Exhibit 10.17
AGREEMENT BETWEEN MEDRISK, INC.
AND
AMERISAFE RISK SERVICES, INC.
THIS AGREEMENT ("Agreement") is made and entered into effective as of the
31st day of March, 2005, by and between Amerisafe Risk Services, Inc, on its
own behalf and on behalf of its affiliates and subsidiaries (collectively
referred to as "ARS"), a Louisiana corporation having its principal place of
business 0000 Xxx 000 Xxxx, XxXxxxxx, Xxxxxxxxx, 00000, and MedRisk, Inc, and
its affiliates and subsidiaries (collectively referred to as "MedRisk"), a
Pennsylvania Corporation having its principal place of business at 0000
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxx xx Xxxxxxx, Xxxxxxxxxxxx, 00000.
WHEREAS, ARS administers various insurance programs, including but not limited
to Worker's Compensation insurance programs to employers to provide and manage
appropriate remedial treatment, care and attendance to injured workers in
accordance with appropriate state laws through ARS's claims processing systems;
WHEREAS, MedRisk manages networks of providers and provides repricing,
utilization and management and business services to facilitate and expedite the
transmission of information and payments between providers of medical services
and commercial claim payers and to improve claim management effectiveness of
commercial claim payers; and
WHEREAS, the Parties desire to enter into this Agreement for MedRisk to provide
services listed below on the terms and conditions set forth herein for the
benefit of ARS, its affiliates and subsidiaries and for the benefit of ARS's
insureds and their injured workers.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
execution of this Agreement and other valuable consideration, the adequacy and
receipt of which is hereby acknowledged, and intending to be legally bound, the
parties agree as follows:
SECTION 1. DEFINITIONS
1.1 SYSTEM - means MedRisk's proprietary internet-based web enabled claims
management software products and services known as CLAIMExpert(SM), which
provides the following capabilities:
Facilitates and expedites the transmission of information between providers
of medical services and commercial claim payers, scans and digitizes
provider bills and supporting documents, routes and links this information
in electronic format, and archives and retrieves this information for use
by claim adjusters.
Electronically identifies and transmits to the commercial claim payers key
indicators of significant claim events, matches imported files of claim
data with medical bills received from medical providers and medical payment
recommendations developed by xxxx review agents, consolidates and evaluates
all medical payment recommendations, generates a funding request to the
commercial claim payer.
1.2 DOCUMENTATION - means the MedRisk materials describing the Services and
System, which includes all web-enabled updates, training tools, modules and
changes made to the system from time to time by MedRisk.
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1.3 SERVICES - means the services provided by MedRisk as described in the
Section 2 and Attachment A of this Agreement.
SECTION 2. MEDRISK'S OBLIGATIONS
2.1 MedRisk grants a non-exclusive, non-sublicensable enterprise-wide license
to ARS to use and have access to the System, Services and Documentation
pursuant to this Agreement.
2.2 In connection with the performance of its obligations under this Agreement,
MedRisk shall provide trained, competent and, where required by law or
coverage provision, licensed employees to perform the services rendered
hereunder in a manner commensurate with the highest professional standards
and in good faith.
2.3 MedRisk will deliver CLAIMExpert(SM) to ARS in accordance with a mutually
agreed upon time schedule and customized to ARS's business rules and to
state-specific requirements.
2.4 MedRisk will provide training ARS field claim offices in order to
facilitate optimum application of CLAIMExpert(SM) by ARS claim adjusters.
2.5 MedRisk will test CLAIMExpert(SM), prior to installation in each claim
office in order to reduce disruption to ARS's claim management processes.
2.6 MedRisk will maintain and provide enhancements to CLAIMExpert(SM)' in
accordance with reasonable ARS business requirements.
2.7 During the implementation stage of CLAIMExpert(SM) to ARS field claim
offices, MedRisk will meet the reasonable phasing demands of ARS which
require MedRisk development and training services.
SECTION 3. ARS'S OBLIGATIONS
3.1 ARS will promptly notify MedRisk when CLAIMExpert(SM) processes and
outcomes are not meeting ARS expectations and will cooperate with MedRisk
in identifying and constructing corrective actions.
3.2 ARS will pay MedRisk for CLAIMExpert(SM) according to the rates listed in
Attachment A.
3.3 ARS will use commercially reasonable efforts to adopt CLAIMExpert(SM) as
standard components for ARS's workers compensation claims processes.
3.4 ARS appoints MedRisk as its agent for receiving provider bills and
supporting documents naming ARS as payer and addressed to ARS.
3.5 Prior to authorizing MedRisk to receive provider bills and supporting
documents on behalf of ARS via third-party electronic data transmission
facilities, ARS will agree to comply with any reasonable material terms of
the agreements between MedRisk and third-party electronic data transmission
facilities which are disclosed by MedRisk to ARS.
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SECTION 4. PRICING AND PAYMENT TERMS
MedRisk and ARS agree to the pricing and payment terms and provisions as
set forth in Exhibit A.
SECTION 5. FUTURE VERSIONS OF THE SYSTEM
in the event the System is improved by MedRisk, the fees payable by ARS
under this Agreement will not be increased during the term hereof due to
any such improvements or upgrades to the System, unless otherwise agreed to
in writing by the parties.
SECTION 6. DISCONTINUANCE
In the event that MedRisk discontinues its support of the System or
discontinues its business, and support is no longer reasonably available
from any other source, then MedRisk shall furnish to ARS, upon ARS's
written request. Such documentation including source code, as ARS
reasonably requires to continue to use the System in accordance with this
Agreement. Upon delivery, ARS shall be entitled to make copies of, and
create derivative works based upon, such documentation to the extent
necessary for such continued use. In the event that MedRisk discontinues
support of the System or discontinues its business, MedRisk shall, upon
written request from ARS, provide ARS with the names of persons providing
support for the System. ARS agrees that in no event shall ARS market the
System, or any derivative based thereon, at any time to any third party.
Provided that MedRisk continues in business and offers the system for use
as part of its business, termination pursuant to Section 15 will not
trigger the provisions of this section.
SECTION 7. PROPRIETARY RIGHTS
MedRisk represents and warrants that it is the sole owner of all
proprietary rights and intellectual property associated with the System and
that it has the full right and authority to grant the license and make the
warranties set forth in this Agreement. MedRisk shall take all actions that
are necessary and appropriate for the full protection of its proprietary
rights in the System, including, without limitation, obtaining copyright
registrations on copyrightable aspects of the System and obtaining written
and executed license agreements with all users of the System or any portion
thereof. MedRisk's indemnification obligations with respect to claims of
infringement shall be as set forth in Section 10 below.
SECTION 8. WARRANTY ON SYSTEM
MedRisk represents and warrants that the System will perform substantially
in accordance with the Documentation during the term of this Agreement If
the System does not perform as warranted in this Section or Appendix A, ARS
will notify MedRisk and MedRisk will utilize reasonable commercial efforts
at no additional charge in order to correct or replace the defective
portions of the System.
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SECTION 9. REPRESENTATION AND WARRANTIES OF PARTIES
Each party warrants and represents to the other party that the transactions
and activities contemplated herein (i) are within the corporate powers of
such party; (ii) have been duly authorized by all necessary corporate
action of such party; (iii) constitute the legal, valid and binding
obligation of such party, enforceable against it in accordance with its
terms and (iv) do not and will not conflict with, result in a breach in any
of the provisions of, or constitute a default under the provisions of, any
law, regulation, licensing requirement, charter provision, by-law or other
instrument applicable to such party or its employees or which such party is
a party or may be bound.
The parties each reserve the right to enter into other agreements similar
to this Agreement with actual and potential competitors of each other, on
comparable or on different terms and conditions.
SECTION 10. INDEMNIFICATION
MedRisk shall defend and hold ARS harmless with respect to any claim that
the System infringes any patent, copyright, trade secret or other
intellectual property right of any third party, provided ARS promptly
notifies MedRisk in writing of any such claim and gives MedRisk reasonable
assistance in the defense of such claim MedRisk shall pay any damages and
costs awarded against ARS in connection with a claim for infringement under
this section. MedRisk shall have sole control over the resolution of any
claim; however, MedRisk shall obtain the prior written consent of ARS prior
to settlement. MedRisk shall have no liability or obligation to ARS with
respect to any such claim if such claim is based upon any modification of
the System made by ARS. In the event that any such claim of infringement is
made or threatened, or injunctive relief is granted to the third-party
claimant, MedRisk shall, at the option of ARS either: (a) obtain the right
for ARS to continue using the System; (b) provide a non-infringing
work-around; or (c) modify the System to render it non-infringing while
retaining like capability.
SECTION 11. MARKETING
ARS may, at its discretion, list MedRisk's name, address, telephone number,
public credentials and a factual description of MedRisk in ARS marketing
materials MedRisk shall provide ARS with accurate and appropriate
information on a timely basis.
ARS may incorporate CLAIMExpert(SM) into ARS's internal systems and claims
processes without attribution to MedRisk or specific identification of
CLAIMExpert(SM) as service components.
Both parties reserve the right to, and the control of, the use of their
respective names, symbols, trademarks and service marks, which they now use
or may later develop. In addition, neither party shall use the other
party's name, symbols, trademarks, or service marks in advertising,
promotional materials, press releases or other materials without the prior
written consent of the other party.
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SECTION 12. PRIVACY, CONFIDENTIALITY AND PROPRIETARY RIGHTS
12.1 Each party will comply with all applicable federal and state laws
protecting the privacy of individual claimants, including laws regulating
the use of medical information relating to the diagnoses, treatments,
prognoses and underlying medical conditions of claimants and the use of
personal information relating to a claimant's identity, activities or
financial status.
12.2 "Confidential Information" shall be defined as any confidential, non-public
or proprietary information, data or material, whether written, oral, via
computer disk or other electronic media, which Recipient may obtain
knowledge of through or as a result of the relationship established
hereunder with the Disclosing Party, access to the Disclosing Party's
premises, web application or server, or communications with its employees,
agents or contractors, including, without limitation, product, programs,
technical, systems, marketing, sales, process, financial, strategic, and
computer programming information personal, financial or health information,
negotiated contract rates, customer lists, lists of employees and agents,
hospitals, physicians and other provider agreements and related
information. Confidential Information also includes information of any
direct or indirect parent, affiliate or subsidiary of the Disclosing Party.
Recipient acknowledges that the Confidential Information is proprietary
information that constitutes trade secrets of the Disclosing Party, which
if disclosed could damage the Disclosing Party's business.
12.3 Each party acknowledges that the other party's Confidential Information
constitutes valuable property and trade secrets of that party, which are
entitled to protection. Each party shall hold all Confidential Information
of the other party in strict confidence, and neither party nor any of its
affiliates or representatives shall directly or indirectly (i) use or
permit the use of any of the other party's Confidential Information for or
in connection with development of competing products or services or for any
purpose other than the performance of this Agreement or fulfilling said
party's obligations under this Agreement, (ii) disclose or permit the
disclosure of any of the other party's Confidential information to any
person or entity other than the other party's affiliates or
representatives, or (iii) duplicate, copy, or disclose any of the other
party's Confidential Information except with the prior consent of the other
party, or except for review by such party's officers or affiliates or their
representatives. Each party acknowledges that the obligation to hold the
other party's Confidential Information in confidence and not to use, copy,
or disclose it shall not extend to the following information that would
otherwise constitute Confidential Information:
(a) Information that, at the time of the use, copying, or disclosure, was
readily ascertainable from public sources or was in its totality known by
or available to competitors, clients or customers of either party by
publication or otherwise, except for sources which arise by virtue of this
Agreement;
(b) Information that comes into a party's possession from a third party and
that was not acquired by such third party in violation of any obligation of
confidentiality; or
(c) Information required to be disclosed by law.
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In addition, either party may disclose Confidential Information of the
other party to the disclosing party's legal counsel.
12.4 Within ten (10) days after a party receives written request from the other
party for the return of Confidential Information, the receiving party shall
deliver to the requesting party all documents and other materials
constituting such Confidential Information, including all copies,
reproductions, extracts, and summaries of such Confidential Information in
its possession, use, or control. Any portion of the Confidential
Information that consists of analyses, computations, studies, or notes
prepared by the receiving party or its affiliates or representatives, shall
be either held by the receiving party or its affiliates or representatives
and kept confidential subject to the terms of this Agreement or destroyed.
12.5 Without in any way limiting any other obligations or liability of each
party under this Agreement, each party shall take all appropriate and
reasonable action, by instruction otherwise, to prevent the unauthorized
use, disclosure, copying, or reproduction of the Confidential Information
and to protect and maintain the confidentiality of the Confidential
Information. Each party shall advise its affiliates and representatives of
the terms of this section and use reasonable efforts to cause each of them
to comply with its terms. Each party shall immediately notify the other
party of the circumstances surrounding any breach of this Section of which
it becomes aware. Neither party shall attempt to access information not
necessary for its performance hereunder.
12.6 Both parties agree that money damages would not be a sufficient remedy for
any breach of confidentiality under this Agreement by the receiving party
and that the disclosing party shall be entitled to seek specific
performance as a remedy of any breach, in addition to all other remedies
available at law or in equity. In the event that the disclosing party takes
legal proceedings to protect its confidentiality or proprietary rights
pursuant to this Agreement, it shall be entitled to reimbursement by the
receiving party of reasonable legal fees and expenses incurred in
connection with such proceedings in the event the disclosing party shall
substantially prevail in its claims.
12.7 ARS shall be permitted to demonstrate the System as part of its marketing
and business development efforts and as part of its first notice of loss
processes.
12.8 MedRisk acknowledges and agrees that ARS is the owner of all data entered
into the System. Upon request of ARS, MedRisk shall provide access within
two (2) business days to ARS data entered into the System. MedRisk shall
not disclose to any third party any claimant or insured information
including, but not limited to, name, address, telephone number, diagnosis,
injury, medical history, treatment, claim number or any other personal
medical or financial information without the prior written consent of ARS.
SECTION 13. SECURITY
13.1 ARS reserves the right to monitor all network traffic between MedRisk and
ARS systems and may take actions to secure and protect such systems as
appropriate. ARS reserves
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the right to review MedRisk's perimeter security, connecting network and
any hardware connecting to ARS systems with appropriate notice provided to
MedRisk.
13.2 ARS shall determine the access methods and rights MedRisk shall have to all
ARS systems and information, including Confidential Information. MedRisk
shall comply with the authorization process for MedRisk users and
associated privileges.
13.3 MedRisk shall, at all times, maintain a list of individuals authorized to
access ARS systems and ARS Confidential Information, including each
individual user's rights and privileges with respect to such use. ARS shall
have the right to monitor user activity and revoke user access, as
determined in its sole discretion.
SECTION 14. INSURANCE AND INDEMNITY
14.1 MedRisk, at its sole expense, shall maintain, at all times while
obligations under this Agreement remain to be performed by MedRisk, the
following coverages and limits:
(a) Standard workers compensation insurance as required by law and
employers liability insurance with the limits of liability of no less than
one million dollars ($1,000,000);
(b) Commercial general liability insurance with the limits of liability of
no less than two million dollars ($2,000,000);
(c) Commercial umbrella liability insurance, with limits of no less than
one million dollars ($1,000,000);
(d) Errors and omissions liability insurance, with limits of no less than
five million dollars ($5,000,000); and
(e) Automobile liability insurance, with limits of no less than one million
dollars ($1,000,000).
14.2 Med Risk shall deliver to ARS upon its request a certificate of insurance
evidencing such coverages within ten (10) days of the execution of this
Agreement by both parties. Upon receipt of any notice of any cancellation,
change, amendment, or exclusion of such coverages, MedRisk shall, within
ten (10) days thereafter, procure other insurance coverages to replace the
items which are cancelled, changed, amended, or excluded.
SECTION 15. TERM AND TERMINATION
15.1 Initial Term. The Initial Term of this agreement shall commence on the
effective date first above written and shall continue for three (3) years.
Thereafter, this Agreement shall automatically renew for successive one (1)
year terms until and unless it is terminated as provided below.
15.2 Termination Without Cause. After the Initial Term, this Agreement may be
terminated without cause by either party upon at least ninety (90) days'
written notice.
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15.3 Breach of Agreement and Termination For Cause. This Agreement may be
terminated for cause at any time upon thirty (30) days' written notice by
either party in the event of one of the following events of default:
(a) By either party, in the event of a failure by the other party to
perform any material obligation under this Agreement in any material
respect if said failure is not corrected by the defaulting party within the
thirty (30) days' notice period; or
(b) By either party, if the other party becomes involved in a voluntary or
involuntary bankruptcy proceeding or otherwise becomes insolvent; or
(c) By either party, in the event of the failure of the other party to
maintain any of the licenses, certifications or accreditations necessary to
conduct the business required under this Agreements; or
(d) By either party in the event of a change in applicable state or federal
law or regulation, by virtue of the adoption or amendment of statutes,
rules or regulations or by administrative or judicial orders or decisions,
in a manner which significantly reduces or precludes either or both
parties' ability to perform under this Agreement.
15.4 Notwithstanding the termination of this Agreement as otherwise provided,
the provisions of this Agreement shall continue to apply to the extent
needed for all obligations and liabilities incurred by each party hereunder
prior to such termination to be fully performed and discharged by such
party.
SECTION 16. INDEPENDENT CONTRACTOR
The parties are independent entities. Nothing in this Agreement shall be
construed to create relationship of employer and employee, principal and agent,
joint ventures, partners, or any relationship other than independent
contractors. MedRisk and ARS assume full responsibility or the actions of their
respective employees while performing services pursuant to this Agreement and
shall be solely responsible for the payment of salaries, wages, and benefits of
such employees. MedRisk does not have the authority to act for ARS, to bind ARS
in any respect whatsoever or to incur any debts or liabilities in the name of or
on behalf of ARS.
SECTION 17. OBLIGATIONS AFTER TERMINATION
Each party will remain liable for any obligations or liabilities arising from
its conduct prior to termination.
SECTION 18. RECORDS RETENTION
MedRisk agrees to maintain all transaction information regarding Consumers on
the System for a period of one (1) year. The parties agree that all transaction
information regarding Consumers maintained in the System beyond one (1) year
shall be subject to a mutually agreed upon method of storage or transfer to
Client. MedRisk agrees to provide ARS access within two (2) business days to ARS
data entered into the System and stored by MedRisk.
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SECTION 19. AUDIT
The parties agree to perform an audit of MedRisk's obligations described in
Sections 2 3, 2.4, 2.5 and 2.6 at mutually agreed upon intervals. The audit
shall be performed by two (2) representatives of ARS and two (2) representatives
of MedRisk. Any adjustments or credits based on the results of such audit shall
be mutually agreed upon.
SECTION 20. NOTICES
Notices to ARS shall be made to the following address:
Amerisafe Risk Services, Inc.
0000 Xxx 000 Xxxx
XxXxxxxx, XX 00000
Attn: H. O. "Xxxxx" Xxxxxxx, IV
Notices to MedRisk shall be mailed to the following address:
MedRisk, Inc.
0000 Xxxxxxxxxxx Xxxx., Xxxxx 000
X.X Xxx 00000
Xxxx xx Xxxxxxx, XX 00000
Attn: Xxxxxxx X XxXxxx
All notices required or permitted hereunder shall be in writing and shall be
deemed to be properly given when personally delivered to a party or to any
officer or designated representative of a party entitled to receive the notice
or five (5) days after mailing when properly addressed and sent by certified or
registered first class mail, or upon receipt if transmitted by facsimile with
proof of delivery or by nationally recognized private overnight carrier with
proof of delivery to the party entitled to receive such notice at the
appropriate address.
SECTION 21. SEVERABILITY
The provisions of this Agreement are independent of and separate from each
other. If any one provision is determined to be invalid or unenforceable, it
shall not render any other provision invalid or unenforceable.
SECTION 22. ASSIGNMENT
Neither party shall transfer, assign, sub-contract or delegate in whole or in
part any of its rights or obligations under this Agreement without the prior
written consent of the other party, which consent cannot be unreasonably
withheld. Except for the prohibition on assignment contained in the preceding
sentence, this Agreement shall be binding upon and inure to the benefit of the
heirs, successors, and assigns of the parties hereto.
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SECTION 23. ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties, as to the
subject matter hereof, and may not be waived, altered, or modified except by
written agreement of the parties Any interpretation of this Agreement shall be
governed by Pennsylvania statutes and laws, including those relating to conflict
of laws.
IN WITNESS WHEREOF the parties have executed this Agreement effective as of the
date above written by their duly authorized officers for and on behalf of said
corporation.
MEDRISK, INC.:
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
Title: General Counsel
Date: 4/1/2005
AMERISAFE RISK SERVICES, INC.:
By: /s/ H.O. Xxxxxxx IV
----------------------------------
Name: H.O. "Xxxxx" Xxxxxxx
Title: Senior Vice President, Claims
Date: March 31, 2005
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