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EXHIBIT 10.20
*** Text Omitted and Filed Separately
CONFIDENTIAL TREATMENT REQUESTED
Under 17 C.F.R. Sections 200.80(b)(4)
and 230.406
BUSINESS AND TECHNOLOGY
STRATEGIC ALLIANCE AGREEMENT
This STRATEGIC ALLIANCE AGREEMENT (the "AGREEMENT") is made as of November 15,
1999 (the "Effective Date"), by and between CHANNELPOINT, INC., a Delaware
corporation having its place of business located at 00000 Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxxxxxx, Xxxxxxxx 00000 ("CHANNELPOINT"), and GE FINANCIAL ASSURANCE
HOLDINGS, INC., a Delaware corporation having its place of business located at
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 ("GEFA"or "CLIENT" on Services
Addendum).
RECITALS
A. ChannelPoint is in the business of, among other things, providing (1) an
Internet-based electronic commerce exchange service that provides insurance
brokers and customers with access to quotes, proposals and policy information
and enables the purchase of insurance policies via a website established and
operated by ChannelPoint (the "COMMERCE EXCHANGE" or the "SERVICE"), and (2) the
Insure(tm) software platform marketed and distributed by ChannelPoint under
ChannelPoint's software license agreements (the "INSURE PLATFORM").
B. GEFA, through any GEFA Affiliate (as hereinafter defined), is in the
business of underwriting and issuing insurance policies, including fixed and
variable annuities and fixed and variable life insurance, long term care
insurance, and insurance policies sold through the worksite channel (the
"INSURANCE PRODUCTS"). References to GEFA herein shall include GEFA Affiliates,
except where the context otherwise requires.
C. GEFA and ChannelPoint desire to enter into an agreement whereby (1)
ChannelPoint will provide GEFA an Internet-based set of services (including
without limitation those services marketed by ChannelPoint under the trademarks
"Commerce(TM)" and "Insure(TM)" that provide GEFA insurance distribution
channels and its customers with access to quotes, proposals and policy
information to enable the purchase and administration of insurance policies via
a website established and operated by ChannelPoint; (2) ChannelPoint will create
and provide electronic commerce portals to the Commerce Exchange that are
branded with the GEFA trademarks (on an exclusive basis) and include GEFA's
quote, proposal and insurance plan information (the "BRANDED PORTALS"),
including Branded Portals through which all or a subset of the Insurance
Products are offered for sale (the "PRIVATE PORTALS") and Branded Portals
through which a subset of the Insurance Products and the insurance products of
third party carriers are offered for sale (the "SEMI-PRIVATE PORTALS"); (3)
ChannelPoint will include GEFA's quote, proposal and insurance plan information
in Internet portals to the Commerce Exchange, including broker portals and
portals made available to GEFA and other distribution intermediaries (the "OPEN
PORTALS"); and (4) GEFA will use ChannelPoint as GEFA's preferred electronic
service provider authorized to market and submit for sale, via the Service,
Insurance Products underwritten and issued by GEFA.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions of this Agreement, the parties to this Agreement agree
as follows:
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AGREEMENT
1. APPOINTMENT
1.1 ELECTRONIC SERVICE PROVIDER. GEFA hereby designates ChannelPoint as
GEFA's preferred (as further defined in Section 1.4 below) electronic service
provider authorized to provide technology and market, solicit and submit the
Insurance Products for sale via the Internet through the Service and
ChannelPoint hereby accepts such appointment, subject to the terms and
conditions of this Agreement. GEFA may at any time alter coverages, provisions
or exclusions of the Insurance Products or discontinue or replace Insurance
Products without the consent of ChannelPoint. GEFA agrees to give ChannelPoint
written notice of such modifications in a timely manner.
1.2 LIMITS ON AUTHORITY. ChannelPoint is authorized to obligate GEFA only
to the extent (a) provided by this Agreement, (b) set forth in the published
rules, procedures and practices of GEFA and (c) as may be authorized in writing
by an officer of GEFA. ChannelPoint is not authorized to (i) make, alter or
waive any of the rates, terms or conditions of any of GEFA's Insurance Products,
including forms, policies, contracts or advertising materials, (ii) bind
coverage under an Insurance Product without GEFA's express prior written
approval, (iii) sign any contract on behalf of GEFA or its affiliates or (iv)
prepare or distribute any promotional or descriptive material relating to this
Agreement or any Insurance Products without first obtaining GEFA's written
approval of such materials.
1.3 NO RESTRICTIONS. ChannelPoint may form alliances with any third party
(including other insurance carriers) in which ChannelPoint makes such third
parties' insurance products and content available through the Service, and,
subject to the provisions of Section 1.4 below, GEFA may authorize other third
parties as electronic service providers authorized to market, solicit and submit
and products of GEFA (including without limitation the Insurance Products) for
sale via the Internet or other electronic networks.
1.4 PREFERRED PROVIDER. In connection with ChannelPoint's appointment as a
"Preferred" electronic service provider, GEFA shall refer to ChannelPoint as a
"Preferred" electronic service provider in any press releases, advertisements or
promotional materials that relate to any electronic commerce initiatives
undertaken by GEFA in connection with the Services under this Agreement.
2. COMMERCE EXCHANGE SERVICES AND GEFA'S USE OF THE SERVICE
2.1 ACCESS TO THE SERVICE. ChannelPoint hereby grants to GEFA and its
independent and dedicated brokers, sales agents and other GEFA distribution
intermediaries (collectively, the "GEFA SALES TEAM") the non-exclusive,
non-transferable right and license during the term of this Agreement to access
and use the Service through the Branded Portals for the sole purpose of
providing insurance procurement services to GEFA customers. Promptly upon the
delivery of any Branded Portals,, ChannelPoint shall issue to GEFA a user name
and Password to enable access to the Branded Portals. GEFA shall treat the user
name and Password as ChannelPoint's Confidential Information (as defined in
Section 7 below) and make such information available only to GEFA employees and
the GEFA
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Sales Team for use as permitted under this Agreement. Use of the Service shall
be subject to the terms and conditions of use and the privacy policy applicable
to all users of the Services, as posted on the Commerce Exchange.
2.2 GEFA ENROLLMENT. To the extent commercially reasonable, GEFA agrees and
shall use reasonable efforts to cause other members of the GEFA Sales Team to
agree to use only the Service to sell Insurance Products to all customers that
have received quotes or sales proposals generated by the Service (a "LEAD");
provided, however, that enrollment of Leads shall be using GEFA's standard
procedures until the Service includes direct enrollment capability. ChannelPoint
will notify GEFA upon the commercial availability of enrollment capabilities.
Thereafter, to the extent commercially reasonable, enrollment of Leads shall be
completed only through the Service. GEFA shall, on or before the fifteenth
(15th) day of each month, provide to ChannelPoint a report listing all Insurance
Products sold to Leads during the prior month, including the associated gross
premiums and other relevant information. Any Leads that subsequently purchase
Insurance Products shall be deemed "Policyholders" under this Agreement. In
addition, the parties shall comply with any special tracking, reporting or
reconciliation procedures as may be reasonably requested by ChannelPoint.
ChannelPoint may examine GEFA's records as provided in Section 5.4 below to
determine the accuracy of GEFA's report and GEFA's compliance with this Section
2.2.
2.3 SUPPORT AND INSURE PLATFORM MAINTENANCE. ChannelPoint shall provide
second-line support via email (at xxxxxxx@xxxxxxxxxx.xxx) and telephone (at a
support telephone number to be provided to GEFA by ChannelPoint) to GEFA and the
GEFA Sales Team relating to the authorized use of the Service and the Insure
Platform, such support to be provided during the hours of 6:00 a.m. until 6:00
p.m. Mountain Time. GEFA or the GEFA Sales Team shall provide direct first-line
support to end-user customers of Insurance Products and shall use commercially
reasonable efforts to respond to all customer service inquiries promptly after
receipt. All written customer support communications relating to the Service
shall state the Service is provided or powered by ChannelPoint and shall include
a reference to "Commerce"(tm) or such other brand designations specified by
ChannelPoint from time-to-time. In consideration of the Insure Platform Fees
described in Section 5.1 below, ChannelPoint shall provide all updates,
modifications, enhancements, error corrections and new versions or releases of
the Insure Platform which are generally made available to other participants in
ChannelPoint's Insure maintenance program at no charge.
2.4 SERVICE DESCRIPTION. In consideration of the Exchange Service Fees (as
defined in Section 5.1 below), ChannelPoint will deliver the Branded Portals
which include the basic core functionality and other elements specified in
Exhibit A that are commercially available from ChannelPoint as of Effective
Date, and any modifications made or future capabilities and features added and
made commercially available by ChannelPoint from time-to-time. GEFA will specify
layout and configuration of the Branded Portals and will have the sole
discretion in the selection of Insurance Products offered through the Branded
Portals and in the selection of the insurance products offered by third party
carriers offered through the Semi-Private Branded Portals. Substantially all
features and functionality included in Exhibit A will be provided to GEFA within
the scope of the Exchange Service Fees. ChannelPoint reserves the right to
increase the level of the Exchange Service Fee as the parties
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create more detailed specification documents and if increased functionality and
enhancements are added to the ChannelPoint Exchange; provided that such
increases shall be subject to GEFA's consent (not to be withheld unreasonably).
2.5 INSURE PLATFORM LICENSE. In consideration of the Insure Platform Fees
(as described in Section 5.1 below), ChannelPoint hereby grants to GEFA a
non-exclusive perpetual, non-transferable world-wide right and license to use
the Insure Platform for GEFA's internal back-office data processing for all
Insurance Products. The terms of the licenses granted are specified in Exhibit B
(the "INSURE PLATFORM AGREEMENT").
2.6 PLATFORM CUSTOMIZATION SERVICES. In consideration of the Professional
Service Fees (as described in Section 5.2), ChannelPoint will perform services
relating to (a) implementation of any Branded Portal elements not included in
Exhibit A; (b) the import and repurposing of GEFA Content in data centers on the
Commerce Exchange; (c) additional unique and/or proprietary GEFA requirements,
features and functionality that are either not part of the Commerce Exchange;
and (d) the integration of the Insure Platform licensed to GEFA under this
Agreement with and into the Commerce Exchange and GEFA data centers
(collectively, the "PLATFORM CUSTOMIZATION SERVICES"). Either party may propose
Platform Customization Services, and if agreed as to scope, cost and schedule,
the parties shall execute a written Statement of Work, which shall be subject to
the terms of the services addendum attached hereto as Exhibit C (the "SERVICES
ADDENDUM").
2.7 HOSTING SERVICES. ChannelPoint will host the Branded Portals for the
sole use and benefit of GEFA in accordance with the Service Level Agreement
attached to this Agreement as Exhibit D. ChannelPoint will not charge a separate
hosting fee for these services during the term of this Agreement.
2.8 PRODUCT IMPROVEMENTS AND ENHANCEMENTS. The Commerce Exchange and Insure
Platform will generally evolve to include new features and functionality in
accordance with the ChannelPoint Service roadmap attached hereto as Exhibit I
(the "SERVICE ROADMAP"); GEFA acknowledges that the Service Roadmap is provided
for information purposes only and does not represent a binding commitment on
behalf of ChannelPoint; provided, however, that ChannelPoint and GEFA shall
cooperate and shall devote resources and experience to define, prioritize and
plan future enhancements to the Commerce Exchange and the Insure Platform that
will become part of ChannelPoint's general product releases ("SERVICE
ENHANCEMENTS"), in accordance with the procedures specified in Exhibit J ("JOINT
PLANNING ACTIVITIES"). If ChannelPoint deviates from the Service Roadmap or
fails to develop any features or functionality currently included in the Service
Roadmap, all fees previously paid are fully earned and non-refundable pursuant
to Section 5 and ChannelPoint will not be obligated to provide any refunds or
other concessions upon such failure, except as set forth in Section 5.2(b).
ChannelPoint will bear the development costs associated with Service
Enhancements or any enhancements or features made generally available by
ChannelPoint to all customers, whether or not such Service Enhancements or
features were suggested by GEFA. ChannelPoint will work with GEFA, as part of
the Consulting Services included within Exhibit H and under Section 4.5 below,
to develop GEFA-specific enhancements and modifications to the Commerce
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Exchange and Insure Platform, subject to the terms of the Services Addendum and
the payment of Professional Service Fees under Section 5.2 below.
3. BRANDING, MARKETING AND OTHER COOPERATIVE ACTIVITIES
3.1 BRANDING. The Branded Portals licensed to GEFA shall be identified and
branded in accordance with the provisions of Section 6.1 below, provided that
all permitted use of the Branded Portal by or on behalf of GEFA shall bear
co-branding of ChannelPoint throughout, in form reasonably approved by
ChannelPoint, such as "Powered by ChannelPoint" with ChannelPoint logos and
other related marking.
3.2 DESIGN CONSULTANT. GEFA agrees to serve as ChannelPoint's design
Consultant by using commercially reasonable efforts to (a) provide to
ChannelPoint complete and timely input on products and services provided by
ChannelPoint under this Agreement, (b) provide input from the GEFA Sales Team
and GEFA's customers relating to the Service, including any customer service
comments and complaints and (c) participate in marketing events as specified in
the Marketing and Sales Plan, including participation in user group activities.
In consideration for GEFA's efforts as ChannelPoint's Primary Design Consultant
and the financial commitments made to ChannelPoint under Section 5, GEFA will be
given preferred status as ChannelPoint's Primary Design Consultant with regard
to the Insurance Products and substantially similar products. As ChannelPoint's
Primary Design Consultant, GEFA may elect to (i) become the alpha test site for
any Service enhancements except for Service enhancements constituting features
specific to third party design Consultants or made at the sole suggestion of
third party design Consultants, and (ii) participate in ChannelPoint's Beta test
programs for all future releases of the Service made by ChannelPoint.
3.3 MARKETING AND SALES PLAN. The parties agree to work together to develop
a marketing and sales plan within thirty (30) days of the Effective Date that
materially meets the mutual objectives of both parties (the "MARKETING AND SALES
PLAN"). The Marketing and Sales Plan is intended to provide quantifiable
measures of the parties' success in achieving their shared marketing objectives.
Such measures shall be evaluated on a periodic basis, but not less than monthly.
Upon mutual written agreement to the Marketing and Sales Plan, the Marketing and
Sales plan shall be included in this Agreement as an Exhibit.
3.4 JOINT PRESS RELEASE. The parties will cooperate in good faith in
creating a mutually agreed upon joint press release and other public
correspondence concerning this Agreement for simultaneous national and local
release as soon as possible after the Effective Date. Neither party will issue a
press release or otherwise publicize the terms of this Agreement without the
prior written consent of the other party, except as otherwise required by law,
including any description of this transaction required in any filing with the
Securities and Exchange Commission in connection with a public offering of a
party's capital stock.
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4. GEFA CONTENT, SERVICES AND OWNERSHIP
4.1 CONTENT LICENSING. GEFA will, at its own expense, generate and deliver
to ChannelPoint certain Insurance Product information set forth in Exhibit E in
a format specified therein (the "GEFA CONTENT"). For the term of this Agreement,
GEFA hereby grants ChannelPoint a royalty-free, worldwide license with right to
sublicense to reproduce, distribute, publicly perform and publicly display the
GEFA Content throughout the Commerce Exchange via the Internet as set forth in
Exhibit F (the "LICENSED USES"). GEFA may amend Exhibit F to include changes
mandated by regulatory compliance or as it otherwise deems necessary from
time-to-time upon reasonable advanced written notice to ChannelPoint.
ChannelPoint may make a reasonable number of archival copies of the GEFA
Content. Title to and ownership of all intellectual property rights of the GEFA
Content shall remain with GEFA or its third party licensors.
4.2 GEFA CONTENT MANAGEMENT. ChannelPoint shall designate a ChannelPoint
representative to whom GEFA shall direct any requests regarding the GEFA
Content. GEFA will be solely responsible for creating, managing, editing,
reviewing, testing, deleting and otherwise controlling the GEFA Content via the
procedures set forth below. ChannelPoint shall deliver to GEFA certain tools and
API's to enable GEFA to implement and manage all changes to the GEFA Content
accessible via the Branded Platforms (the "CHANNELPOINT TOOLS"). ChannelPoint
hereby grants GEFA a royalty-free, worldwide license to use the ChannelPoint
Tools during the Term solely to manage the GEFA Content. Upon conversion of the
GEFA Content and any updates thereto, GEFA shall verify that all rating and
similar algorithms that are part of the GEFA Content produce correct results.
Except for any transformation required to convert the content to ChannelPoint's
proprietary data format, ChannelPoint shall not modify or alter the GEFA Content
without GEFA's written consent. GEFA shall be solely responsible for any
liability associated with ChannelPoint's publication and distribution of the
GEFA Content, except to the extent that ChannelPoint, or any third party who
accesses the GEFA Content other than through the ChannelPoint Tools licensed to
GEFA, makes changes or alterations to the GEFA Content that are not approved by
GEFA. ChannelPoint has no obligation to GEFA, and undertakes no responsibility,
to review the GEFA Content to determine whether any such content is accurate or
may incur liability to third parties, provided that, if ChannelPoint becomes
aware of any inaccuracies or potential liabilities associated with the GEFA
Content, ChannelPoint will promptly notify GEFA thereof. Notwithstanding
anything to the contrary herein, if it comes to the attention of ChannelPoint
that any GEFA Content may, in ChannelPoint's sole reasonable opinion, create
liability for ChannelPoint, GEFA agrees that ChannelPoint may remove such GEFA
Content from its systems upon providing written notice to GEFA.
4.3 CHANNELPOINT CONTENT AND CARRIER PLUG-INS. ChannelPoint has acquired
and developed, and intends to continue to acquire and develop, a body of
content, including without limitation, insurance product content, rules,
algorithms, procedures and policy materials (the "CHANNELPOINT CONTENT")
comprised of materials that were either licensed from third party carriers to
ChannelPoint, or developed by ChannelPoint. GEFA and ChannelPoint intend that
certain of the ChannelPoint Content may be made available via Semi-Private
Branded Platform as mutually agreed upon by GEFA and ChannelPoint in accordance
with Section 2.4 above. In this event, the parties agree
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that ChannelPoint shall have the right to solicit third party carriers to make
their content available to enable electronic distribution of such carrier's
insurance products through the Branded Platform ("Carrier Plug-Ins") subject to
Exchange Service Fees payable to ChannelPoint by GEFA pursuant to Section 5.1.
Title to and ownership of all intellectual property rights of the ChannelPoint
Content shall remain with ChannelPoint or its third party licensors.
4.4 OPEN PORTALS AND COMMERCE EXCHANGE SERVICES. In connection with
ChannelPoint's operation of the Commerce Exchange, ChannelPoint shall:
(a) include the GEFA Content in the Service through Open Portals as
permitted under Exhibit F; provided, however, that GEFA acknowledges that,
subject to Exhibit F, ChannelPoint shall retain sole editorial control of the
appearance and format of the Open Portals;
(b) make available all computer hardware and software,
telecommunications equipment and Internet access equipment and services required
for operation of the Service, the Branded Portals and Open Portals, as
ChannelPoint reasonably deems necessary; and
(c) make the Service generally available to GEFA and the GEFA Sales
Team and, if applicable, end users in substantial accordance with ChannelPoint's
Service Level Agreement.
4.5 CONSULTING SERVICES. In consideration for the payment of Consulting
Service Fees specified in Section 5.2 below, ChannelPoint will provide
consulting services to GEFA including education, training, installation,
services, diagnostics, requirements assessments, ratings, configuration
assistance, reporting data extract, systems integration, testing and other
services relating to GEFA's use of the Service (the "CONSULTING SERVICES"),
subject to the terms of the Services Addendum. ChannelPoint agrees to provide
the Consulting Services summarized in Exhibit H as part of ChannelPoint's
initial Consulting Services engagement.
4.6 OWNERSHIP.
(a) ChannelPoint Property. As between GEFA and ChannelPoint,
ChannelPoint or its third party suppliers will retain sole ownership of all
intellectual property rights in and to the ChannelPoint Marks, the ChannelPoint
Content, the ChannelPoint Tools, the Open Portals, the Insure Platform, the
Branded Portals and the Commerce Exchange, including all software, content,
documentation, technology and trademarks used in connection with the Services
and all Service Enhancements thereto, subject to GEFA's ownership of the GEFA
Property as provided in subsection (b) below (the "CHANNELPOINT PROPERTY"). The
ChannelPoint Property includes any modifications, enhancements or derivative
works made to the ChannelPoint Property during the term of this Agreement,
whether or not made in response to GEFA suggestions or requirements. Except for
licenses expressly granted to GEFA under this Agreement, GEFA is not granted any
other intellectual property rights, or any other rights, franchises or licenses,
with respect to the ChannelPoint Property.
(b) GEFA Property. As between GEFA and ChannelPoint, GEFA will retain
sole ownership of all intellectual property rights in and to the GEFA Marks, the
GEFA Content and any
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other information, content, documentation, technology and trademarks that GEFA
supplies or licenses to ChannelPoint under the terms of this Agreement (the
"GEFA PROPERTY"). The GEFA Property includes any modifications, enhancements or
derivative works made to the GEFA Property during the term of this Agreement,
whether or not made in response to ChannelPoint suggestions or requirements.
Except for licenses expressly granted to ChannelPoint under this Agreement,
ChannelPoint is not granted any other intellectual property rights, or any other
rights, franchises or licenses, with respect to the GEFA Property.
(c) Other Intellectual Property. Ownership of intellectual property
rights in and to any technology (other than the GEFA Property and the
ChannelPoint Property) developed, made, authored or conceived by either
ChannelPoint or GEFA, jointly or alone, in connection with and during the term
of this Agreement will be as specified in the Services Addendum or Development
Agreement between the parties under which such intellectual property is
developed, made, authored or conceived. In the event any such technology is
developed, made, authored or conceived by either ChannelPoint or GEFA, jointly
or alone, in connection with and during the term of this Agreement, but not
subject to the provisions of any Services Addendum or as part of the Service
Enhancements, all intellectual property rights in and to such technology shall
be (i) solely owned by ChannelPoint, in the case of technology developed, made,
authored or conceived solely by ChannelPoint; (ii) solely owned by GEFA, in the
case of technology developed, made, authored or conceived solely by GEFA; or
(iii) jointly owned by ChannelPoint and GEFA, in the case of technology
developed, made, authored or conceived jointly by ChannelPoint and GEFA
personnel (including its employees and consultants) for which, where relevant,
such personnel would be considered joint inventors under United States Patent
Act or joint authors under the United States Copyright Act.
4.7 DATA ACCESS AND OWNERSHIP. All use and traffic data concerning all
Policyholders or Leads collected by ChannelPoint through the Service, including
but not limited to impression data, usage summaries and click through activity
collected by ChannelPoint ("IMPRESSION DATA") shall be the sole and exclusive
property of GEFA. ChannelPoint shall be entitled to capture and collect
Impression Data in its operation of the Commerce Exchange and the hosting of the
Branded Portals and ChannelPoint may use Impression Data concerning
Policyholders or Leads in any aggregate form that does not identify any
particular Policyholder for any lawful purpose without a duty of accounting to
GEFA . ChannelPoint will, at no charge to GEFA, provide GEFA with access to (in
a format and frequency mutually agreed to by ChannelPoint and GEFA) all
Impression Data and other Policyholder information collected by ChannelPoint in
connection with the generation of quotes or proposals for a Policyholder or the
enrollment of any Policyholder. ChannelPoint will, at no charge to GEFA, provide
GEFA with monthly reports of Impression Data collected by ChannelPoint in
connection with uses of the Service other than on behalf of Policyholders on an
aggregated basis ("REPORTS") that are (a) ChannelPoint standard or generally
available reports or (b) other Reports that ChannelPoint provides to other
customers at no charge that are not unique or proprietary to such customers.
ChannelPoint will use commercially reasonable efforts to provide other special
Reports requested by GEFA from time-to-time in consideration of a service fee
equal to ChannelPoint's fully burdened costs in creating and providing such
Reports. All Reports provided by ChannelPoint hereunder shall not (i) identify
any particular individual, broker, agent or insurance carrier, (ii) violate
ChannelPoint's
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privacy policy or any applicable law or regulation or (iii) violate the terms of
any agreement between ChannelPoint and any third party; provided that
ChannelPoint will not enter into agreements with third parties exclusively
preventing GEFA from receiving data generated through through the Commerce
Exchange.
5. COMPENSATION AND REPORTING
5.1 EXCHANGE SERVICE FEES AND RELATED CHARGES.
(a) Calculation of Fees. GEFA shall pay ChannelPoint the Exchange
Service Fees consisting of fees and charges for access to the Commerce Exchange,
the Insure Platform license and maintenance services (the "INSURE PLATFORM
FEES"), p.d., q. new applications processing fees and distribution fees for
sales of the Insurance Products through the Commerce Exchange, all as further
defined and established in Section 1 of Exhibit G attached hereto, subject to
the provisions of Sections 5.6 and 5.7 below, and provided that ChannelPoint has
all licenses from applicable regulatory authorities required to receive such
payments.
(b) Minimum Fees; Prepayment. GEFA agrees to generate Exchange Service
Fees on a calendar quarterly basis in accordance with the schedule set forth in
Section 1(e) of Exhibit G. GEFA will pay to ChannelPoint a non-refundable
payment equal to each quarterly minimum within thirty (30) days of the beginning
of each calendar quarter during the term of this Agreement beginning January 1,
2000 in prepayment for the minimum Exchange Service Fees due in each such
calendar quarter (the "PREPAYMENT"), recoverable on a dollar-for-dollar basis
against actual Exchange Service Fees generated during such quarter. ChannelPoint
will not be obligated to refund to GEFA any portion of a Prepayment, even if the
Prepayment is not fully recovered during the applicable calendar quarter;
provided, however that GEFA's obligation to make Prepayments and to generate
minimum Exchange Service Fees under this Section 5.1(b) and under Section 1(e)
of Exhibit G after the calendar year 2000 shall be contingent on the mutual
agreement of the parties that GEFA is receiving new business revenue deriving
from the Service sufficient to justify such Prepayments and minimum Exchange
Service Fees. In the event that the parties fail to reach such agreement prior
to December 31 of calendar year 2000 or of any subsequent year during the term,
the parties will cooperate in good faith to establish revised Exchange Service
Fee rates, minimum Exchange Service Fees and a Prepayment schedule for the
following calendar year.
(c) Payment. All Exchange Service Fees will accrue as set forth in
Section 1 of Exhibit G. In the event that the aggregate Exchange Service Fees
accrued by GEFA during any calendar quarter are greater than the corresponding
Prepayment, ChannelPoint shall invoice GEFA for all additional Exchange Service
Fees owed to ChannelPoint on a monthly basis, and GEFA shall pay all additional
Exchange Service Fees owed to ChannelPoint, within thirty (30) days of the date
of ChannelPoint's invoice, such payment to be accompanied by the report
described in Section 5.3.
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5.2 PROFESSIONAL SERVICE FEES.
(a) Calculation of Fees. In consideration for the Consulting Services
and the Platform Customization Services provided by ChannelPoint, GEFA will pay
Professional Services Fees on a time and materials basis in accordance with the
price schedule specified in the Services Addendum. The Professional Services
Fees do not include any expenses for which GEFA reimburses ChannelPoint under
the Services Addendum.
(b) Minimum Fees; Prepayment. GEFA agrees to issue Statements of Work
sufficient to generate Professional Service Fees on a calendar quarterly basis
in accordance with the schedule set forth in Section 2 of Exhibit G. GEFA will
pay to ChannelPoint a non-refundable prepayment equal to (a) the minimum
Professional Service Fees specified in Section 2 of Exhibit G for the calendar
year 1999 within thirty (30) days of the Effective Date in prepayment for the
minimum Professional Service Fees to be paid in the calendar year 1999; and (b)
each quarterly minimum specified in Section 2 of Exhibit G for the calendar
years 2000 through 2004, within thirty (30) days of the beginning of each
calendar quarter during the term of this Agreement beginning January 1, 2000 in
prepayment for the minimum Professional Services to be paid in each such
calendar quarter (the "PREPAYMENT"), recoverable on a dollar-for-dollar basis
against actual Professional Services Fees generated during such time period;
provided, however, that GEFA's obligation to make Prepayments and to generate
minimum Professional Service Fees under this Section 5.2(b) and under Section 2
of Exhibit G after the calendar year 2000 shall be contingent on mutual
agreement of the parties that GEFA is receiving benefit from the Consulting
Services sufficient to justify such Prepayments and minimum Consulting Service
Fees. In the event that the parties fail to reach such agreement prior to
December 31 of calendar year 2000 or of any subsequent year during the term, the
parties will cooperate in good faith to establish a revised minimum Professional
Services Fee and Prepayment schedule for the following calendar year. If any
portion of any Prepayment of Professional Services Fees is not fully recovered
during any time period to which such Prepayment corresponds, no refund shall be
due to GEFA; provided that, if the failure to fully recover the Prepayment does
not result from GEFA's failure to order sufficient services to recover the
Prepayment, but, rather, results from ChannelPoint's failure to staff the number
of personnel required in any issued Statement(s) of Work or other causes
attributable to ChannelPoint, no subsequent Prepayment of Professional Services
Fees shall be due until the prior such Prepayment is fully recovered, and, if
the Agreement is terminated or expires prior to full recovery of such
Prepayment, GEFA shall be entitled to a refund of the amount of the Prepayment
that has not been recovered at the effective date of termination or expiration.
(c) Payment. Once the aggregate Professional Services Fees accrued by
GEFA in any time period specified in subsection (b) above are greater than the
corresponding Prepayment, ChannelPoint shall invoice GEFA for all additional
Consulting Services Fees owed to ChannelPoint on a monthly basis, as provided in
the Services Addendum, payable within thirty (30) days of the date of such
invoice.
5.3 REPORTING AND INVOICING. GEFA agrees to use diligent efforts to track
Policyholders and Leads who have purchased Insurance Products that had been
quoted or purchased through use of
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the Service. On a monthly basis, GEFA shall provide to ChannelPoint a report
listing by insurance broker or client the Insurance Products sold to Leads
during the prior month, specifying the products, associated gross premiums,
commissions or override payments, designated brokers and other relevant
information relating to such Leads. In addition to the invoices provided to GEFA
under Sections 5.1(c) and 5.2(c) above, ChannelPoint will provide GEFA with
monthly reports listing those insurance brokers and clients that have obtained
quotes or purchased Insurance Products through the Service during the prior
ninety-day (90) period. In addition, the parties shall comply with any special
tracking, reporting or reconciliation procedures agreed to by the parties, if
any.
5.4 AUDIT RIGHTS. ChannelPoint will have the right to engage, at its own
expense, an independent auditor to examine GEFA's records no more frequently
than once per year as may be necessary to determine the correctness of any
report or payment made under this Agreement and to verify GEFA's compliance with
the terms of Exhibit B. GEFA will have the right to engage, at its own expense,
an independent auditor to examine ChannelPoint's records no more frequently than
once per year as may be necessary to determine the correctness of any invoice
provided to GEFA under this Agreement and to verify the adequacy of
ChannelPoint's regulatory compliance procedures with regard to the Insurance
Products.
5.5 TAXES. All fees owed by GEFA to ChannelPoint are exclusive of, and GEFA
shall pay, all sales, use, excise and other taxes that may be levied upon GEFA
in connection with the sale of Insurance Products, the provision of Consulting
Services or other transactions contemplated under this Agreement, except for
taxes based on ChannelPoint's net income.
5.6 ADJUSTMENTS. Both parties acknowledge that the pricing mechanisms and
conditions specified in Section 1(a) of Exhibit G are preliminary in nature and
that certain assumptions have been made to justify the pricing schedule.
Accordingly, the parties agree to negotiate adjustments to the pricing schedule
in good faith (a) prior to the beginning of the third quarter of the calendar
year 2000, (b) at the end of the calendar year 2000, and (c) on an annual basis
thereafter. Any adjustments will be mutually agreed upon based upon
ChannelPoint's revenues generated from the pricing mechanism and the cost
savings, revenues and other benefits derived from GEFA's use of the Services,
the Insure Platform and the p.d.,q platform, including the sales achieved
through the Open Portals and the Branded Portals.
5.7 [...***...].
* CONFIDENTIAL TREATMENT REQUESTED
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6. TRADEMARKS
6.1 LICENSE TO GEFA MARKS. GEFA grants to ChannelPoint a non-exclusive,
nontransferable, royalty-free, worldwide license to use the GEFA Marks (as set
forth in Exhibit F) (i) on the Service to denote that the GEFA Content is owned
by GEFA and as required to publicly display hypertext links as part of the
Service that link to appropriate areas of GEFA's web site and to online
directory information available on GEFA's web site or through a third party web
site designated by GEFA; and (ii) to promote the Service as containing the GEFA
Content in promotional materials including but not limited to brochures,
presentations, advertising, and marketing; provided that: (A) ChannelPoint shall
at all times use the GEFA Marks in accordance with the permitted uses set forth
in Exhibit F, or as otherwise explicitly approved in writing by GEFA; (B) the
nature and quality of all aspects of any Commerce Exchange content which
includes the GEFA Marks, and of all Promotional Materials using the GEFA Marks,
shall conform to quality standards provided in writing to ChannelPoint by GEFA
from time to time; (C) ChannelPoint shall not engage in any action associated
with the GEFA Marks that adversely affects the good name, good will, image or
reputation of GEFA; (D) ChannelPoint shall cooperate with GEFA in facilitating
GEFA's control of the nature and quality of all aspects of the Service using the
GEFA Marks and of all Promotional Materials using the GEFA Marks, to supply GEFA
with specimens of all uses of the GEFA Marks upon request, and to promptly
discontinue any such uses of the GEFA Marks which GEFA deems inappropriate; (E)
ChannelPoint acknowledges GEFA's ownership of the GEFA Marks, agrees that it
will do nothing inconsistent with such ownership and that all use of the GEFA
Trademarks by ChannelPoint shall inure to the sole benefit of GEFA; (F)
ChannelPoint agrees that nothing in this Agreement shall give ChannelPoint any
right, title or interest in the GEFA Marks other than the right to use the GEFA
Marks in accordance with this Agreement and that it will not attack the title of
GEFA to the GEFA Marks or attack the validity of this Agreement; and (G) all
uses of the ChannelPoint Marks shall be distinct from the GEFA Marks so as to
make distinct commercial impressions.
6.2 LICENSE TO CHANNELPOINT MARKS. ChannelPoint grants to GEFA a
non-exclusive, nontransferable, royalty-free, worldwide license to use the
ChannelPoint Marks (i) to promote the Service and GEFA's relationship with
ChannelPoint, as provided in the Marketing and Sales Plan, in promotional
materials including but not limited to brochures, presentations, advertising,
and marketing; and (ii) to publicly display hypertext links to the Service from
appropriate areas of the GEFA's web site; provided that: (A) GEFA shall at all
times use the ChannelPoint Marks in accordance with ChannelPoint's standard
trademark usage guidelines provided to GEFA, or as otherwise explicitly approved
in writing by ChannelPoint; and (B) GEFA shall not engage in any action
associated with the ChannelPoint Marks that adversely affects the good name,
good will, image or reputation of ChannelPoint; (C) GEFA shall cooperate with
ChannelPoint in facilitating ChannelPoint's control of the nature and quality of
all aspects of the Promotional Materials using the ChannelPoint Marks, to supply
ChannelPoint with specimens of all uses of the ChannelPoint Marks upon request,
and to promptly discontinue any such uses of the ChannelPoint Marks which are in
violation of the ChannelPoint's usage guidelines; (D) GEFA acknowledges
ChannelPoint's ownership of the ChannelPoint Marks, agrees that it will do
nothing inconsistent with such ownership and that all use of the ChannelPoint
Trademarks by GEFA shall inure to the sole benefit of ChannelPoint;
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(E) GEFA agrees that nothing in this Agreement shall give GEFA any right, title
or interest in the ChannelPoint Marks other than the right to use the
ChannelPoint Marks in accordance with this Agreement and that it will not attack
the title of ChannelPoint to the ChannelPoint Marks or attack the validity of
this Agreement; and (F) all uses of the GEFA Marks shall be distinct from the
ChannelPoint Marks so as to make distinct commercial impressions.
7. CONFIDENTIALITY
7.1 DEFINITION. "CONFIDENTIAL INFORMATION" means confidential and
proprietary information which relates to GEFA's or ChannelPoint's business,
products and services, including but not limited to data, trade secrets,
discoveries, ideas, concepts, know-how, techniques, software, business
activities and operations, reports, studies and other technical and business
information, including personal Policyholder information. Notwithstanding the
foregoing, Confidential Information shall not include any information which (a)
is known by the receiving Party at the time of disclosure, free of any
obligation to keep it confidential, as evidenced by credible evidence; (b) is or
becomes publicly available through authorized disclosure by the owner of such
information; (c) is rightfully obtained by the receiving Party from a third
party who has the right to transfer or disclose it; or (d) is independently
developed by receiving Party without reference to Confidential Information of
the other Party.
7.2 NO DISCLOSURE. Each Party shall keep in confidence during the term of
this Agreement and for a period of five (5) years after termination or
expiration of this Agreement all Confidential Information of the other party and
that it will not directly or indirectly disclose to any third party or use for
its own benefit, or use for any purpose other than the performance of its
obligations under this Agreement, any Confidential Information it receives from
the other party; provided, however that obligations concerning confidentiality
of personal information relating to any Policyholder or Lead will survive in
perpetuity. Each party shall use reasonable care to protect the other Party's
Confidential Information, and in no event less than the same degree of care as
it would employ with respect to its own information of like importance which it
does not desire to have published or disseminated. Each party may make
Confidential Information of the other party available to those of its employees,
contractors or service providers who have a need to know such information and
who are subject to binding use and disclosure restrictions at least as
protective as those set forth herein. Notwithstanding the foregoing, either
party may make disclosures as lawfully required or requested by a court of law,
or any governmental entity or agency in connection with seeking any governmental
or regulatory approval or in connection with a judicial proceeding, provided
that reasonable measures are taken to limit such disclosure and to obtain
confidential treatment or a protective order and the disclosing party is allowed
to participate in such efforts.
7.3 REMEDIES. GEFA and ChannelPoint each agree that any breach of this
Section 7 would cause irreparable harm or injury to the other Party
significantly in excess of the value received by such other party pursuant to
this Agreement, and that such other party shall be entitled to declaratory,
injunctive or other equitable relief, in addition to any other legal or
equitable remedies it may have, for any such breach.
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8. WARRANTIES AND COVENANTS
8.1 GEFA WARRANTIES. GEFA represents and warrants that:
(a) neither the GEFA Content or any portion thereof in connection with
the Service will: (i) infringe or violate any third party's copyright, patent,
trademark, trade secret or other proprietary rights; (ii) violate any law,
statute, ordinance or regulation, including without limitation the laws and
regulations governing export control; (iii) be defamatory or trade libelous;
(iv) be pornographic or obscene; (v) be outdated or inaccurate in any way that
could mislead, in any material respect, any applicant for Insurance Products or
user of the Services; or (vi) to the extent such may contain code or other
electronic files, contain viruses, trojan horses, worms, time bombs, cancelbots
or other similar harmful or deleterious routines;
(b) all members of the GEFA Sales Team who have access to the Service
and are GEFA employees are fully licensed by the relevant regulatory
authorities to sell insurance products, except to the extent that any failure
to acquire such licenses does not have a material adverse affect on
ChannelPoint or the Service;
(c) it will use best efforts to ensure that all GEFA Sales Team
members who are not GEFA employees are fully licensed by the relevant
regulatory authorities to sell insurance products, except to the extent that
any failure to acquire such licenses does not have a material adverse affect on
ChannelPoint or the Service; and
(d) GEFA will promptly notify ChannelPoint if it receives any
complaint or if it is served with any paper or has knowledge of any legal or
administrative action, investigations or proceeding against ChannelPoint or
involving ChannelPoint.
8.2 CHANNELPOINT WARRANTIES. In connection with its operation of the
Service, ChannelPoint represents and warrants that:
(a) it will not hold itself out as an employee, partner, joint
venturer or officer of the GEFA and, except in the manner and for the purposes
specifically provided in this Agreement, ChannelPoint will not hold itself out
as an agent of GEFA;
(b) it will comply with all applicable federal, state or other laws
and regulations governing the sale of the Insurance Products on the Service as
contemplated under this Agreement, including by holding as a corporate entity,
and causing its employees to hold, all licenses under applicable insurance and
securities regulations in all applicable jurisdictions if required to operate
the Commerce Exchange as contemplated hereunder, except to the extent any
failure to comply with such laws or regulations does not have a material
adverse effect on GEFA or the Insurance Products;
(c) it will promptly notify GEFA if it receives any complaint or if it
is served with any paper or has knowledge of any legal or administrative
action, investigations or proceeding against GEFA or involving GEFA;
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(d) it will not make any representation, modification, alteration or
waiver in connection with its marketing and solicitation of customers for the
Insurance Products, except as contained in the GEFA Content furnished by GEFA
or as otherwise authorized by GEFA; and
(e) none of the text, pictures, sound, video, code or other content or
data provided by ChannelPoint to GEFA or used in connection with GEFA Marks or
GEFA Content as part of the Service and the Deliverables delivered to GEFA
under the Services Addendum (the "CHANNELPOINT CONTENT") will: (i) infringe or
violate any third party's copyright, patent, trademark, trade secret or other
proprietary rights; (ii) violate any law, statute, ordinance or regulation,
including without limitation the laws and regulations governing export control;
(iii) be defamatory or trade libelous; (iv) be pornographic or obscene; (v) be
outdated or inaccurate in any way that could mislead, in any material respect,
any applicant for Insurance Products or user of the Services; or (vi) to the
extent such content may contain code or other electronic files, contain
viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful
or deleterious routines; provided, however that the foregoing warranties shall
not apply to (A) the GEFA Content, (B) the GEFA Marks or (C) to the extent any
ChannelPoint Content was created in accordance with GEFA specifications or
instructions.
8.3 SERVICE WARRANTY AND DISCLAIMER. ChannelPoint shall make the Service
generally available to GEFA and the GEFA Sales Team and, if applicable, end
users in substantial accordance with ChannelPoint's Service Level Agreement. In
the event of any breach of the foregoing warranty, GEFA's sole remedy and
ChannelPoint's sole obligation shall be as specified in the Service Level
Agreement. Except as provided in Section 8.2 or Section 8.3, CHANNELPOINT
PROVIDES THE SERVICE "AS IS" AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS,
IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Except as specified
herein or in the Service Level Agreement, ChannelPoint does not guarantee
continuous or uninterrupted access to and use of the Service.
9. INDEMNITIES
9.1 GEFA INDEMNITY. GEFA shall defend ChannelPoint and pay any resulting
damages, costs and expenses finally awarded to a third party or paid in
settlement with respect to all claims, suits or proceedings brought by any
third party against ChannelPoint or its directors, officers, agents and
employees arising from (a) any breach of the representations, warranties or
covenants in Section 8.1, or (b) any claims relating to the provision of the
insurance services offered by GEFA or any claims by GEFA's customers or members
of the GEFA Sales Team relating to use of or access to the Service, except to
the extent such claim arose out of any breach of this Agreement by
ChannelPoint. As a condition of the foregoing, ChannelPoint shall (i) promptly
notify GEFA of any indemnifiable claim (ii) give GEFA sole control over the
defense and settlement of such claims; and (iii) provide reasonable cooperation
and assistance to GEFA in conducting its defense, at GEFA's expense; provided,
however, that ChannelPoint may participate in the defense at its expense; and
ChannelPoint's advance written approval is required for any settlement that
imposes any executory obligation on ChannelPoint (beyond the payment of money
in settlement of the claim) and does not unconditionally release ChannelPoint.
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9.2 CHANNELPOINT INDEMNITY. ChannelPoint shall defend GEFA and pay any
resulting damages, costs and expenses finally awarded to a third party or paid
in settlement with respect to all claims, suits or proceedings brought by any
third party against GEFA or its directors, officers, agents and employees
arising from (a) any breach of the warranties in Section 8.2 or (b) any claim
alleging that GEFA's use of the Service in conformance with this Agreement
infringes any third party's intellectual property right or privacy right,
except to the extent such claim arose out of any breach of this Agreement by
GEFA. As a condition of the foregoing, GEFA shall (i) promptly notify
ChannelPoint of any indemnifiable claim; (ii) give ChannelPoint sole control
over the defense and settlement of such claims; and (iii) provide reasonable
cooperation and assistance to ChannelPoint in conducting its defense, at
ChannelPoint's expense; provided, however, that GEFA may participate in the
defense at its expense and GEFA's advance written approval is required for any
settlement that imposes any executory obligation on GEFA (beyond the payment of
money in settlement of the claim) and does not unconditionally release GEFA.
10. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL EITHER PARTY HEREUNDER BE LIABLE TO THE OTHER FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT
OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY, OR ARISING FROM
INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF OR
KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL
EITHER PARTY'S LIABILITY FOR ANY AND ALL CLAIMS OR CAUSES OF ACTION
RELATING TO THIS AGREEMENT EXCEED, IN THE AGGREGATE, [...***...]. THE
EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE LIMITATION
OF LIABILITY SPECIFIED IN THIS SECTION WILL APPLY REGARDLESS OF WHETHER ANY
LIMITED OR EXCLUSIVE REMEDY SPECIFIED IN THIS AGREEMENT FAILS OF ITS
ESSENTIAL PURPOSE.
* CONFIDENTIAL TREATMENT REQUESTED
16
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11. TERM AND TERMINATION
11.1 TERM. The term of this Agreement shall commence on the Effective Date
and continue through December 31, 2004, and shall automatically renew for
one-year periods thereafter unless either party notifies the other party of its
desire to terminate the Agreement at least six (6) months prior to the
expiration of the then-current term.
11.2 TERMINATION. Either party may terminate this Agreement upon the
material default of the other party under this Agreement or under the
Assignment Agreement between First Colony Life Insurance Company and
ChannelPoint dated September 10, 1999 (the "ASSIGNMENT AGREEMENT"), in which
case for the purposes of this Section 11.2, First Colony Life Insurance Company
shall be treated as if it were GEFA, if such default remains uncured for thirty
(30) days following written notice to the defaulting party specifying the
default in reasonable detail and demanding its cure; provided, however, that
this Agreement may be immediately terminated upon written notice in the event
of a default under either Sections 7 or 8 hereof. GEFA may terminate this
Agreement upon thirty (30) days prior written notice to ChannelPoint in the
event of a Change of Control of ChannelPoint. For purposes of this Agreement, a
"CHANGE OF CONTROL" of ChannelPoint means a: (a) sale of all or substantially
all of the assets of ChannelPoint to a Prohibited Company; or (b) merger,
reorganization, consolidation or other transaction pursuant to or as a result
of which 50% or more of the voting power of the surviving company following the
merger, reorganization or consolidation is transferred to a Prohibited Company.
For purposes of this Agreement, a "Prohibited Company" means any company that,
in GEFA's reasonable judgement, (i) is a competitor of GEFA; or (ii) would tend
to tarnish GEFA's image or reputation through association.
11.3 EFFECT OF TERMINATION. Upon any expiration or termination of this
Agreement and upon payment of all outstanding obligations owed by GEFA to
ChannelPoint, ChannelPoint will remove the GEFA Content from its systems,
except for such GEFA Content as ChannelPoint requires for maintenance of its
systems and archival copies. Termination of this Agreement will not affect any
of the terms and conditions of Insurance Products acquired prior to
termination. Sections 4, 5.1 (solely with respect to Exchange Service Fees
payable for Insurance Products sold prior to the date of termination), 5.2
(with respect Professional Service Fees payable for services rendered prior to
the date of termination), 7, 8, 9, 10, 11.3 and 12 shall survive any
termination or expiration of this Agreement.
12. GENERAL PROVISIONS
12.1 GOVERNING LAW. This Agreement will be governed and construed in
accordance with the laws of the State of Colorado without giving effect to
principles of conflict of laws.
12.2 SEVERABILITY; WAIVER. If any provision of this Agreement is held to
be invalid or unenforceable for any reason, the remaining provisions will
continue in full force without being impaired or invalidated in any way. The
parties agree to replace any invalid provision with a valid provision that most
closely approximates the intent and economic effect of the invalid provision.
The waiver by either party of a breach of any provision of this Agreement will
not operate or be interpreted as a waiver of any other or subsequent breach.
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12.3 HEADINGS. Headings used in this Agreement are for reference purposes
only and in no way define, limit, construe or describe the scope or extent of
such section, or in any way affect this Agreement.
12.4 ASSIGNMENT. Neither party shall have any right or ability to assign
(including any assignment by operation of law), transfer, or sublicense any
obligations or benefit hereunder without the written consent of the other
party; provided, however that, other than in connection with a Change of
Control of ChannelPoint, either may assign and transfer this Agreement in whole
or in part without the consent of the other party in whole or in part to a
parent or subsidiary corporation or to a successor to the entire business of
such party, directly or indirectly, by way of merger, consolidation or sale of
all or substantially all of its stock or assets or to a subsidiary of any such
successor. This Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns.
12.5 DESIGNATION OF GEFA AFFILIATES. ChannelPoint acknowledges that GEFA
may delegate duties or obligations under this Agreement to any GEFA Affiliates
(as defined below), provided that GEFA remains ultimately liable for the
performance of such obligations, and GEFA may designate any GEFA affiliate to
receive the benefits owed to GEFA under this Agreement. For purposes of this
Agreement, a "GEFA AFFILIATE" is any entity in which GEFA, directly or
indirectly, owns or controls more than fifty percent (50%) of the total
outstanding voting power.
12.6 FORCE MAJEURE. Each party will not be liable for any failure to
fulfill its obligations hereunder due to causes beyond its reasonable control,
including acts or omissions of government or military authority, acts of God,
shortages of materials, telecommunications failures (including any systemic
Internet failures and any interruptions in services of Internet Service
Providers), transportation delays, earthquakes, fires, floods, labor
disturbances, riots or wars (a "FORCE MAJEURE EVENT"). If a Force Majeure Event
continues for sixty (60) days or more, the party awaiting performance from the
party suffering the Force Majeure Event may terminate this Agreement
immediately upon written notice to such party.
12.7 INDEPENDENT CONTRACTORS. The parties to this Agreement are
independent contractors, and no agency, partnership, joint venture or
employee-employer relationship is intended or created by this Agreement.
12.8 NOTICE. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand or mailed by
registered or certified mail, return receipt requested, first class postage
prepaid, addressed as set forth below. If delivered personally, the date on
which a notice, request, instruction or document is delivered shall be the date
on which such delivery is made and, if delivered by mail, the date on which
such notice, request, instrument or document is received shall be the date of
delivery. Any party hereto may change its address specified for notices herein
by designating a new address by notice in accordance with this Section.
(A) If to GEFA:
GE Financial Assurance
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Attn: Xxxxxx Xxxxxx
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
(B) If to CHANNELPOINT:
ChannelPoint, Inc.
Attn: General Counsel
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
12.9 This Agreement, including the items attached hereto, sets forth the
entire understanding and agreement of the parties on this matter and supersedes
any and all oral or written agreements or understandings between the parties as
to the subject matter of this Agreement. This Agreement may be modified only by
a writing signed by both parties.
IN WITNESS WHEREOF, each party has executed this Agreement on its behalf,
all on the day and year first above written.
GE FINANCIAL ASSURANCE HOLDINGS, INC. CHANNELPOINT, INC.
Signature: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------- ------------------------------
Printed Name: Xxxxxx X. Xxxxxx Printed Name: Xxxxxxx X. Xxxxxx
------------------------ -------------------
Title: SVP - GEFA Title: President and CEO
-------------------------------- ---------------------------
Date: 11/12/99 Date:
--------------------------------- ----------------------------
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EXHIBIT A
SERVICE DESCRIPTION
DESCRIPTION OF INSURE SERVICES
o Electronic individual and group interface to ChannelPoint Commerce
services that enables electronic transfer of captured application
information to the Insure system.
o Product Modeling support for group health, life and disability: individual
term life and long-term care.
o Customizable workflow engine that enables GEFA to codify the workflow
steps and business rules required to process applications.
o Integrated messaging that can automatically generate status messages via
email or fax as applications move through the workflow.
o Underwriting/workflow rules engine to enable routing of cases through the
workflow based on defined risk factors.
o Customizable underwriting desktop that enables GEFA to define a rollup of
risk factors relevant to the lines of business being processed and based
on GEFA business practices.
o Underwriting drilldown to enable individual underwriters to review key
risk factors and view relevant application information from the Insure
desktop.
o Automated generation of acceptance letters (where applicable to the line
of business).
o Integrated rating and product modeling environment to enable final rating
based on risk factors (for relevant lines of business).
o Application installation interface to electronically transfer customer
information into legacy systems.
A-1
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EXHIBIT B
INSURE PLATFORM LICENSE TERMS AND CONDITIONS SUPPLEMENT
This Insure Platform License Supplement (this "SUPPLEMENT") governs GEFA's use
of the Insure Platform for the field of use specified in the Agreement on
computer systems owned by or leased to GEFA at any GEFA facility or the
facilities of a GEFA outsource service provider operating the Insure Platform
solely on GEFA's behalf. All terms, conditions and limitations specified in the
Agreement shall apply to the licenses and obligations specified in this
Supplement.
1. GRANT OF LICENSE. Subject to the terms of this Agreement, ChannelPoint grants
GEFA a perpetual (subject to termination as provided in Section 3,
nonsublicensable, non-transferable, non-exclusive right to use (a) the Insure
Platform for internal purposes only and in accordance with the applicable user
documentation provided by ChannelPoint and subject to the restrictions set forth
herein and in the Agreement, and (b) application program interface for the
Insure Platform, through which GEFA may integrate the Insure Platform with and
into other software running on GEFA's computer systems (the "APIS"), solely for
GEFA's integration of its systems with the Insure Platform and to create
application programs that access the API's ("APPLICATION PROGRAMS"). GEFA may
not permit any third party to use or access the APIs or view the documentation
thereto, except that GEFA may permit a third party contractor to use and access
the APIs and associated documentation in order to permit such contractor to
integrate the Insure Platform with GEFA's systems, provided that such
contractors are informed that the APIs are proprietary to ChannelPoint and are
bound by written agreement to maintain the APIs in strict confidence.
ChannelPoint and its licensors retain ownership of the Insure Platform, APIs,
and all copies and portions thereof and all rights not expressly granted herein
are reserved by ChannelPoint. GEFA may not use the Insure Platform or APIs for
any purpose or in any manner not expressly permitted in this Supplement or in
the Agreement.
2. RESTRICTIONS. GEFA may not copy any Insure Platform software except as
reasonably required to use the Insure Platform as permitted hereunder and except
for one copy which may be made solely for back-up purposes. GEFA must reproduce
and include the copyright notice and any other notices that appear on the
original Insure Platform software on any permitted copies and any media
therefor. GEFA acknowledges that the Insure Platform contains certain third
party programs which may include routines to ensure conformity with the terms of
the licenses granted in this Agreement. ChannelPoint shall use commercially
reasonable efforts to inform GEFA of any such routines that come to the
attention of ChannelPoint. Except as expressly permitted under Section 1, GEFA
shall not (and shall not allow any third party to) (i) decompile, disassemble,
or otherwise reverse engineer or attempt to reconstruct or discover any source
code or underlying ideas or algorithms or file formats or programming or
interoperability interfaces of the Insure Platform or of any files contained or
generated using the Insure Platform by any means whatsoever, (ii) remove any
product identification, copyright or other notices, (iii) provide, lease, lend,
use for timesharing or service bureau purposes or otherwise use or allow others
to use the Insure Platform, APIs or any portion thereof to or for the benefit of
third parties, (iv) modify, incorporate into or with other software or create a
derivative work of any part of
B-1
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the Insure Platform, (v) disseminate performance information or analysis
(including, without limitation, benchmarks on the APIs) from any source
relating to the Insure Platform, or (vi) permit or encourage any third party to
do the foregoing. GEFA has no right to receive any source code or design
documentation relating to the Insure Platform, except as otherwise provided in
this Agreement and, with respect to design documentation, ChannelPoint shall
provide access to limited design documentation as necessary and appropriate for
GEFA to fully access and use the API's. To the extent that applicable law would
permit GEFA to reverse-engineer the Insure Platform, GEFA agrees to negotiate
with ChannelPoint in good faith prior to such undertaking on the terms under
which ChannelPoint would grant access to the source code. GEFA recognizes and
agrees that there is no adequate remedy at law for a breach of this Section 2,
that such a breach would irreparably harm ChannelPoint and that ChannelPoint is
entitled to seek equitable relief (including, without limitation, injunctions
with respect to any such breach or potential breach) in addition to any other
remedies available at law.
3. TERMINATION OF LICENSE. This licenses granted under this Supplement will
terminate automatically if GEFA fails to cure any material breach of this
Supplement within thirty (30) days after written notice is provided to GEFA
specifying the breach in reasonable detail and demanding its cure; provided that
if such breach is not capable of cure within such thirty-day period, GEFA shall
provide to ChannelPoint within the thirty-day period a written plan reasonably
acceptable to ChannelPoint to cure such breach and be diligently executing such
plan within the thirty-day period. Upon any termination, GEFA shall promptly
cease all use of the Insure Platform and APIs and return or destroy all copies
of the Insure Platform and APIs and all portions thereof and so certify in
writing to ChannelPoint.
4. LIMITED WARRANTY AND DISCLAIMER.
(a) Functionality. ChannelPoint warrants and represents to GEFA that for a
period of ninety (90) days from GEFA's installation of the initial version of
the Insure Platform that such Insure Platform, when operated in conformance with
this Agreement, will materially conform to ChannelPoint's then-current published
documentation for such Insure Platform, as delivered to GEFA. GEFA acknowledges
that the proper operation of the Insure Platform requires dedicated hardware and
software resources of the computer server on which it operates (the
"CHANNELPOINT SERVER"). Accordingly, the warranty provided in this Section 4(a)
is void if GEFA operates any other computer programs on the ChannelPoint Server,
including any GEFA programs that access the APIs, other than the system programs
required for proper operation of the Insure Platform; provided, however, in the
event that ChannelPoint releases a future version of the Insure Platform in
which such restrictions are no longer applicable and such new version is
installed by or on behalf of GEFA, this provision shall no longer apply to GEFA.
This warranty covers only problems reported to ChannelPoint during the foregoing
warranty period.
(b) Ownership. ChannelPoint warrants and represents that it owns all right,
title and interest in or has the right to license the Insure Platform to GEFA
and that the Insure Platform (solely in the form delivered to GEFA) will not
infringe any patent, copyright, trademark, database, trade secret or other
intellectual property right of any third party. In the event of any breach of
the warranty and representation specified in this Section 4(b), ChannelPoint's
sole obligation and GEFA's sole remedy is specified in Section 6 below.
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(c) Year 2000. ChannelPoint warrants and represents to GEFA that the Insure
Platform (solely in the form delivered to GEFA), when operated in accordance
with the documentation, are Year 2000 Compliant (as defined below). GEFA
acknowledges that the capability of the Insure Platform to manage and manipulate
date-related information appropriately depends on the quality of information
imported or input into the Insure Platform, including the presence of adequate
indicators of century in such information. ChannelPoint disclaims any warranty
relating to the quality of any such imported or input information. "YEAR 2000
COMPLIANT" means that the Insure Platform shall be able to provide specific
dates and calculate spans of dates, and to record, store, process and provide
true and accurate dates and calculations for dates and spans of dates within and
between the twentieth and twenty-first centuries prior to, including and
following January 1, 2000, including by: (i) correctly processing correctly
inputted day and date data; (ii) recognizing September 9, 1999 as a valid date;
(iii) recognizing the year 2000 as a leap year having 366 days, and correctly
processing February 29, 2000 as a valid leap year date; and (iv) employing only
four-digit year internal year representations. Any claims brought under this
Section 4(c) must be brought within (90) days after January 1, 2000.
(d) Exclusive Remedies. ChannelPoint's sole liability for any breach of the
warranties specified in this Section 4 (except as otherwise provided herein)
shall be at ChannelPoint's sole discretion to (i) promptly use diligent efforts
to revise the Insure Platform such that it conforms with the foregoing
warranties, (ii) to replace the non-conforming Insure Platform software with
Insure Platform software that conforms with the foregoing warranties, or (iii)
refund sums paid therefor.
(e) Disclaimer. EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND AND CHANNELPOINT HEREBY EXPRESSLY DISCLAIMS ANY AND
ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY,
RELATING TO THE INSURE PLATFORM INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CHANNELPOINT
DOES NOT WARRANT OR REPRESENT THAT THE USE OF THE INSURE PLATFORM WILL BE
UNINTERRUPTED OR ERROR-FREE OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE,
OR THE RESULTS OF THE USE, OF THE INSURE PLATFORM OR WRITTEN MATERIALS IN TERMS
OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. GEFA understands that
ChannelPoint is not responsible for and will have no liability for hardware,
software, or other items or any services provided by any persons other than
ChannelPoint.
5. NO EXPORT. GEFA acknowledges that the laws and regulations of the United
States restrict the export and re-export of commodities and technical data of
United States origin, including the Insure Platform and APIs. GEFA agrees that
it will not export or re-export the Insure Platform or APIs from the United
States or the country originally shipped to by ChannelPoint in any form, without
the appropriate United States and foreign governmental licenses.
6. INDEMNITY. ChannelPoint shall defend GEFA and pay any resulting damages,
costs and expenses finally awarded to a third party or paid in settlement of
any claims, suits or proceedings brought against GEFA by any third party that
alleges that the Insure Platform, or GEFA's use thereof, infringes any patent
issued as of the Effective Date of the Agreement, copyright, trademark or other
intellectual property right of a third party; provided that GEFA provides
ChannelPoint (a) prompt written notice of
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the existence of such claim, suit, action or proceeding, (b) sole control over
the defense or settlement of such claim, and (c) assistance at ChannelPoint's
request and expense to the extent reasonably necessary for the defense of such
claim or suit. GEFA may, at its own expense, participate in the defense of such
claim with counsel of its own choosing. The foregoing sets forth ChannelPoint's
sole and exclusive obligation and GEFA's sole and exclusive remedy for any
claim of intellectual property infringement or misappropriation.
Notwithstanding the foregoing, ChannelPoint shall not indemnify GEFA for any
claims based on (i) any GEFA or third party intellectual property or software
incorporated in or combined with the Insure Platform where in the absence of
such incorporated item, the Insure Platform would not have been infringing,
(ii) Insure Platform software that has been altered or modified by GEFA or any
third party without ChannelPoint's consent where in the absence of such
alteration or modification the Insure Platform would not be infringing; and
(iii) any use of a superseded version of the Insure Platform for which
ChannelPoint has made available an updated, revised or repaired version which
is not infringing. Upon notice of any claim of infringement or upon reasonable
belief of the likelihood of such a claim, ChannelPoint shall, at its option,
(A) obtain the rights to continued use of the Insure Platform, (B) substitute
other suitable, functionally-equivalent, non-infringing software, or (C)
replace or modify the Insure Platform so that it is no longer infringing.
7. MAINTENANCE SERVICES.
(a) Maintenance Program. Subject to the timely payment of applicable
maintenance fees, ChannelPoint shall provide Maintenance to GEFA for the Insure
Platform. "MAINTENANCE" means ChannelPoint's maintenance services under the
Maintenance Program, which currently consist of: (i) ChannelPoint delivering to
GEFA all updates, modifications, enhancements, and new versions or releases of
Insure Platform which are generally made available to other Maintenance Program
participants at no charge, (ii) telephone support during normal Maintenance
Program hours (currently weekdays from 6am-6pm Mountain Time, excluding federal
holidays), and (iii) error corrections which are generally made available to
other Maintenance Program participants at no charge. ChannelPoint may from time
to time revise its Maintenance Program offerings at its sole discretion.
Maintenance shall be provided solely to the Technical Contacts designated by
GEFA in writing. ChannelPoint will support only the two (2) most recent major
general releases of the Insure Platform, provided that ChannelPoint agrees to
support each major general release for at least two (2) years.
(b) Telephone Support and Error Correction. ChannelPoint shall exercise
commercially reasonable efforts to correct any error in the current unmodified
release of Insure Platform which is reported by GEFA such that the Insure
Platform shall perform in accordance with the applicable user documentation. If
the error was solely within the Insure Platform, ChannelPoint shall deliver the
correction or workaround to GEFA promptly after creating such. All other
corrections may be delivered under the next scheduled error-correction release
under the Maintenance Program. If GEFA reports a problem that is scheduled by
ChannelPoint to be solved in a later incremental release, ChannelPoint may
address such correction in such release. If ChannelPoint demonstrates that a
problem reported by GEFA is not due to an error in the Insure Platform,
ChannelPoint will so notify GEFA and may at ChannelPoint's discretion provide
GEFA an opportunity to have ChannelPoint address the error at GEFA's expense
under ChannelPoint's then-current consulting rates on an as-available basis for
ChannelPoint's resources. If GEFA instructs ChannelPoint that it does not wish
the problem pursued, or if such determination requires effort in excess of
GEFA's instructions,
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ChannelPoint may, at its sole discretion, elect not to investigate the error.
GEFA agrees to pay ChannelPoint at ChannelPoint's standard rates for all effort
expended towards resolution of a problem which is later determined to result
from any cause other than an error in the Insure Platform subject to the
provisions of Section 5 of the Agreement.
(c) Certain Exclusions. ChannelPoint shall have no obligation to offer
Maintenance for: (i) altered, damaged or modified Insure Platform software or
all or any portion of the Insure Platform if incorporated into other software
not furnished by ChannelPoint; (ii) software that is not one of the releases
currently supported under the Maintenance Program; (iii) problems caused by
abuse or misapplication or use of the Insure Platform other than as specified
in the ChannelPoint-published documentation, or; (iv) Insure Platform software
installed on any computer hardware that is not supported by ChannelPoint in
connection with ChannelPoint's published support policies.
8. APPLICABLE PROVISIONS. Unless expressly provided to the contrary elsewhere in
this Supplement or in the Agreement, all provisions of the Agreement, including
the Limitation of Liability provisions specified in Section 10 thereof, shall
apply to all rights and obligations of the parties under this Supplement.
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EXHIBIT C
SERVICES ADDENDUM
Client desires to retain ChannelPoint to provide certain services under
the terms hereof. This Services Addendum is an attachment and a part of the
agreement referring to this Addendum (the "AGREEMENT") between ChannelPoint and
the client listed on such Agreement , and is incorporated therein by reference.
This Addendum sets forth terms additional to, and not in lieu of, the
Agreement. Capitalized terms used but not defined herein shall have the same
meanings as in the Agreement.
1. STATEMENT OF WORK. ChannelPoint agrees to render consulting services to
Client as set forth in a Statement of Work attached to this Addendum
("SERVICES"), which shall include, if applicable, (a) a definition of the scope
of the work, (b) a definition of the deliverable items that are to be provided
to GEFA by ChannelPoint (the "DELIVERABLES"), (c) applicable acceptance
criteria, (d) milestones and target delivery dates, (e) the responsibilities of
each party, and (f) specifications for operating environment, in which the
Deliverables will be used. If the Services are to be provided on Client's
premises (i) Client shall provide safe and adequate space, power, network
connections and other resources as requested by ChannelPoint, and (ii)
ChannelPoint shall adhere to Client's established written guidelines concerning
on-site visits by contractors and the use of Client's computer equipment, if
such written guidelines have been previously provided to ChannelPoint.
2. PROJECT ADMINISTRATION. The Contact for Client shall provide ChannelPoint
all assistance and guidance necessary for the performance of the Services. Such
Contact shall be responsible for the review of the Services and invoices
therefor.
3. COMPENSATION. ChannelPoint shall be paid the fees at the time and materials
rates set forth in Schedule 1 attached hereto for time spent performing the
Services. Upon each anniversary date of the Effective Date of the Agreement,
ChannelPoint may, upon thirty (30) days prior written notice, revise the time
and materials rates applicable to the Services performed during the following
year. Client shall also reimburse ChannelPoint for reasonable travel, lodging
and meal expenses for Services performed outside of ChannelPoint's site which
ChannelPoint is required to incur in providing the Services, in accordance with
GEFA's standard expense reimbursement policies. ChannelPoint shall provide
Client with invoices detailing the consulting hours, fees and expense
reimbursements due ChannelPoint, and shall itemize and provide receipts for
expenses over two hundred dollars upon request. Client shall be responsible for
all taxes associated with the Services and the payment of fees for the Services
except taxes based on ChannelPoint's net income. Client's payment is due within
thirty (30) days of receipt of the ChannelPoint invoice. All prices are in U.S.
dollars except as expressly stated otherwise.
4. LICENSE. Client acknowledges that in order to perform the Services,
ChannelPoint may be required to have access to certain Client software or other
material of Client ("CLIENT MATERIAL"). Client grants to ChannelPoint a
non-exclusive, non-transferable license to use such Client Materials solely as
required for ChannelPoint's performance of the Services hereunder and as
approved in writing by
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Client. Subject to Client's prior written approval, which approval shall not be
unreasonably withheld, ChannelPoint shall have the right to sublicense such
grant solely to the extent that ChannelPoint requires to secure assistance for
the performance of the Services for Client.
5. OWNERSHIP.
(a) Ownership of Deliverables. Except as set forth elsewhere in subsection
(b) below, Client shall be the sole owner of all intellectual property rights
in and to all Deliverables, which rights shall be included in the definition of
"GEFA PROPERTY" as specified in Section 4.6(b) of the Agreement. If any
Deliverable is identified as a "REUSABLE ITEM" in any Statement of Work, then
Client grants ChannelPoint a perpetual, non-exclusive and royalty-free license
to use, reproduce, create derivative works, modify and distribute such
Deliverable in connection with ChannelPoint's business. The Deliverables do not
include the GEFA Property or the ChannelPoint Property, ownership of which is
specified in Section 4.6 of the Agreement.
(b) Ownership of ChannelPoint Property. As between Client and
ChannelPoint, ChannelPoint shall be the sole owner of all intellectual property
rights in and to (i) any invention or innovation conceived or developed by
ChannelPoint during the term of this Agreement in the performance of the
Services, except for any invention or innovation to the extent derived from any
business rules, formulas, rating rules, planning or modeling capabilities,
business logic or workflow configurations used in Client's business or other
information and specifications provided by Client (which inventions or
innovations shall be subject to subparagraph (a) above) or any Joint Inventions
specified in subsection (c) below and (ii) ChannelPoint or third party
technology existing prior to the effective date of any Statement of Work
(including but not limited to Insure((TM)) software any technology used to
provide the and Commerce((TM)) service and the tools that ChannelPoint uses in
providing services to third parties) and all related software, documentation,
computer languages, methods, methodologies and algorithms, and any and all
modifications to any of the above. The items specified in (i) and (ii) above
shall be included in the definition of "CHANNELPOINT PROPERTY" as specified in
Section 4.6(a) of the Agreement. To the extent that any ChannelPoint Property
is included within a Deliverable or is necessary to use a Deliverable,
ChannelPoint grants Client a perpetual, non-exclusive and royalty-free license
to use such ChannelPoint Property only in connection with such Deliverable.
(c) Ownership of Joint Property. All algorithms, designs, drawings,
formulae, know-how, ideas, inventions, processes, software, specifications, and
other forms and types of technology ("TECHNOLOGY"), in each case whether or not
patentable, other than any Technology included in the GEFA Property or the
ChannelPoint Property, that are discovered, made, authored or conceived jointly
by ChannelPoint and Client personnel (including its employees and consultants)
for which, where relevant, such personnel would be considered joint inventors
under United States Patent Act or joint authors under the United States
Copyright Act, shall be the joint property of ChannelPoint and Client, and
ChannelPoint and Client shall jointly own any and all intellectual property
rights associated therewith ("JOINT INVENTIONS"). All Joint Inventions, shall
be owned in equal undivided interests by ChannelPoint and Client, with no
royalty payment or accounting to the other party. The parties will (i) execute
any and all documents necessary to effectuate such equal and undivided
interests to Joint Inventions, (ii) reasonably cooperate with the other party
with respect to providing information and
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preparing and filing any documents necessary, including patent applications, to
secure their rights with respect to Joint Inventions and; (iii) jointly share
expenses incurred in securing rights such as those associated with obtaining
and maintaining patents, copyrights or similar rights with respect to Joint
Inventions.
6. CHANGES TO STATEMENT OF WORK. If Client desires to change any item on the
Statement of Work (including without limitation Deliverables and schedules),
Client shall submit a written proposal to ChannelPoint detailing the changes.
ChannelPoint shall have fifteen business days to notify Client of the resulting
cost and schedule changes and whether ChannelPoint has the resources available
to make such changes to the Statement of Work. If ChannelPoint has adequate
resources to make the change, Client may accept the revisions and the Statement
of Work shall be amended accordingly. If Client and ChannelPoint are not able to
agree to the adjustment in the cost or schedule or other changes in the
Statement of Work, then the Statement of Work will remain unchanged.
7. CONFIDENTIALITY. Each party shall comply with all confidentiality
restrictions set forth in the Agreement with respect to any Confidential
Information exchanged by the parties while ChannelPoint is performing Services
under this Addendum.
8. LIMITED WARRANTY. ChannelPoint warrants the Deliverables to the extent
provided in Section 8.2(e) of the Agreement, and further warrants that the
Deliverables shall conform in all material respects with the specifications and
functionality set forth therefor in the Statement of Work attached to this
Addendum. ChannelPoint shall perform the services in a good and workmanlike
manner. Client's sole remedy and ChannelPoint's sole liability for a breach of
the foregoing shall be for ChannelPoint to reperform the nonconforming services
or correct the defective Deliverable or refund to Client all sums paid therefor.
CHANNELPOINT HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND
OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES
PROVIDED HEREUNDER AND DELIVERABLES, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 8 WITH RESPECT TO THE
DELIVERABLES, CHANNELPOINT DOES NOT WARRANT OR REPRESENT THAT THE DELIVERABLES
WILL BE FREE FROM BUGS OR THAT THE USE OF SUCH WILL BE UNINTERRUPTED OR
ERROR-FREE OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS
OF THE USE, OF THE DELIVERABLES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY,
OR OTHERWISE. Client understands that ChannelPoint is not responsible for and
will have no liability for hardware, software, or other items or any services
provided by any persons other than ChannelPoint, including without limitation
items supplied by Client.
9. CHANNELPOINT INDEMNITY. ChannelPoint agrees to indemnify and defend Client
for the Deliverables to the extent ChannelPoint indemnifies Client under Section
9.2 of the Agreement. The foregoing sets forth ChannelPoint's sole and exclusive
obligation and Client's sole and exclusive remedy for any claim of intellectual
property infringement or misappropriation.
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10. CLIENT INDEMNITY. Client shall indemnify and defend ChannelPoint from and
against any claims of injury arising from ChannelPoint's use of Client's
premises. Client warrants that the Client Materials and ChannelPoint's use
thereof will not infringe any patent, copyright, trademark or other intellectual
property right of a third party or misappropriate any third party trade secret.
Client agrees to indemnify, defend and hold harmless ChannelPoint from and
against any and all damages, loss, demands, fees, expenses, fines, penalties and
costs (including without limitation reasonable attorneys' fees, costs and
disbursements) incurred by ChannelPoint and arising from any claims, suits,
actions or proceedings brought against ChannelPoint by any third party that
alleges that all or any part of the Client Materials infringe any patent,
copyright, trademark or other intellectual property right of a third party or
misappropriate any third party trade secret except to the extent that the claim
is based on a combination of the Client Materials with the Deliverables.
11. APPLICABLE PROVISIONS. Unless expressly provided to the contrary elsewhere
in this Addendum or in the Agreement, all provisions of the Agreement, including
the Limitation of Liability provisions specified in Section 10 thereof, shall
apply to all rights and obligations of the parties under this Addendum.
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EXHIBIT D
SERVICE LEVEL AGREEMENT
ChannelPoint will make the Commerce Exchange available Sunday through Friday at
23 hours per day, with one downtime period of one hour each of those days. The
hour of the day for such planned downtime will be at the sole discretion of
ChannelPoint. Such downtime period is normally scheduled between 2300 and 0400.
ChannelPoint will make the Commerce Exchange available Saturday for 18 hours,
with one downtime period of 6 hours. The specific hours of such downtime period
will be at the sole discretion of ChannelPoint. Such downtime period is normally
scheduled between1800 and 0400.
The parties agree there will be additional downtime necessary from time to time
to accommodate environmental change issues in the ChannelPoint data center,
during which time it would be impracticable to invoke recovery at an alternative
data center; provided that ChannelPoint shall use its best efforts to give GEFA
advanced notice of such downtime.
The parties recognize that ChannelPoint has no control over response time over
the Internet. ChannelPoint has both a primary and backup link to the Internet
backbone, which both parties agree is reasonable to meet ChannelPoint's
responsibilities to provide service under this Agreement.
ChannelPoint and GEFA acknowledge that the service levels specified in this
Exhibit E are preliminary based upon early commercial versions of the Commerce
Exchange. ChannelPoint and GEFA will work together, as provided in Section 2.8
of the Agreement, to establish more rigorous standards based upon actual GEFA
business volume, GEFA volume commitments for Commerce Exchange business and
service levels established by other similar ecommerce businesses. In addition,
ChannelPoint and GEFA shall negotiate, in good faith, appropriate remedies for
any failure by ChannelPoint to adhere to the standards so established, taking
into account severity, loss of value resulting from such failure and industry
standards; provided that such remedies shall not be any less favorable than
those provided to other similarly-situated users of the Commerce Exchange.
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EXHIBIT E
GEFA CONTENT
CARRIERS/PROFESSIONAL MUST... USING ...
SERVICES ...
[...***...]
THE CONTENT LISTED ABOVE MAY BE UPDATED OR MODIFIED DURING THE TERM OF THE
AGREEMENT AS PROVIDED IN SECTION 4.2 HEREOF.
* CONFIDENTIAL TREATMENT REQUESTED
X-0
00
XXXXXXX X
PERMITTED USES OF GEFA CONTENT / GEFA MARKS
Exhibit F will be developed by GEFA and provided to ChannelPoint within ninety
(90) days after the Effective Date.
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EXHIBIT G
PAYMENT SCHEDULE AND TERMS
1. EXCHANGE SERVICE FEES.
(a) Fee Components. In consideration of the Commerce Exchange Services
and rights and licenses in and to the Insure Platform granted by
ChannelPoint, GEFA shall pay the following Exchange Service Fees,
subject to the provisions of subsections (b) and (c) and (d) below.
(i) GEFA Insurance Products. GEFA shall pay to ChannelPoint a fee
equal to:
(A) for any Insurance Products purchased by a Lead that is
quoted and purchased using through any Open Portal;
[...***...] of gross first year premium paid by a
Policyholder to GEFA for any LIFE INSURANCE Products and
[...***...] of gross renewal premium; or
[...***...] of gross first year premium paid by a
Policyholder to GEFA for any LONG TERM CARE ("LTC")
INSURANCE Products and [...***...] of gross renewal
premium; or
[...***...] of gross first year premium paid by a
Policyholder to GEFA for any Annuity Products and
[...***...] of gross renewal premium; or
[...***...] of gross first year premium paid by a
Policyholder to GEFA for any DISABILITY AND HEALTH INSURANCE
Products and [...***...] of gross renewal premium; or
GEFA will calculate and report and pay commissions due
ChannelPoint no less frequently than monthly.
(B) for any Insurance Products purchased by a Lead that is
quoted and purchased using through any Branded Portal, or
GEFA appointed intermediary, or GEFA Employee service fees
equal to
[...***...] of all first year gross premiums paid by a
Policyholder to GEFA for any LIFE INSURANCE Products (except
for single premium deposit Life Insurance Products) or
[...***...] per policy, whichever is greater; or
* CONFIDENTIAL TREATMENT REQUESTED
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[...***...] of all first year gross premiums paid by a
Policyholder to GEFA for any LTC INSURANCE Products or
[...***...] per policy, whichever is greater; or
[...***...] of all first year gross premiums paid by a
Policyholder to GEFA for any ANNUITY Products and single
premium deposit Life Insurance Products, or [...***...] per
policy, (whichever is less) for fixed annuities or
[...***...] (whichever is less) for variable annuities or
single premium Life Insurance Products; or
[...***...] of all first year gross premiums paid by a
Policyholder to GEFA for any HEALTH OR DISABILITY INSURANCE
Products or [...***...] per policy, whichever is greater.
(ii) Third Party Carrier Products. With respect to any insurance
products provided by any third party carriers through any
Semi-Private Branded Platform, the GEFA shall pay ChannelPoint a
fee equal to:
(A) if GEFA is the Market Maker (as defined below),
ChannelPoint will receive [...***...] and GEFA
[...***...] of the total aggregate distribution fee,
commission or other consideration provided to GEFA by
such third party carrier for such sale (the "THIRD
PARTY COMMISSIONS"); or
(B) if ChannelPoint is the Market Maker (as defined below),
ChannelPoint will receive [...***...] and GEFA
[...***...] of the total aggregate Third Party
Commissions provided to ChannelPoint by such third
party carrier for such sale.
For purposes of this Section, a "MARKET MAKER" means
the party that enters into an agreement with the third
party carrier, pursuant to which the carrier pays
Third Party Commissions for the sale of insurance
products provided by the third party carrier. The
Exchange Service Fees under this subsection (b) accrue
upon receipt of any payment by GEFA under (i) or
ChannelPoint under (ii) and shall be payable on a
calendar quarterly basis in accordance with Section
5.1(c) of the Agreement.
(iii) Insure Platform Fees. In consideration for the rights granted
to GEFA under the Insure Agreement, GEFA shall pay ChannelPoint
the Insure Platform Fees equal to:
(A) for a period of five (5) years after the date of the
first commercial use of the Insure Platform by GEFA,
the lesser of (1) [...***...] of all gross premiums
paid by a Policyholder to GEFA and (2) [...***...], for
any Life, or LTC, or Health, Or Disability Insurance
Products purchased by such Policyholder where the
Insure Platform has performed
* CONFIDENTIAL TREATMENT REQUESTED
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any processing relating to the sale of such Insurance
Product, including, without limitation, processing for
the Insurance Underwriting Process and The Case
Management Process and The Insurance Fulfillment
Process.
(B) on an annual basis after such five (5) year period, a
maintenance fee equal to [...***...] of ChannelPoint's
then-current list price for annual platform fees to the
Insure Platform.
(iv) p.d.,q New Application Processing Fee. In consideration of an
internal use license granted to GEFA by ChannelPoint to certain
software programs known as p.d.,q. ("p.d.,q.") that has been
transferred to ChannelPoint by First Colony Life Insurance
Company ("First Colony") under the Assignment Agreement (as
defined in Section 11.2 of the Strategic Alliance Agreement),
GEFA shall pay to ChannelPoint [...***...] for each new insurance
application that has been processed by GEFA or any of its
affiliates using p.d.,q. after the Effective Date, including any
insurance application processed by GEFA or any of its affiliates
on behalf of any third party pursuant to licenses granted under
Article 4 of the Assignment Agreement. For purposes of
classification, all p.d.,q. New Application Processing Fees shall
be classified as Exchange Service Fees.
(b) Minimum Fees. The minimum quarterly Exchange Service Fees shall
be equal to: (i) [...***...] in each quarter of the calendar year
2000 and (ii) [...***...] in each calendar quarter of the
calendar years 2001, 2002, 2003 and 2004 subject to modification
as set forth in Section 5.1(b) of the Agreement.
(C) Commission Schedules. For each Insurance Product to be sold
through the Commerce Exchange, ChannelPoint and GEFA shall
execute a specific commission schedule that specifies certain
terms applicable to the payment of commissions and are in
general accordance with the rates set forth above.
2. MINIMUM PROFESSIONAL SERVICES FEES.
(a) Fee Schedule. The fees charged GEFA for professional services
shall be based on market justified rates for the skills
deployed. As of the effective date and continuing though
December 31, 2000, the applicable hourly rates for
ChannelPoint's Professional Service Fees are attached hereto as
Schedule 1; provided, however that [...***...].
(b) Minimum Fees. The minimum Professional Service Fees shall be
equal to a minimum of: (a) [...***...] by the end of calendar
year 1999; (b) [...***...] in each calendar quarter during the
calendar year 2000 (for a total of [...***...]
* CONFIDENTIAL TREATMENT REQUESTED
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by the end of calendar year 2000); and (c) [...***...] in each
calendar quarter of the calendar years 2001, 2002, 2003 and 2004
subject to modification and recovery as set forth in Section
5.2(b) of the Agreement.
* CONFIDENTIAL TREATMENT REQUESTED
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SCHEDULE 1 TO EXHIBIT G
STANDARD PROFESSIONAL SERVICES FEES
EFFECTIVE: 8/19/1999
Rating, rules and interface consultants [...***...] hr
Account Manager [...***...] hr
Technical Account Manager
Workflow and forms specialist
Plan Modeler
Web development [...***...] hr
* CONFIDENTIAL TREATMENT REQUESTED
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EXHIBIT H
SUMMARY OF INITIAL CONSULTING SERVICES
As part of the ChannelPoint's initial engagement to provide Consulting Services
relating to the implementation of the ChannelPoint Exchange and the Insure
Platform within GEFA, ChannelPoint and GEFA will cooperate in achieving the
following objectives: [...***...]
In order to accomplish these objectives, ChannelPoint agrees to provide the
following services under the Services Addendum:
[...***...]
* CONFIDENTIAL TREATMENT REQUESTED
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[...***...]
GEFA agrees to provide the following assistance in connection with the above
objectives:
[...***...]
TEAM RESOURCES AND PROJECT PLAN
GEFA and ChannelPoint will adopt a design methodology described below in
conducting the activities described in this Exhibit.
[...***...]
[...***...]
* CONFIDENTIAL TREATMENT REQUESTED
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TIER 1: CORE TEAM
Objectives: Provide leadership, prioritization, scope of work and other
Requirements Phase planning and analysis for the Work Teams. Core team members
will have clear goals, be the best and the brightest, have 100% commitment and
be strong in process, industry knowledge, and systems skills.
Requirements Phase Commitment: [...***...] (except for host city personnel).
Administrative person would be [...***...] during this period with no travel,
but must be located in host city.
GEFA Personnel
[...***...]
ChannelPoint Personnel
[...***...]
Deliverable: ChannelPoint will deliver to GEFA the high-level requirements for
implementing enhanced versions of the ChannelPoint Exchange (including Commerce)
and Insure products supporting the requirements of GEFA and the insurance
industry with respect to the Products (the "TIER 1 DELIVERABLE").
Timing: The Core Team will make reasonable efforts to hold its initial meeting
no later than thirty (30) days after the Closing Date. ChannelPoint will make
reasonable efforts to deliver to GEFA the Tier 1 Deliverable no later than
thirty (30) days after the initial meeting of the Core Team.
TIER 2: [...***...] WORKING TEAMS PER PRODUCT LINE
Structure: A working team for each of the [...***...] of LTC, Annuities, Life
and WorkSite. Thus, there would be a total of [...***...] working teams. Teams
may work concurrently, seriatim or some combinations, as determined by the
Steering Team and the Requirements Phase work.
Objective: During Requirements Phase, do detailed prioritization, scope of work
and other Requirements Phase planning and analysis for the Product Line Work.
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Xxxxxxxxxxxx Xxxxx Commitment:
o Full time commitment for the requirements phase (roughly [...***...]);
o GEFA Group: occasional travel for coordination and best practice meetings
o ChannelPoint Group: 100% travel during requirements phase
GEFA Working Team Personnel:
Each of the [...***...] Product Line Teams would consist of at least one
full time person from:
[...***...]
In addition, there would be at least [...***...] for each Product Line
from:
[...***...]
Additional Support As Needed from [...***...] and other areas
ChannelPoint Working Team Personnel
A minimum of [...***...] full time persons for each of the [...***...]
working teams
Deliverable: ChannelPoint will deliver to GEFA the detailed requirements for
implementing enhanced versions of the ChannelPoint Exchange (including Commerce)
and Insure products supporting the requirements of GEFA and the insurance
industry with respect to the Products (the "TIER 2 DELIVERABLE").
Timing: ChannelPoint will make reasonable efforts to deliver the Tier 2
Deliverable to GEFA no later than [...***...] after the date on which the Tier 1
Deliverable was delivered to GEFA. Both parties recognize the deliverable date
will be subject to prioritization and scoping of the high level requirements.
TIER 3: BUILD
Objectives: ChannelPoint's build and implementation for GEFA of enhanced
versions of the ChannelPoint Exchange (including Commerce) and Insure products
complying with the requirements set forth in the Tier 2 Deliverable.
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Deliverable: ChannelPoint will deliver to GEFA enhanced versions of the
ChannelPoint Exchange (including Commerce) and Insure products complying with
the requirements set forth in the Tier 2 Deliverable and will perform the
necessary installation services at the licensed GEFA sites to implement such
enhanced versions of the ChannelPoint Exchange (including Commerce) and Insure
products (the "TIER 3 DELIVERABLE").
Timing: ChannelPoint will make reasonable efforts to deliver the Tier 3
Deliverable to GEFA on date mutually agreed to based on the Tier 2 specific
requirements.
PROJECT MANAGEMENT
The relationship will evolve through various stages. The ChannelPoint and GEFA
Teams activities will be carried out via a phased approach, each of which will
be based on a [...***...] process.
REQUIREMENTS PHASE. In the Requirements Phase of the relationship, ChannelPoint
and GEFA Teams will focus on:
[...***...]
CHANNELPOINT BUILD PHASE: CHANNELPOINT Team builds the prototypes and actual
model in stages for its core technology and the GEFA Team provides assistance in
the form of feedback, additional information, validation of ideas and
requirements, brainstorming alternatives around obstacles. The work in this
phase encompasses the confirmation of business requirements, the creation of a
detailed design related to the new system, and the definition of the technical
architecture.
GEFA CUSTOMIZATION PHASE: GEFA Team customizes the enhanced ChannelPoint core
technology and modifies or customizes its existing systems to use the core
technology efficiently within its business. The ChannelPoint team will lend
assistance in the form of feedback, additional information, validation of ideas,
and brainstorming alternatives around obstacles.
In addition, as provided in the Strategic Alliance Agreement, ChannelPoint will
provide professional services to GEFA on this GEFA Customization Phase.
TESTING PHASE. The work in this phase encompasses ChannelPoint's deployment of
the system in a pilot implementation in GEFA's environment in Alpha and Beta
testing in order to assess the readiness to proceed with full rollout in the
Deployment Phase. GEFA will provide assistance in the form of
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feedback, additional information, validation of ideas, realistic test cases,
brainstorming alternatives, etc.
DEPLOYMENT PHASE: This phase encompasses ChannelPoint's rollout of the selected
hardware and tested application to full complement of GEFA's Intermediaries.
GEFA will provide assistance in the form of communications and associated
interface with Intermediaries.
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EXHIBIT I
CHANNELPOINT SERVICE ROADMAP
[...***...]
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EXHIBIT J
JOINT PLANNING ACTIVITIES
SUMMARY
GEFA and ChannelPoint agree to cooperate in the definition, planning and
prioritization of enhancements to the Commerce Exchange services and the Insure
Platform for application to the life, long-term care and annuity insurance
markets. This relationship is also expected to result in industry distribution
channels and customers having access to rate quotes, illustrations and proposals
and policy information to enable the purchase and administration of Insurance
Products via the Commerce Exchange.
OBJECTIVES OF THE RELATIONSHIP
Primary Objective: Enhance the ChannelPoint Commerce Exchange e-commerce
platform and Insure Platform client/server software products for both to be
internet enabled with increased functionality
As part of ChannelPoint's ongoing product improvement process, ChannelPoint
plans to enhance the Commerce Exchange and Insure Platform (and the technical
capabilities) to create a web based service for insurance carriers to be able to
execute electronically the following processes in support of the customer
engagement and fulfillment process (the "Core Technology"). The service will
enable carriers and their Intermediaries to transact the customer engagement and
fulfillment process in a significantly improved environment.
General industry goals of the improved environment include:
[...***...]
ChannelPoint will rely upon GEFA's expertise in order to assess the requirements
associated with the insurance goals identified above. Examples of relevant
insurance business processes include the following:
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[...***...]
* CONFIDENTIAL TREATMENT REQUESTED
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[...***...]
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DEFINITIONS
"BROWSER" means market accepted releases of Microsoft's Internet Explorer,
Netscape and their successors and other general accepted browsers.
"APPLICATION PACKAGE" means the insurance or other Product application in
electronic or image form, any payment made with application, information for
1035 exchanges, authorizations to process the application, including the
electronic signature, and any other documents required by a carrier to accompany
the application such as medical information.
"PRODUCTS" means Fixed Life Insurance (whole life and term), Variable Life
Insurance, Long Term Care Insurance (LTC), Fixed Annuities (Deferred and
Immediate), Variable Annuities, Disability Insurance and Dental Insurance,
unless otherwise specified.
"INTERMEDIARIES" means producers, Brokerage General Agencies/Agents, Brokers,
Banks, Worksite Enrollers and Securities Brokerage Firms and other like
distribution channel personnel and entities, including GEFA's captive agencies.
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