Exhibit 10.15
SECOND AMENDED INFORMATION SERVICES CONTRACT
THIS SECOND AMENDED INFORMATION SERVICES CONTRACT ("Agreement"), dated as
of October 1, 1997, is made by and between The Millers Mutual Fire Insurance
Company, a Texas mutual insurance company ("Millers Mutual"), The Millers
Casualty Insurance company, a Texas insurance company ("Millers Casualty"), and
INSpire Insurance Solutions, Inc., a Texas corporation formally known as
MiliRisk, Inc. ("INSpire" and together with Millers Mutual and Millers Casualty,
the "Parties").
PRELIMINARY STATEMENTS
A. Millers Mutual, INSpire and Millers Casualty are parties to an Amended
Information Services Contract (the "Prior Services Contract") pursuant to which
INSpire provides certain information system services to Millers Mutual and
Millers Casualty.
B. Millers Mutual, INSpire and Millers Casualty desire to amend in
its entirety the Prior Services Contract.
C. Millers Mutual and Millers Casualty desire to procure certain
information system services from INSpire in connection with the business of
Millers Mutual and Millers Casualty and INSpire is willing to provide such
services.
NOW, THEREFORE, in consideration of the foregoing preliminary statements
and the mutual covenants and agreements contained herein, the parties hereto,
intending to be legally bound hereby, agree as follows:
STATEMENT OF AGREEMENT
ARTICLE I.
DEFINITIONS
Unless the context otherwise requires, the terms defined in this Article I
shall, for the purpose of this Agreement, have the meanings herein specified:
"EFFECTIVE DATE" means October 1, 1997.
"FISCAL YEAR" shall mean the period from January 1 through December 31 of
each year.
"TERM OF AGREEMENT" means the period from the Effective Date until the
Agreement is terminated pursuant to Article 5.
ARTICLE II
DUTIES AND OBLIGATIONS OF INSPIRE
SECTION 2.1. INFORMATION SYSTEM SERVICES: INSpire shall provide
information system services for and on behalf of Millers Mutual and Millers
Casualty which shall include, but shall not be limited to:
(a) Telecommunications services;
(b) Hardware services;
(c) Application software services;
(d) System software services;
(e) Network services;
(f) System integration services.
ARTICLE III
CONDENSATION EXPENSES AND PAYMENT
SECTION 3.1. FEES. The compensation due INSpire from Millers Mutual
and Millers Casualty for services provided pursuant to Section 2.1 of this
Agreement is as follows:
Category A* Category B**
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Calendar Year Percent of Percent of Net Monthly Minimum
Direct Written Written Premium
Premium
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1997 6.0% 6.0% $375,000
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1998 5.5% 5.5% $300,000
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1999-2001 5.0% 5.0% $275,000
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* Category A represents premiums written by Millers Mutual and Millers
Casualty for which Millers Mutual and Millers Casualty utilize the
services provided pursuant to Section 2.1 to process policies and/or
claims.
** Category B represents premiums written by Millers Mutual and Millers
Casualty for which Millers Mutual and Millers Casualty utilize the
services provided pursuant to Section 2.1 to process management and bureau
report processing only.
At the request and approval of Millers Mutual and Millers Casualty, INSpire will
make modifications to INSpire supplied application software. Work will be done
at a rate of $130.00 per hour. Cost for any modifications required by Millers
Mutual and Millers Casualty of application software licensed by Millers Mutual
or Millers Casualty from sources other than INSpire will be the responsibility
of Millers Mutual and Millers Casualty.
SECTION 3.2. INVOICING AND PAYMENT. INSpire shall xxxx Xxxxxxx Mutual and
Millers Casualty monthly for services within 15 days after the end of each
calendar month during the Term of Agreement. Payment shall be made by Millers
Mutual and Millers Casualty within 30 days after the delivery of such invoice.
SECTION 3.3. LATE PAYMENT. Any amount owing from Millers Mutual and/or
Millers Casualty to INSpire that has not been paid by the due date shall be
subject to a late payment charge of 1% per month.
ARTICLE IV.
ACCESS TO INFORMATION, BOOK AND RECORDS
INSpire and its duly authorized representatives shall have access, to the
extent necessary to perform the services pursuant to Section 2.1, to each of
Millers Mutual's and Millers Casualty's offices, facilities, application
software and records wherever located, in order to discharge INSpire's
responsibilities hereunder; provided, however, Millers Mutual and Millers
Casualty shall provide and make available to INSpire and its duly authorized
representatives at INSpire's Fort Worth, Texas, USA offices, at INSpire's
request, all such records required by INSpire to perform its duties pursuant to
this Agreement. All records and materials furnished to INSpire by Millers Mutual
and Millers Casualty in performance of this Agreement shall at all times during
the Term of Agreement remain the property of Millers Mutual and Millers
Casualty, as appropriate.
ARTICLE V.
TERM AND TERMINATION OF THE AGREEMENT
SECTION 5.1. INITIAL TERM. This Agreement shall be effective from the
Effective Date and shall continue for five years thereafter (the "Initial
Term"); subject, however, to the, terms of Section 5.2 hereof. At the end of the
Initial Term, this Agreement shall continue in force and effect for subsequent
three (3) year periods unless terminated by any Party by written notice at least
180 days prior to the anniversary date of the Effective Date.
SECTION 5.2. TERMINATION. This Agreement may be sooner terminated on
the first to occur of the following:
a. TERMINATION BY MUTUAL AGREEMENT
In the event the Parties shall mutually agree in writing, this
Agreement may be terminated on the terms and dates stipulated
therein.
b. UNCORRECTED MATERIAL BREACH
In the event any Party shall fail to discharge any of its material
obligations hereunder, or shall commit a material breach of this
Agreement, and such default or breach shall continue for a period of
sixty (60) days after any other Party has served notice of such
default, this Agreement may then be terminated at the option of any
nonbreaching Party by notice thereof to the breaching Party.
SECTION 5.3. EFFECTS OF TERMINATION. Except for covenants or other
provisions herein that, by their terms, expressly extend beyond the Term of
Agreement, the Parties' obligations hereunder are limited to the Term of
Agreement.
SECTION 5.4. REIMBURSEMENT BY INSPIRE. In the event of termination under
this Agreement, INSpire shall reimburse Millers Mutual and Millers Casualty
within 30 days after such termination for fees paid by Millers Mutual and
Millers Casualty but unearned by INSpire.
SECTION 5.5. FORCE MAJEURE. If any Party shall be prevented from
performing any portion of this Agreement (except the payment of money) by causes
beyond its control, including labor disputes, civil commotion, war, governmental
regulations or controls, casualty, inability to obtain materials or services or
acts of God, the defaulting party shall be excused from performance for the
period of the delay and for a reasonable time thereafter.
ARTICLE VI.
INDEMNIFICATION OF INSPIRE
SECTION 6.1. LIMITATION OF LIABILITY. In providing services hereunder,
INSpire shall have a duty to act and cause its affiliates and designees to act
in a reasonably prudent manner. Neither INSpire, nor any officer, director,
employee or agent of INSpire shall be liable to Millers Mutual and/or Millers
Casualty for any error of judgment or for any loss incurred by Millers Mutual
and/or Millers Casualty in connection with the matters to which this Agreement
relates, except a loss resulting from the gross negligence or willful misconduct
on the part of INSpire.
SECTION 6.2. INDEMNIFICATION. Millers Mutual and Millers Casualty hereby
agree to indemnify and hold harmless INSpire from and against any and all
claims, causes of action, liabilities, damages, costs, charges, fees, expenses
(including reasonable attorney's fees and expenses to be reimbursed as
incurred), suits, orders, judgments, adjudications and losses of whatever nature
and kind which INSpire or its affiliates or designees or for which INSpire or
its affiliates or designees become liable as the result of the performance of
INSpire's obligations and duties pursuant to this Agreement; provided, INSpire
shall not be indemnified for gross negligence or willful misconduct on the part
of INSpire.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. RELATIONSHIP OF PARTIES. This Agreement does not create a
partnership, joint venture or association; nor does this Agreement or the
operations hereunder, create the relationship of lessor and lessee or xxxxxx and
bailee. Nothing contained in this Agreement or in any agreement made pursuant
hereto shall ever be construed to create a partnership or association, or the
relationship of lessor and lessee or xxxxxx and bailee, or to impose any duty,
obligation or liability that would arise therefrom with respect to either or
both of the Parties. Specifically, but not by way of limitation, except as
otherwise expressly provided for herein, nothing contained herein shall be
construed as imposing any responsibility on INSpire for the debts or obligations
of Millers Mutual or Millers Casualty or any of its affiliates. It is hereby
expressly understood that INSpire is hereby engaged by Millers Mutual and
Millers Casualty to provide information system services as an agent of Millers
Mutual and Millers Casualty. INSpire, its affiliates and designees shall have
the right to render similar services for other business entities and persons,
including its own, whether or not engaged in the same business as Millers Mutual
or Millers Casualty, and may enter into such other business activities as
INSpire and its affiliates, in their sole discretion, may determine.
SECTION 7.2. NO THIRD PARTY BENEFICIARIES. Except to the extent a third
party is expressly given rights herein, any agreement herein contained,
expressed or implied, shall be only for the benefit of the Parties and their
respective legal representatives, successors and assigns, and such agreements or
assumptions shall not inure to the benefit of any other party whomsoever, it
being the intention of the Parties hereto that no person or entity shall be
deemed a third party beneficiary of this Agreement except to the extent a third
party is expressly given rights herein.
SECTION 7.3. GENERAL REPRESENTATIONS. Each Party represents and warrants
that on the Effective Date: (i) it is a corporation, duly established, validly
existing and in good standing under the laws of its state or jurisdiction of
incorporation, with power and authority to carry on the business in which it is
engaged and to perform its respective obligations under this Agreement; (ii) the
execution and delivery of this Agreement have been duly authorized and approved
by all requisite corporate actions; (iii) it has all the requisite corporate
power and authority to enter into this Agreement and to perform its obligations
hereunder; and (iv) the execution and delivery of this Agreement do not, and
consummation of the transactions contemplated herein will not, violate any of
the provision of its charter or bylaws or any state or federal laws applicable
to them.
SECTION 7.4. ASSIGNMENT. No assignment of this Agreement or any of
the rights or obligations set forth herein by any Party shall be valid
without the specific written consent of the other Parties.
SECTION 7.5. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally, mailed by first class mail postage prepaid and return receipt
requested or sent by recognized overnight delivery service or facsimile
transmission to the address below indicated:
If to Millers Mutual: The Millers Mutual Fire Insurance Company
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attn: Xxx Xxxxxx
Facsimile: 817.348.3765
If to Millers Casualty: The Millers Casualty Insurance Company
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attn: Xxx Xxxxxx
Facsimile: 817.348.3765
If to INSpire: INSpire Insurance Solutions, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000-0000
Attn: Xxxxx X. Xxxxxx
Facsimile: 817.348.3786
Or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Notice
so given shall, in the case of notice so given by mail, be deemed to be given
and received on the fourth calendar day after posting, in this case of notice so
given by recognized overnight delivery service on the date of actual delivery
and, in the case of notice so given by facsimile transmission or personal
delivery, on the date of actual transmission or, as the case may be, personal
delivery.
SECTION 7.6. FAILURE TO PURSUE REMEDIES. The failure of any party to seek
redress for violation of, or to insist upon the strict performance of, any
provision of this Agreement shall not prevent a subsequent act, which would have
originally constituted a violation, from having the effect of an original
violation.
SECTION 7.7. CUMULATIVE REMEDIES. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party
shall not preclude or waive its right to use any or all other remedies. Said
rights and remedies are given in addition to any other rights the parties may
have by law, statute, ordinance or otherwise.
SECTION 7.8. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of all of the parties and, to the extent permitted by this
Agreement, their successors, legal representatives and assigns.
SECTION 7.9. INTERPRETATION. Throughout this Agreement, nouns, pronouns
and verbs shall be construed as masculine, feminine, neuter, singular or plural,
whichever shall be applicable. All references herein to "Articles," "Sections"
and paragraphs shall refer to corresponding provisions of this Agreement.
SECTION 7.10. HEADINGS. Headings are solely for convenience and ease
of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement.
SECTION 7.11. SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted unless such invalid or unenforceable
provision affects the fundamental purpose of this Agreement.
SECTION 7.12. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, with
the same effect as if all parties hereto had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument. This Agreement may also be executed and
delivered by exchange of facsimile transmissions of originally executed copies.
SECTION 7.13. INTEGRATION. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof
and supersedes all prior agreements and understandings pertaining thereto.
SECTION 7.14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW
OF CONFLICTS, OF THE STATE OF TEXAS.
SECTION 7.15. ARBITRATION.
(a.) To the fullest extent permitted by law, any controversy or claim
arising out of or relating to any alleged breach shall be resolved
by arbitration by a panel of three (3) arbitrators under the
American Arbitration Association ("AAA") Arbitration Rules in force
( the "AAA Rules") in accordance with the following:
(1.) In the event of any conflict between the AAA Rules and the
provisions of this Agreement, the provision of this Agreement shall
prevail.
(2.) Either party may refer a matter to arbitration by written notice to
the other party by giving notice as provided in this Agreement.
(3.) The place of the arbitration shall be in Fort Worth, Texas.
(4.) The claimant party shall appoint one arbitrator and the respondent
party shall appoint one arbitrator and the two arbitrators so
appointed shall appoint the third arbitrator, in accordance with the
AAA Rules. In the event of an inability to agree on a third
arbitrator, the appointing authority shall be the AAA.
(5.) The decision of the arbitrators shall be made by majority vote
and shall be in writing.
(6.) The decision of the arbitrators shall be final and binding on the
parties save in the event of fraud, manifest mistake or failure by
any of the arbitrators to disclose any conflict of interest.
(7.) The decision of the arbitrators may be enforced by any court of
competent jurisdiction and may be executed against the person and
assets of the losing party in any jurisdiction.
(b.) In the event any dispute is submitted to arbitration pursuant to
Section 7.15(a) above, the panel of arbitrators may, if it deems
such award appropriate, award a party costs and expenses incurred by
such party in enforcing its rights. Except as so awarded, each party
shall bear its own costs and expenses of enforcing its rights to
arbitrate under this Section 7.15
(c.) Except for arbitration proceedings pursuant to Section 7.15(a)
above, no action (other that the enforcement of any arbitration
decision) or lawsuit shall be brought by or between INSpire and
Millers Mutual and Millers Casualty concerning or arising out of
this Agreement.
SECTION 7.16. AGREEMENT TO PERFORM NECESSARY ACTS. Each party agrees to
perform any further acts and execute and deliver any and all further documents
and/or instruments, which may be reasonable necessary to carry out the
provisions of this Agreement and the transactions contemplated hereby.
(SIGNATURE PAGE TO FOLLOW)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
THE MILLERS MUTUAL FIRE INSURANCE COMPANY
By: /S/ XXX X. XXXXXX
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Name: Xxx X. Xxxxxx
Title: Executive Vice President and CFO
THE MILLERS CASUALTY INSURANCE COMPANY
By: /S/ XXX X. XXXXXX
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Name: Xxx X. Xxxxxx
Title: Executive Vice President and CFO
INSPIRE INSURANCE SOLUTIONS, INC.
By: /S/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
