriate insurance covering CS's obligations contained
herein.
10.1.12 CS agrees that all CS employees, consultants and agents working on
the Project shall sign CS's standard Nondisclosure Agreement,
substantially in the form of Schedule M, which is attached hereto and
is incorporated herein by reference. CS agrees that Hartford shall be
an intended third party beneficiary of each such Agreement.
10.2 HARTFORD PERSONNEL
10.2.1 Hartford will provide one (1) Hartford employee as the Hartford
Director. Such Hartford Director shall be the contact person for CS.
The Hartford Director shall be familiar with Hartford's installed
insurance and claims procedures and the user requirements for the
Customizations.
10.2.2 Hartford agrees that all Hartford employees and consultants working
on a Project shall sign Hartford's standard Nondisclosure Agreement,
substantially in the form of Schedule N, which is attached hereto and
incorporated herein by reference. Hartford agrees that CS shall be
an intended third party beneficiary of each such Agreement.
10.2.3 Hartford represents and warrants that each and every employee assigned
by it to perform services under this Agreement shall be an employee
of Hartford and not of CS.
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11.0 DOCUMENTATION
11.1 CS agrees that it will provide Hartford with all Documentation
for the MCM System (including all Releases thereof) and
Customizations before or at the same time as the MCM System
and any Customizations have been installed and placed in
production at the CS Computer Facility. Documentation for
Enhancements will be provided at least quarterly.
11.1.1 Such Documentation will specify in detail the functionality and use of
each Enhancement Release and Customization and the interrelationship
of each Enhancement, Release and Customization to the rest of the
MCM System.
11.1.2 Hartford shall have the right to reproduce all Documentation supplied
hereunder for Hartford's business use, subject to the terms and
conditions of this Agreement.
11.2 CS agrees to maintain full Documentation for the MCM System and all
Customizations, updated quarterly, on system replication requirements
(including but not limited to a listing of vendors, products, and
releases) in accordance with Section II of Schedule B, Schedule D,
Schedule E and Schedule I. The Documentation is to be included with
the quarterly updates to the software held in escrow.
12.0 WARRANTIES
12.1 CS warrants that the MCM System is designed to and will perform in
accordance with the Specifications set forth in Schedule D and that
such Specifications are a complete and accurate description of the
functional capabilities of the MCM System.
12.2 CS represents that it is a software development company with the
necessary expertise, capability, experience, tools and personnel to
provide the Development Services entailed by the scope of this
Agreement. CS warrants that each and every Integrated Customizations
and Stand-Alone Customization is designed to and will perform in
accordance with the Specifications set forth in Schedule B and that
such Specifications are a complete and accurate description of the
functional capabilities of the Integrated and Stand-Alone
Customizations.
12.3 CS agrees that it will provide a continuously stable processing
environment for Hartford's business, in both on-line and batch mode,
with the MCM System and the Customizations and that the MCM System
and the Customizations will perform in every respect in accordance
with the terms of the Service Level Agreement as specified in
Schedule J, which is attached hereto and is incorporated herein by
reference.
12.4 CS will on a continuous basis while this Agreement is in effect
provide Maintenance Services with respect to the MCM System and
Customizations pursuant to Section 7 above so that the MCM System and
the Customizations will perform as documented in the Specifications.
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12.5 CS warrants that the appropriate Release of the MCM System (and all
Third Party Software) and any Customization will, at all times, be
fully compatible with and run on the Authorized Hardware, the
interface software and the appropriate version of the operating
system. CS further warrants that the capacity of the Hardware, the
interface software and operating software will be sufficient to
maintain the level of response that is specified in the Specifications
in Schedules B and D and in the Service Level Agreement in Schedule J.
12.6 CS represents and warrants that it has and will continue to have and
maintain the necessary facilities, equipment and personnel to perform
its duties and obligations pursuant to this Agreement to give
Hartford access to and full use of the MCM System and Customizations
and to maintain and adequately safeguard all information and data
stored at the CS Computer Facility and at an approved backup site in
accordance with Section 4 above.
12.7 [THIS SECTION OMITTED INTENTIONALLY]
12.8 VIRUS REPRESENTATION AND WARRANTY
12.8.1 CS covenants, warrants and represents that it has taken reasonable
steps to test the MCM System and all Customizations for "Disabling
Code" and that the MCM System and Customizations are free of Disabling
Code as of the date of delivery by CS, and that CS will continue to
take such steps with respect to future Enhancements or modifications
to the MCM System and Customizations. Disabling Code is defined as
computer instructions that alter, destroy or inhibit the MCM System,
the Customizations and/or Hartford's processing environment,
including, but not limited to, other programs' data storage and
computer libraries. Disabling Code includes, but is not limited to,
programs that self-replicate without manual intervention, instructions
programmed to activate at a pre-determined time or upon a specified
event, and/or programs purporting to do a meaningful function but
designed for a different function. CS further warrants that it will
maintain a master copy of each Enhancement of the MCM System and each
Customization free and clear of any Disabling Code.
12.9 THIRD PARTY SOFTWARE INTEGRATION. CS warrants that the MCM System is
applying the agreed upon Third Party Software analytical tools in a
manner that is appropriate for each tool and which allows for
efficient and effective interrelationship of the tools.
12.10 The warranties provided pursuant to this Section 12 shall apply to
the MCM System (including all Third Party Software) and all
Enhancements thereto and all subsequent Releases thereof and to each
and every Customization.
12.11 CS warrants and represents, that except for the Third Party Software,
it is the owner of the MCM System and that the MCM System is the sole
and exclusive property of CS, and that CS has full power and
authority to grant the rights herein granted, including but not
limited to the right to sublicense all Third Party Software for use
in the MCM System at the CS Computer Facility, without the consent of
any other person and will indemnify and hold Hartford harmless from
and against any loss, cost, liability and expense arising out of any
breach of this warranty.
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12.12 GOVERNMENT REQUIREMENTS
12.12.1 CS warrants that it will comply with all applicable federal, state
and local laws and statutes, as well as the rules and regulations of
all relevant regulatory boards, agencies and commissions relating to
the rendering of services under this Agreement.
12.12.2 CS warrants that it will accumulate all data necessary for
regulatory agency reporting, and comply, on behalf of Hartford,
with all state requirements for reporting medical payments. Said
reports are to be filed electronically where feasible and manually
where not, in formats approved by the regulatory agencies.
12.12.3 CS warrants that new requirements/form types will be incorporated
into the MCM System and Customizations, as appropriate, by the
effective date of requirement or at least no later than 30 (thirty)
days whenever reasonably possible from notification in the event
that the notification period does not allow for implementation on
the effective date.
12.12.4 CS warrants that the MCM System can fulfill the regulatory
reporting requirements of Florida, Texas, and Oregon. CS will
review and evaluate each additional state as requirements become
available and will exert reasonable efforts to cause the MCM
System to support automated compliance with such additional state's
repricing and reporting requirements.
13.0 LIABILITY AND INDEMNITIES
13.1 CS warrants any processing or storage services, including the
repricing services furnished under this Agreement against
malfunctions, errors, or loss of data which are due to errors on the
part of CS, its equipment, or its employees. If Hartford notifies CS
in writing and furnishes adequate documentation of any malfunction,
error, or loss of data covered by this warranty within twenty (20)
days after it occurrence or if CS discovers any malfunction, error,
or loss of such data, then;
(i) With respect to such malfunction or error, CS shall without
charge reprocess reports designated by Hartford which fall
within reasonable check point intervals; and
(ii) With respect to lost data, CS shall either (a) regenerate without
charge any lost data if Hartford provides adequate backup
materials in machine readable form, or (b) if Hartford does not
provide such backup materials, grant Hartford a credit in an
amount equal to the CS estimated cost of regeneration, such
estimate to be made as if such backup materials were available.
13.1.1 If errors not attributable to Hartford, shall result in the
imposition of State penalties against Hartford, CS shall reimburse
Hartford for the total amount of such penalties.
13.2 CS warrants that the repricing is correct and is in accordance with
the applicable rules and regulation of the States, and CS will pay
any penalties that may occur if the repricing is found to be
incorrect and such error is not attributable to Hartford. This
warranty covers only those fee schedules and repricing rules of the
States which CS maintains in its MCM System.
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13.3 CS agrees to employ due care and attention in processing medical
claims according to the terms of this Agreement. CS shall be liable
for all losses due to its errors, omissions, or delays, caused by
its negligence or willful misconduct, including but not limited to
administrative fines and penalties imposed on Hartford due directly
to actions or information supplied by CS to Hartford. CS shall
indemnify, defend with counsel of Hartford's choice, and hold
harmless Hartford from and against all claims, losses, costs,
expenses or other liabilities, including reasonable attorney's
fees, that Hartford shall incur or suffer arising out of or
resulting from such negligence or willful misconduct by CS. The
extent of CS's liability to Hartford for the purposes of this
Seciton 13 shall be no more than the policy limits of all
applicable CS insurance policies, if such liability is covered by
insurance, and, if not, no more than $1,000,000 during any
consecutive twelve-month period.
13.4 Hartford may adopt such measures as it deems appropriate to limit its
exposure with respect to potential losses and damages caused by CS,
as described above. CS shall comply with all reasonable measures
adopted by Hartford.
13.5 CS shall secure and maintain, at all times during the course of
this agreement, comprehensive general liability insurance and
professional liability and/or malpractice or errors and omissions
insurance in the amount of at least $1,000,000 per occurrence,
$5,000,000 aggregate, to cover all responsibilities and obligations
of indemnity of CS under this Agreement. CS will designate
Hartford as an additional insured. CS will notify Hartford at
least thirty (30) days in advance before amending, modifying,
replacing, terminating or permitting to lapse without renewal any
such insurance in order to maintain the terms of this Agreement.
13.5.1 CS will also add Hartford as a loss payee on its property insurance
coverage so that CS's property insurer shall indemnify Hartford for
the costs of restoring any of Hartford's data and records which are
maintained on CS's premises.
13.5.2 Prior to execution of this Agreement by the Parties, CS will provide
Hartford with copies of all policies or endorsements evidencing
compliance with this section.
13.6 Hartford shall be liable for all losses due to its errors, omissions,
or delays, caused by its negligence or willful misconduct,
including but not limited to administrative fines and penalties
imposed on CS due directly to actions or information supplied by
Hartford to CS. Hartford shall indemnify, defend and hold harmless
CS from and against all claims, losses, costs, expenses or other
liabilities, including reasonable attorney's fees, that CS shall
incur or suffer arising out of or resulting from such negligence or
willful misconduct by Hartford, or resulting from action taken or
permitted by CS in good faith with due care and without negligence
in reliance upon written instructions received from Hartford.
13.7 Hartford shall bear sole responsibility for any administrative fines,
penalties or civil/criminal actions resulting from any direct
actions on the part of Hartford that delays the timely processing of
medical bills by CS according to the requirements of any appropriate
regulatory agencies.
13.8 The terms of Section 13 shall survive the termination of this
Agreement.
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14.0 SOURCE CODE ESCROW
14.1 CS will place and maintain a copy of the Source Code and Documentation
for the MCM System, excluding source code for third party systems,
and the Hartford data files, including but not limited to all
Integrated Customizations in escrow for Hartford with Data Security
International ("DSI"). Hartford agrees to pay DSI all fees for said
escrow.
14.2 CS shall update the Source Code and Documentation at least every
(4) four months and provide DSI with the updated Source Code and
Documentation.
14.3 In the event of the occurrence of any of the events specified below in
this Section 14.3 and subject to Section 14.3.1, Hartford shall have
the right to demand that DSI provide Hartford with all of the MCM
System and Software Source Code and Documentation, (together with a
copy of the most recent MCM System Object Code) and any and all
Hartford data resident on the MCM System that in Hartford's opinion
is required or helpful to sustain operation of the MCM System and
continue to conduct its business:
(i) the failure of CS to provide the Services described in Sections 4
and 12.12 above over a period of three (3) months which were not
remedied by CS within such period of time;
(ii) the failure of CS to provide the Services described in
Sections 5, 6, and 7 above over a period of six (6) months which
were not remedied by CS within such period of time;
(iii) the filing of Chapter 7 with respect to CS, and/or;
(iv) the acquisition by a third party that is a competitor of Hartford
in insurance and/or insurance services, in Hartford's reasonable
opinion, (through purchase, merger or otherwise) of more than
fifty (50%) control of CS).
14.3.1 If Hartford's right to acquire the MCM System and Software Source Code
arises under Section 14.3 (i) or (ii), but not under (iii) or (iv),
the exercise of such right is subject to Hartford's payment to CS of
the purchase price options set forth in Section 2.2.1, reduced by
twenty-five percent.
14.4 When Hartford shall come into possession of the Source Code for MCM
System as described in Section 14.3 above, Hartford shall thereafter
have the right to modify such Source Code to perform any functions
which Hartford deems desirable, including but not limited to making
modifications, Enhancements and Customizations to the MCM System and
Report capabilities thereto, and to merging it or any part thereof
into other computer software, limited, however, to use in Hartford's
insurance, claims, insurance administration, including but not
limited to third party administration, or insurance service
businesses only, and the Source Code as so modified shall,
nonetheless, remain subject to the same restrictions on use,
reproduction and disclosure as are contained in this Agreement.
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14.4.1 Hartford may not use the MCM System Source Code or any modifications
thereof to compete with CS. Hartford may not sell or license the use
of the MCM System to any other party. Hartford may utilize the MCM
System and the source code for such System, however acquired, solely
to process claims and data in the ordinary course of its insurance,
claims, insurance administration, including but not limited to third
party administration and insurance service businesses.
15.0 INTELLECTUAL PROPERTY INDEMNITY
15.1 CS warrants that the MCM System and the Customizations hereby furnished
do not infringe upon or violate any patent, copyright, trade xxxx,
trade secret or any other proprietary right of any third party. CS
represents and warrants that it is under no obligation or
restriction, nor will it assume any such obligation or restriction,
which would in any way interfere or be inconsistent with the MCM
System and/or Customizations and Services to be furnished by it
under this Agreement.
15.2 Hartford shall notify CS of any claim, action or suit against Hartford
arising with respect to the MCM System and/or the Customizations and
alleging infringement of any patent, trademark, copyright, trade
secret or other proprietary right of any third party. CS agrees to
indemnify Hartford against and hold Hartford harmless from any and
all loss, damage or liability assessed against Hartford or incurred
by Hartford arising out of or in connection with any such claim,
action or suit provided: (i) CS has been notified promptly and in
writing that any such claim, action, or suit is threatened or has
been brought; (ii) CS has the right to assume the defense of such
claim, action or suit with counsel selected by CS and to compromise
or settle such action, suit or claim; and (iii) CS receives
Hartford's cooperation, at CS's sole cost, in the defense of such
claim, action, or suit After notice from CS to Hartford that CS has
assumed such defense, CS will not be liable to Hartford for any
legal or other expenses subsequently incurred by Hartford in
connection with such defense, other than (a) reasonable costs of
investigation, (b) in the event that CS does not diligently defend
such action, in which case Hartford shall have the right to assume
sole control of the defense and CS agrees to pay all legal expenses
associated with such defense and the full amount of any judgment or
settlement, or (c) unless incurred at the written request of CS, in
which event such legal or other expenses shall be borne by CS.
15.3 In the event any such claim, action or suit the MCM System and/or
Customizations ("Infringing Product") is held to constitute an
infringement and its use is enjoined, CS shall have the right to
either (i) procure for Hartford the right to continue using the
Infringing Product (ii) with the prior written consent of Hartford,
modify the Infringing Product so that it is non-infringing, or (iii)
with the prior written consent of Hartford, substitute for the
Infringing Product with a non-infringing and functionally equivalent
replacement
15.4 The provisions of this Section 15 shall survive any termination of
this Agreement.
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16.0 CONFIDENTIALITY
16.1 The Parties acknowledge that during the course of this Agreement one
Party ("Confidant") may acquire the proprietary or confidential
information, so designated in writing, or which, from the
circumstances, in good faith and good conscience ought to be treated
as confidential, of the other ("Discloser"). All such information
(regardless of its embodiment and/or of the media upon which any of
it may now or hereafter reside) is and shall remain exclusively the
property and (possibly) the valuable trade secret of the Discloser
who shall retain all title, right and interest therein except as
specified herein. For the purposes of this Agreement, proprietary
and confidential information includes but is not limited to business
plans, customer or client list, medical and claims history of
Hartford's insureds, and any programs, descriptions, forms,
instructions or related information relating thereto, regardless of
the "designation in writing" requirement, above.
16.2 Confidant shall hold all such information in confidence and shall
safeguard it all, as though the same were its own valuable trade
secret, and Confidant shall make use of any such information solely
for the purposes permitted by this Agreement or as otherwise agreed
between the Parties in writing. Confidant shall use its best efforts
not to disclose any such information to any person except such of
its employees who need said information to accomplish purposes
permitted by this Agreement and who have been properly advised of
the obligations of the Confidant hereunder.
16.2.1 CS specifically agrees to maintain in strict confidence, and not to
disclose to any party, except as authorized in writing by Hartford:
(i) data and materials furnished by Hartford for processing medical
claims under this Agreement, or
(ii) confidential or privileged patient medical information obtained
in the course of processing medical claims under this Agreement,
or
16.2.2 CS agrees that it will not use data, materials, or information for
any purposes other than for the processing of medical claims
pursuant to this Agreement, except that (i) CS may provide blind
medical xxxx data to third party technology vendors and (ii) CS may
use the data on a blind or anonymous basis, aggregated with all of
CS's other data, for CS product development studies and marketing.
CS agrees that if CS uses any of this data for marketing purposes,
CS will provide Hartford with related marketing materials.
16.3 Confidant shall maintain conspicuously on all such information such
copyright, proprietary notices and/or legends as shall be included
by the Discloser, or otherwise permitted by this Agreement.
16.4 Confidant shall not reproduce, copy or appropriate any such information
in whole or in part without the express permission of Discloser,
except as provided in this Agreement.
16.5 If Confidant breaches any provision of this Section 16, Discloser shall
be entitled to seek all remedies and relief available at law or
equity from its appropriation of proprietary information, including
reasonable attorney's fees.
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16.6 Information received from Discloser shall not be deemed to be
proprietary information and/or confidential information, and the
Confidant shall have no obligations with respect to such information
which is: (i) Already known to the Confidant; or (ii) becomes
publicly known through no wrongful act of The Confidant; or (iii)
received by The Confidant from a Third party without similar
restriction and without breach of This Agreement; or (iv)
independently developed by the Confidant; or (v) approved for
release by written authorization of Discloser; or (vi) disclosed
pursuant to the lawful requirement or a request of a court of
competent jurisdiction or government agency.
16.7 In the event any confidential or proprietary information is lost or
comes into the hands of an unauthorized person, whether due to
negligence or intentional acts or omissions on Confidant's behalf,
Confidant will indemnify Discloser for all losses and expenses
incurred. Further Confidant agrees, at its expense, to use its best
efforts in attempting to promptly retrieve and deliver to Discloser
all such material coming into the hands of such unauthorized person,
agency, firm or corporation.
16.8 The provisions of this Section 16 shall survive termination of this
Agreement.
17.0 FEES, PAYMENT, CHARGES AND TAXES
17.1 All fees and charges hereunder shall be paid in accordance with the
Payment Schedule in Schedule O.
17.1.1 [ ]
17.1.2 CS and Hartford will conduct an intensive investigation of software
costs to ascertian a realistic cost structure for the MCM System.
This investigation will include a base-line assessment of
non-computer costs in the CS Service Centers. Similarly,
Hartford's Information Management organization will work with CS to
determine the cost of executing OS software in Hartford's data
center, including but not limited to: (i) an assessment of software
leasing costs of non-CS software, such as database software; (ii)
special adaptations to Hartford's operating environment, if needed;
and (iii) such other costs as are indentified by Hartford. In
order to conduct this assessment, Hartford will be provided with
access to CS's Resource Management Facility ("RMF") and System
Management Facility ("SMF") data sets and with data regarding CS's
on-line and batch transaction volumes and response time. This
continuing assessment will be done no more frequently than once
each calendar year.
17.2 With respect to Development Services for Customizations, the Parties
may agree to time and materials charges instead of a fiat fee on a
Project basis. Changes to time and material charges shall be
effective with regard to Hartford ninety (90) days after Hartford
receives notice of any such changes. Before CS commences any work on
any Customizations, whether priced on a Project basis or on a time
and materials basis, Hartford must have given prior written approval
to proceed with such Customizations in accordance with a formal
plan, including the fee schedule and time frames.
[ ] Material Redacted for Condidentiality
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17.3 Hartford agrees to reimburse CS for any reasonable travel and
accommodation expense incurred by CS directly related to training
and consulting services hereunder, but only if such expenses have
been approved in writing in advance by Hartford. CS agrees to send
to Hartford a detailed monthly report stating the expenses incurred
to date, who performed the work, the date the work was performed
and the type of work performed, accompanied by actual receipts.
Hartford agrees to reimburse CS for such expenses within thirty
(30) days of its receipt of such report.
17.4 The prices set forth in the attached Schedule O do not include
sales taxes. Hartford agrees to pay CS in a timely manner the
amount of any such taxes which CS is required to collect, unless
Hartford provides CS with an exemption certificate or other form of
documentation as may be required by state law which would have the
effect of alleviating CS's duty to collect some part or all of such
tax, or provides CS with appropriate rights to indemnification to
have CS not collect some part or all of such tax. Hartford shall
have no obligations to CS for any other taxes, including franchise,
income or occupational taxes, which are not specifically levied on
the individual transactions herein contemplated, nor for any
interest or penalties resulting from anything but the gross
negligence or willful misconduct of Hartford.
17.5 CS represents and warrants that the amounts of any charges for the
MCM System and/or the Services provided by CS to Hartford hereunder
shall be no greater than the lowest comparable price, and that the
terms and conditions hereof are no less favorable to Hartford than
those at which CS from time to time offers to provide or provides
to other customers for the MCM System and/or any such related
services which are reasonably comparable in volume and scope. In
the event that during the term of this Agreement, CS provides to
another party the MCM System and/or any such related services which
are reasonably comparable in scope or lower in volume than those
included herein, at a price less than that charged to Hartford
hereunder or on terms or conditions more favorable to another party
than hereunder provided, then CS shall immediately inform Hartford
in writing and this Agreement shall automatically be amended to
provide such prices and terms and conditions to Hartford beginning
with the next billing month.
17.5.1 The Parties agree that Section 17.5 shall only apply with respect
agreements with CS's other customers which are dated on or after May
1, 1993. Section 17.5 shall not apply to agreements between CS and
other CS customers entered into before May 1, 1993, including
renewals on the same terms after May 1, 1993. However, if a CS
customer that entered into an agreement with CS prior to May 1,
1993, either renews such a agreement on different terms after May 1,
1993 or enters into a new agreement with CS after May 1, 1993, then
Section 17.5 shall apply.
18.0 AUDITING
18.1 CS shall maintain complete and accurate books of account with respect
to all the fees charged and shall provide such detailed accounts to
Hartford at Hartford's request. Hartford, at its request shall, at
no cost to CS, have the right to audit those portions of CS'
financial records directly related to the fees charged.
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18.2 CS will provide Hartford and/or auditors, retained by Hartford at
Hartford's cost, access to assessment information regarding the
operating performance of the MCM System as it relates to Hartford.
18.3 The Parties also acknowledge that certain federal and state agencies
may require access to facilities of CS to audit the performance of
the Services provided by CS to Hartford under this Agreement, and CS
agrees to cooperate with respect to all such governmental audits.
19.0 TERM AND TERMINATION AND LIQUIDATED DAMAGES
19.1 The initial term of this Agreement shall be for two (2) years from
the Effective Date, except as provided in Sections 19.1.1 and 19.1.2
below. Thereafter the Agreement shall be renewed for consecutive one
(1) year terms provided that both Parties agree to such renewal
within thirty (30) days of the end of the prior term.
19.1.1 Hartford shall have the right to terminate the Agreement at any time,
without cause and for any reason, upon a one (1) year written notice
of its intent to terminate measured from the date of receipt of such
termination notice by CS.
19.1.2 CS shall have the right to terminate the Agreement at any time, without
cause and for any reason, upon two (2) years written notice of its
intent to terminate measured from the date of receipt of such
termination notice by Hartford.
19.2 Hartford may terminate this Agreement, in whole or in part, due to any
state or federal regulatory change which has the effect of
eliminating the need for repricing and analysis services for
Workers' Compensation and any other lines of coverage that are
involved.
19.3 Either Party may terminate this Agreement upon the occurrence of any
event of breach or default provided that the Party not in default
shall give the Party deemed to be in default written notice of such
default and such Party in default shall have sixty (60) days from
receipt of such notice to correct the alleged default, or a longer
period of time if the party not in default agrees in its sole
discretion in writing to extend the cure period for such breach. In
the event that the default is not cured within such sixty (60) day
period, or if an Extension has been granted, within the time period
for such an Extension specified by the party not in breach, this
Agreement shall, at the option of the Party not in default, be
immediately terminated and such Party shall be entitled to seek any
remedies provided herein and under applicable law.
19.3.1 With respect to Hartford the only material breaches of this Agreement
which would entitle CS to terminate this Agreement pursuant to this
Section 19.3 shall be the following: (i) The failure of Hartford to
remit payments to CS due from Hartford to CS hereunder on a timely
basis, excluding any permissible offset pursuant to this Agreement,
and excluding any such failure with respect to a good faith dispute
between the Parties with respect to a payment; or (ii) the failure
of Hartford to fulfill its confidentiality obligations as provided
in Section 16 above which were not remedied by Hartford.
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19.3.2 With respect to CS the only material breaches of the Agreement which
would entitle Hartford to terminate this Agreement pursuant to this
Section 19.3 shall be the following:
(i) the failure of CS to provide the Services described in Sections 4
and 12.12 above;
(ii) the failure of CS to provide the Services described in
Sections 5, 6, and 7 above;
(iii) the failure of CS to fulfill its confidentiality obligations as
provided in Section 16 above which was not remedied by CS;
(iv) the failure of CS to fulfill its obligations to indemnify
Hartford as provided in Sections 13 and 15 above;
(v) the filing of Chapter 7 with respect to CS; or
(vi) the acquisition by a third party (through purchase, merger or
otherwise) of more than fifty percent (50%) control of CS.
19.4 Each of the following events shall constitute an event of Default by
either of the Parties hereunder and shall permit the other to
terminate this Agreement pursuant to this Section 19: (i) If a Party
to this Agreement ceases to do business as a going concern; (ii) the
filing by a Party to this Agreement of a voluntary petition in
bankruptcy or a voluntary petition or an answer seeking
reorganization, an arrangement, the adjustment of its debts, or for
any relief under the applicable bankruptcy or insolvency laws, now
or hereafter existing, or any other action by said Party or said
Party indicating consent to, approval of, or acquiescence in, any
such similar petition or proceedings; the application by said Party
for, or the appointment by consent or acquiescence of said Party of
a receiver or trustee for itself or for all or substantial part of
its properties; the making by said Party of an assignment for the
benefit of creditors; or the inability of said Party, or the
admission by said Party in writing of its inability to pay debts as
they mature; or (iii) filing of involuntary petition against a Party
to this Agreement in bankruptcy or seeking reorganization, an
arrangement, readjustment of its debts or for any relief under the
applicable bankruptcy or other insolvency laws, now or hereafter
existing; or the involuntary appointment of a receiver or a trustee
for said Party or for all or a substantial part of its property; and
any one of the same remains undismissed or undischarged for ninety
(90) days.
19.5 TERMINATION OF DEVELOPMENT SERVICES
19.5.1 Hartford, in its sole discretion, may at any time terminate any
Development Services Project pursuant to Section 5 above or any
portion thereof by sending written notice of such termination to CS.
Hartford shall pay CS for the Development Services performed on such
Project prior to termination on a pro rata basis in accordance with
the payment schedule in Schedules B and/or O.
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19.6 OBLIGATIONS UPON TERMINATION
19.6.1 Upon termination of this Agreement, in whole or in part, CS agrees
that it will, as a part of the services to be provided under this
Agreement, and at no extra cost or expense to Hartford except as
noted below, fully cooperate and assist Hartford in making an
orderly transition so that the services provided by CS under this
Agreement may be provided directly by Hartford or by another
contractor designated by Hartford. CS's cooperation and assistance
under this Agreement shall include, but not be limited to, the
following:
(i) Train Hartford's staff and/or the staff of a Hartford
contractor, upon request by Hartford, with pre-approved
reasonable training costs and travel expenses to be billed
to Hartford at CS's then current rates;
(ii) Deliver to Hartford, upon its written request, of all written
records maintained by CS in connection with the services
provided to Hartford under this Agreement, with any reasonable
costs of reproduction or shipping to be billed to the Hartford;
(iii) Deliver to Hartford, upon its written request, any and all
computerized data in the formats specified by Hartford, with
any reasonable direct costs associated with reprogramming
and/or data preparation based on Hartford requirements and
shipping will be billed to Hartford.
19.7 LIQUIDATED DAMAGES
19.7.1 In the event of the occurrence of any of the following events, CS
acknowledges that Hartford will have sustained damage and therefore
CS agrees to pay Hartford, within thirty (30) days of CS's receipt
of Hartford's notice therefor, the dollars specified below, which
shall constitute liquidated damages, not penalties:
(i) BREACH OF ON-LINE AVAILABILITY. In the event that online
availability for a given month falls below the minimum
requirement [ ].
(ii) SYSTEM RESPONSE TIME. CS will provide the System response time
in accordance with the commitment specified in Schedule J. In the
event that systems response time for a given month falls below
the [ ] time as specified in
Schedule J, [ ].
(iii) FAILURE BY CS TO IMPLEMENT DISASTER RECOVERY PLAN. In the event
CS fails to implement or to execute the Disaster Recovery Plan in
accordance with Section 4.7 above, CS shall refund Hartford for
the total amount paid for the cost of Disaster Recovery as
specified in Schedule O. Said amount shall be payable within
thirty (30) days of the on-set of the disaster.
[ ] Material redacted for confidentiality
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(iv) FAILURE TO COMPLY WITH SECTION 12.12. In the event that CS fails
to comply with the provisions in Section 12.12 above, CS shall:
(a) Reprocess free of charge all invoices that were not
processed in compliance with the state's requirements.
Such reprocessing shall include all the activities
required to adjudicate each such invoice.
(b) FAILURE TO MEET AGREED UPON TIME SCHEDULE FOR SOFTWARE
DEVELOPMENT. CS will [ ] for the
Software Development Project at issue [ ]
provided that the delay was solely caused by CS.
20.0 RELATIONSHIP BETWEEN THE PARTIES
20.1 In order to assure the efficient implementation of the efforts
hereunder, a close relationship must be established between CS and
Hartford. CS and Hartford will maintain a responsive working
relationship at all times by maintaining strict adherence to the
established communications channels.
20.2 Each of the Parties will act as an independent contractor under the
terms of this Agreement and neither is now, or in the future, an agent
or a legal representative of the other for any purpose. Neither Party
has any right or authority to supervise or control the activities of
the other Party's employees in connection with the performance of this
agreement or to assign or create any application of any kind, express
or implied, on behalf of the other Party or to bind it in any way, to
accept any service of process upon it or to receive any notice of any
nature whatsoever on its behalf.
20.3 [THIS SECTION INTENTIONALLY OMITTED]
20.4 EXECUTIVE REVIEW
20.4.1 CS and Hartford shall adhere to the following internal escalation
procedures within CS and Hartford in order to expeditiously resolve
any problems arising while this Agreement is in effect: (i) One
individual who is authorized to speak for each Party will be nominated
and will attempt to resolve the problem; and (ii) if a resolution is
not reached between these individuals within two (2) days after
referral to them of the problem, the dispute shall be escalated to
Executive Review as specified in Section 20.4.2 below.
20.4.2 Executive Review shall be conducted as follows: Within thirty (30)
days of any Party's request for Executive Review, an executive level
employee of each Party shall be designated by the Party to meet with
his counterpart to attempt to settle the dispute. Initially, the
designee of CS is XXXX XXXXX and the designee of Hartford is XXXXXXX
XXXXXXXX. If said executives are unable to resolve the dispute, then,
within ten (10) days of the conclusion of said first level of
Executive Review, either Party may request that the problem be
escalated to a second level of Executive Review. Within ten (10) days
of any Party's request for said second level of Executive Review, the
Chief Executive Officer, or Chairman of the Board of CS and the head
of Hartford's Information Management Department shall meet to attempt
to settle the dispute. Initially, the designee of CS for such second
level is XXXXXX XXXX and the designee of Hartford is XXXX XXXXXXXX.
[ ] Material redacted for confidentiality
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20.5 ARBITRATION
20.5.1 Any controversy relating to this Agreement or the breach thereof shall
be determined by arbitration in the city of Hartford, Connecticut in
accordance with the Commercial Arbitration rules of the American
Arbitration Association (except as otherwise specified in this
Section 20.5) using arbitrators who are experienced commercial
litigators admitted before the bar of any state of the United
States. Arbitrators shall be compensated for their services at the
standard hourly rate charged in their private professional
activities. The Parties acknowledge that the United States District
Court for the District of Connecticut has jurisdiction over the
Parties for the purpose of enforcing this Section 20.5. Connecticut
rules of civil procedure and evidence shall apply with respect to
any arbitration hereunder. The award may be made solely on the
default of a Party. The arbitrator(s) shall follow substantive
rules of law. The arbitrator(s) shall make its award in strict
conformity with this Agreement and shall have no power to depart
from or change any of the provisions thereof. The award of the panel
shall be accompanied by findings of fact and a written statement of
reasons for the decision. The Parties agree to be bound by the
results of this arbitration; judgment upon the award so rendered may
be entered and enforced in any court of competent jurisdiction. To
the extent reasonably practicable, both Parties agree to continue
performing their respective obligations under this Agreement while
the dispute is being resolved.
20.5.2 In the event that either Party initiates litigation involving any
disputes arising under this Agreement prior to submitting the
dispute to arbitration, the other Party shall be entitled to obtain
an order referring the case to arbitration pursuant to Section 20.5
above and shall be entitled to reimbursement for legal fees and
costs incurred up through the date of the issuance of said order.
21.0 ASSIGNMENT
21.1 CS may not assign this Agreement and any rights and duties thereunder
except upon prior written consent of Hartford. For purposes of this
Agreement, the acquisition by a third party (through purchase,
merger or otherwise) of more than fifty (50%) of control of CS will
be considered to be an assignment and grounds for termination in
accordance with Section 19.3.2.
21.2 Hartford shall have the right to assign this Agreement and any and all
rights and duties thereunder to any affiliated company or entity
without the consent of CS and to any entity to which Hartford in the
future may sell part of all of the insurance business which is
processed on the MCM System, provided, however, in the latter case
CS shall have the right to terminate this agreement by giving 180
days written notice of it intent to do so. Any other assignment by
Hartford must receive prior written consent from CS.
21.1 This Agreement shall be binding upon and inure to the benefit of the
Parties hereto, their successors (including by merger) and permitted
assigns.
22.0 GENERAL
22.1 This Agreement can only be modified by a written agreement duly signed
by the persons authorized to sign agreements on behalf of CS and of
Hartford and no other variance from the terms and conditions of this
Agreement will be of no effect.
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22.2 If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or be impaired thereby.
22.3 This Agreement is the complete and exclusive statement of the agreement
between the Parties as to the subject matter hereof which supersedes
all proposals or agreements, oral or written, and all other
communications between the Parties related to the subject matter of
this Agreement
22.4 This Agreement shall be governed and construed in accordance with the
laws of the State of Connecticut. Hartford and CS agree that all
litigation arising with respect to the subject matter of this
Agreement will be litigated in the courts of the State of
Connecticut, including the United States courts located therein.
22.5 CS agrees that it will not directly or indirectly, without the prior
written consent of Hartford, use for the purposes of advertising,
promotion, or publicity, or otherwise, the name of Hartford or of
any of its affiliates, or any trademarks, logos or similar
designations of Hartford or any of its affiliates. CS agrees that
it will not make any official press release, announcement or other
form of publicity relating to the transactions which are subject to
this Agreement without first obtaining in each case the agreed prior
written consent of Hartford. CS shall not use Hartford's name,
trademarks or logo or the name of any affiliated company in any way
or manner not specifically authorized in writing in advance by
Hartford. CS may include Hartford's name in its list of customers.
22.6 A waiver of a breach or default under this Agreement shall not be a
waiver of any other or subsequent breach or default. The failure or
delay by either Party in enforcing compliance with any term or
condition of this Agreement shall not constitute a waiver of such
term or condition unless such term or condition is expressly waived
in writing.
22.7 Captions contained in this Agreement are for reference purposes only
and do not constitute part of this Agreement
22.8 Neither Party shall be deemed to have breached this Agreement by
reason of any delay or failure in its performance arising from acts
beyond its control. Such acts shall include, but will not be limited
to: act of God; act of war; riot; epidemic; fire; flood or other
disaster; act of government, including governmental regulations
superimposed after the fact; & traffic control caused delays, strike
or lockout; communication line failure; power failure, except that
any such disaster shall not excuse CS from carrying out its disaster
recovery obligations pursuant to Section 4.7 above, including but
not limited to having made adequate up-to-date back-up copies and
having provided Hartford with complete access to the fully
operational MCM System at the Warm Site within forty-eight (48)
hours after CS has knowledge of such disaster.
22.9 In the event of a breach or threatened breach by either Party of any
of the provisions of this Agreement, the injured Party, in addition
to any other remedies available to it under law, shall be entitled
to seek all equitable relief available including an injunction
restraining the other Party from the performance of acts which
constitute a breach of this Agreement, and such other Party agrees
not to raise adequacy of legal remedies as a defense thereof.
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22.10 In any litigation or arbitration between the Parties, the prevailing
Party shall be entitled to reasonable attorney's fees and all costs
of proceeding incurred in enforcing this Agreement.
22.11 All notices which are required to be given or submitted pursuant to
this Agreement shall be in writing and shall be sent by registered
or certified mail, return receipt requested, to the address set
forth herein or to such other address as CS or Hartford may from
time to time designate.
22.12 Each Party agrees to perform its obligations hereunder in accordance
with all applicable laws, rules, and regulations now or hereafter in
effect.
22.13 CS will comply with all applicable laws and statutes, as well as the
rules and regulations of all relevant regulatory boards, agencies
and commissions relating to the rendering of services under this
contract.
22.14 Duplicate originals of this Agreement shall be executed, each of which
shall be deemed an original but both of which together shall
constitute one and the same instrument.
22.15 Each Party represents that it has full power and authority to enter
into and perform this Agreement, and the person signing this
Agreement on behalf of it has been properly authorized and empowered
to enter into this Agreement.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT AND UNDERSTAND AND
AGREE TO BE BOUND BY ITS TERMS, CONDITIONS, AND PRICES.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective
the day and year first above written.
Hartford CS
BY: /s/ BY: /s/
---------------------------- ---------------------------
(Authorized Signature) (Authorized Signature)
Xxxxxx Xxxxxx Xxxxxx Xxxx
---------------------------- ---------------------------
(Name) (Name)
Assistant Vice President President and CEO
---------------------------- ---------------------------
(Title) (Title)
34
